John Eggerton

Executives from Microsoft met with Federal Communications Commission officials recently—including a top advisor to FCC Chairman Tom Wheeler—armed with some issues related to Chairman Wheeler's set-top box proposal, currently circulated to the commissioners for a vote, including that the company does not want the FCC to apply overbroad privacy certifications to navigation device makers or expand the definition of personally identifiable information (PII).

The company focused on the assertion that "the privacy protections that exist today for consumers of pay-TV providers will be preserved no matter what device is used.” Microsoft said that the FCC needs to clarify that any obligation to apply multichannel video programming distributor (MVPD) privacy rules "should apply only to data that is derived exclusively from the MVPD data stream. Overbroad application of the certification requirement would interfere with the collection and use of data to support other legitimate functions of multi-use devices, including operations to maintain the security of the device."

The Federal Communications Commission is the target of a lawsuit related to allegations that FCC employees were repeatedly watching porn at work, creating a hostile work environment for a fellow employee. The suit stems from 2012. On Oct 19, both the FCC and the plaintiff were granted more time by the Washington, DC US District Court for discovery in the ongoing case, with the FCC planning to depose the plaintiff and the plaintiff planning to depose an additional FCC employee. That plaintiff, a 30-year vet of the agency, filed suit charging she had been subjected to a hostile work environment, gender discrimination and two counts of retaliation. In April of 2016, the court dismissed three of the five charges against the commission—the FCC wanted four of the five dismissed and a summary judgment in its favor on the fifth.

With the Federal Communications Commission preparing to vote Oct 27 on a proposal that could for the first time sweep web browsing and app use histories into an opt-in regime, disallowing the sharing of that info by Internet service providers unless consumers give affirmative permission, critics are pulling out the stops to stop it. The FCC released its agenda for the Oct. 27 meeting and broadband privacy was still teed up.

Advertising associations, which see the new regime as a definite damper on the online ads that underwrite all that free web content, offered up a proposal which was essentially that the FCC not make web browsing or app history sensitive information subject to opt-in requirements, except when it involves information otherwise classified as sensitive. The proposal would require opt-in for traditional (under the Federal Trade Commission regulatory regime that used to apply to broadband categories) sensitive information, geolocation, children’s information, health information (e.g., pharmaceutical prescriptions or medical), financial information, Social Security numbers, and the content of communications (emails, texts, etc).

Add USTelecom to those trying to get the Federal Communications Commission not to apply a broad opt-in regime to the use and sharing of web browsing and app use histories by Internet service providers. FCC Chairman Tom Wheeler, in pivoting from a blanket opt-in for most third party sharing of user info to what was billed as a more Federal Trade Commission-like sensitivity approach based on the kind of info being shared and used, added web browsing and app use to the information classified as sensitive and needing opt in.

USTelecom, advertisers and others are trying to get the FCC back off that approach and instead only require opt in for web browsing and apps that include other traditional categories of sensitive information—health, finance, kids, Social Security numbers, geolocation and content of communications. In meetings with FCC officials this week, USTelecom president Walter McCormick and other USTelecom executives said that it was "essential that government agencies speak with one voice," which means the FCC should harmonize its regulations with the Federal Trade Commission and "should not expand the definition of sensitive information to include such a broad area as all web-browsing history," according to an ex parte filing with the commission. "Any other approach contradicts the more flexible regime applicable to the rest of the digital advertising ecosystem and has not had thorough enough examination as to its broader economic impact to be mandated by rule at this time," they said.

Sen Ed Markey (D-MA) put in a last-minute push for the Federal Communications Commission's broadband privacy proposal, which is on the agenda for an Oct. 27 vote. Sen Markey joined various groups also pushing for the new regulations—Public Knowledge, Center for Digital Democracy, Color of Change, Consumer Federation of America—on a conference call with reporters to urge the FCC to proceed with that vote.

Sen Markey is also a big backer of set-top reforms that the FCC was also scheduled to vote on before the chairman pulled the item from Sept's meeting. Sen Markey several times said the FCC needs to stay on course for the Oct 27 vote, calling it a "critical moment" for privacy. The senator said that just as the country has to make sure Russia doesn't compromise our privacy, no one else should.

According to the Federal Communications Commission, the second stage of the forward portion of the FCC’s broadcast incentive auction went only one two-hour round, is now closed and the FCC will have to move to yet another round of reverse auction broadcasters bidding at a lower clearing target.

There was no one immediately available for comment, but the FCC's website said that "Bidding in the forward auction has concluded for Stage 2 without meeting the final stage rule and without meeting the conditions to trigger an extended round." That one round of the forward auction ended with only $21,519,907,210 bid. That is below the closing bid total for round one of the forward, not surprising given that there was less spectrum up for bid, though that could also have boosted the price if demand stayed the same given the reduction in supply. Clearly the $56.5 billion broadcasters were asking—this time 114 MHz (90 MHz minus the guard bands) down from 126 MHz (100 MHz minus guard bands)—was still too rich. Forward auction bidders weren't ready to up their bids from last time, and they took no time in making that clear.

House Commerce Committee Chairman Fred Upton (R-MI) and Communications Subcommittee Chairman Greg Walden (R-OR) are challenging the independence of the Federal Communications Commission Inspector General's (IG) office following its finding that FCC Chairman Tom Wheeler did not leak information about the existence of a compromise on Lifeline subsidy reforms in order to blow up the deal. Chairman Upton and Chairman Walden want the FCC to supply some specific information about the "interdependence" of the FCC and IG.

“In order to address our committee’s concerns regarding the independence of the FCC’s Office of Inspector General and the impact on accountability in the FCC’s decision-making and management, we request… information necessary to understand the practical and working relationship between the Office of the Chairman and the Inspector General.” The IG report found that Chairman Wheeler did leak the information, but that he had the authority to make nonpublic information public, and that there was no evidence of a motive beyond what FCC spokesperson Shannon Gilson, who said she had recommended the chairman release the info, said was "providing the press with information about the compromise Lifeline proposal to address the confusion that was already surrounding the item in the media."

Looking to light a fire under the Federal Communications Commission, a group of 76 organizations have written FCC Chairman Tom Wheeler and the other commissioners to urge them to take action on three items and issues currently before the commission. Those are the set-top box proposal, broadband privacy and the zero-rating plan investigation. The groups asked the commission to "liberate" consumers from the set-top "monopoly", "promulgate rules that foster trust in the integrity of broadband privacy", and "prohibit abusive data caps and zero rating plans that violate net neutrality." The letter reads, "Each of these issues has been discussed by policymakers fo ryears, if not decades. Further delay would put internet users' privacy in jeopardy and undermine longstanding efforts." Among the many signatories to the letter, which was dated Oct 17, are Public Knowledge, Free Press, Demand Progress, the Center for Digital Democracy, and the Benton Foundation.

The second stage of the Federal Communications Commission's reverse portion of the spectrum incentive auction closed after 53 rounds, and wireless operators will now have to pay broadcasters at least $54,586,032,836 to get access to the 114 MHz of spectrum that will be on the block in the forward auction.

In the reverse auction, broadcasters are competing to give up spectrum or move to new channels in exchange for a government payment — low bidder wins. The $54.6 billion total is a sizeable drop in price from stage one, substantially closing the gap between broadcasters' asks and wireless companies' offers, who will get to start bidding on the 114 MHz of spectrum (actually less since some of that is guard band -- buffer spectrum -- in their own stage two forward auction starting next week.

The Obama Administration is getting plenty of input on what information it should be collecting to help guide its mission of promoting universal broadband deployment, adoption and competition. Comments were due Oct 11 on the National Telecommunications & Information Administration and National Science Foundation joint National Broadband Research Agenda, one of the September 2015 recommendations of the Broadband Opportunity Council (BOC), which was created in March 2015 by President Obama and co-chaired by the Commerce Department (NTIA is an arm of Commerce) and the Department of Agriculture, both of which oversaw billions in stimulus funds for broadband buildouts.

The Benton Foundation, American Library Association, Media Mobilizing Project, New America’s Open Technology Institute, and Public Knowledge, said that the research must take into account the specific needs of seniors, low-income families, persons with disabilities, people living in rural areas, all population groups they argue are usually ignored when developing new broadband policies. They also want the research to look at how to reach vulnerable communities during the IP transition, when some may be "left without robust access." Mobile Future, representing wireless broadband providers, wants the research to focus on "existing regulatory and financial barriers to infrastructure deployment" as part of an effort to eliminate them. Their goal is reasonable costs and processes for rolling out 5G networks, so they want the government to study the impact of fees for rights of way, for example, or delays in processing applications, connecting to polls or accessing municipal infrastructure.