May 2015

FCC Enforcement Bureau Guidance: Broadband Providers Should Take Reasonable, Good Faith Steps To Protect Consumer Privacy

The Federal Communications Commission’s Open Internet Order applies the core customer privacy protections of Section 222 of the Communications Act to providers of broadband Internet access service (“BIAS”). The FCC has found that absent privacy protections, a broadband provider’s use of personal and proprietary information could be at odds with its customers’ interests and that if consumers have concerns about the protection of their privacy, their demand for broadband may decrease. At the same time, the FCC declined to apply its existing telephone-centric rules implementing Section 222 and indicated that in the future it may adopt implementing rules that are tailored to broadband providers. As a result, the statutory provisions of Section 222 themselves will apply to broadband providers when the Open Internet Order goes into effect. This Advisory provides guidance to broadband providers about how the Enforcement Bureau intends to enforce Section 222 in connection with BIAS during the time between the effective date of the Open Internet Order and any subsequent FCC action providing further guidance and/or adoption of regulations applying Section 222 more specifically to BIAS.

Will Wireless Carriers Really Kill Mobile Advertising, or Is It Just a Bluff?

Roi Carthy is ready to flip the switch that blows up mobile advertising. His company is threatening to hand a nuclear option to wireless carriers that would eliminate most mobile ads that make money for big tech companies, especially Google. This is a huge deal with significant money at stake, but is it a bluff? Carthy's company, Israel-based Shine Technologies, claims to have the ability to turn off ads by working with wireless carriers. It also claims to have the support of a few overseas telecommunication companies, which would love to stick it to Google.

The mobile "bomb" threat revealed unnamed European carriers were ready to work with Shine. However, none have come forward publicly yet to admit they would strangle the livelihood of so many Internet companies -- not just Google, but AOL, Yahoo and others that depend on delivering ads to smartphones. For his part, Carthy said he's deadly serious, and that the technology works, blocking video, display and banner ads from crossing telecommunication pipes. "It is a high-stakes game, but when you boil it down, from the perspective of Shine, it's quite simple: Consumers deserve to choose if they want ad blocking or not," Carthy said "We believe that is a right."

Facebook and the Illusion of Safety

[Commentary] I sat on the tiny swell of a hill behind my hotel, waiting for the four-story building to crumble into dust and take me with it. And then I would be gone -- one moment here, the next moment not. This was not how I’d imagined the trip to Nepal would go. I was there to report on health and development -- under-covered issues in Nepal, international coverage of which tends to focus on Everest and natural disasters. I was too numb to acknowledge the irony. It was the middle of the day in Kathmandu when the quake struck, the middle of the night back home. I knew I only had a few hours before my husband woke up and saw the news. And so, a few hours later, I darted up four flights of stairs, tensed the entire time for more aftershocks. I threw a change of clothes, my passport and cash, my laptop, and my phone into a bag and ran back outside.

The first thing I did was log into Facebook. At the top of the app, it said, “Nepal Earthquake: Are you in the affected area?” I tapped yes. “Mark yourself as safe,” it said, and I hesitated before I hit yes again. After all, how safe was I? Yes, I’d survived the quake. But the aftershocks continued, dozens of small and large rumblings that sent me running for open ground each time. I was alive, yes. But I was by no means safe. Yet if I didn’t check in, what would my loved ones think? My friends would be greeted with a notification saying I hadn’t marked myself as safe -- which would only make them more worried.

[Melody Schreiber is a program manager at the International Reporting Project]

Obama Admin: NSA Spying Will Begin Shutting Down This Week

The Patriot Act provisions that have allowed the National Security Agency to vacuum up Americans' phone records officially expire on June 1. But the Obama Administration says the NSA must begin preparing to end its bulk-telephone-spying program as soon as May 22. A Justice Department memo circulated among congressional offices said Congress needs to fully settle its differences over the expiring spy provisions during the week of May 18th in order to avoid an operational interruption to the NSA's mass-surveillance program, which was exposed by former intelligence contractor Edward Snowden in 2013. "After May 22, 2015, the National Security Agency will need to begin taking steps to wind down the bulk-telephone-metadata program in anticipation of a possible sunset in order to ensure that it does not engage in any unauthorized collection or use of the metadata," the memo states.

The memo continues: "NSA will attempt to ensure that any shutdown of the program occurs as close in time as possible to the expiration of the authority, assuming the program has not been reauthorized in some form prior to the scheduled sunset of Section 215. In the event of a lapse in authority and subsequent reauthorization, there will necessarily be some time needed to restart the program. … For these reasons, after May 22, 2015, it will become increasingly difficult for the government to avoid a lapse in the current NSA program of at least some duration."

Sen Rand Paul to slam surveillance ‘until he can no longer speak’

Sen Rand Paul (R-KY) took to the Senate floor to launch a “filibuster” of a bill to reauthorize a major government surveillance program. One problem: It’s not yet a filibuster. With key parts of the PATRIOT Act set to expire at the end of May -- and the Senate set to skip town at the end of the week -- Sen Paul started speaking at about 1:15 pm. The 2016 Republican candidate has made his opposition to government surveillance a key tenet of his quest for the White House and threatened previously to filibuster any effort from Senate Majority Leader Mitch McConnell’s (R-KY) bill to extend parts of the PATRIOT Act.

A spokeswoman for Sen Paul said he would talk “until he can no longer speak,” but Sen Paul’s ongoing diatribe isn’t a true filibuster like the one he famously mounted over drone policy in 2013. The Senate is currently working through the 30 hours of debate on a trade bill and is scheduled to vote one hour after the chamber officially convenes on May 21st. If Sen Paul were to talk through the night, Senate procedure would cut him off at about 1 pm tomorrow. That gives Sen Paul, who was joined by Sen Ron Wyden (D-OR) for a colloquy at around 3:30 pm, hours to lash out against the National Security Agency, without actually gumming up the legislative works.

House conservatives: Sen McConnell push for clean Patriot Act a 'waste of time'

House GOP lawmakers derided Senate Majority Leader Mitch McConnell's (R-KY) push to renew expiring provisions of the Patriot Act without any changes. The USA Freedom Act, passed by the House last week by a resounding vote of 338-88, would prevent the National Security Agency from collecting bulk metadata about Americans' phone calls. But Majority Leader McConnell has urged Congress to instead pass a "clean" extension before provisions of the law expire at the end of May. Rep Justin Amash (R-MI), one of the most vocal proponents of ending the NSA's data collection of Americans' phone records, said Majority Leader McConnell's crusade is futile.

"I think it's a waste of time for [Sen] Mitch McConnell to really even talk about it, because it has no chance here in the House and I believe it has no chance in the Senate," Rep Amash said. Rep Amash warned that weakening reforms in the House-passed legislation would be untenable. "I think if they water it down any more, it'll be in real trouble." Congress has limited time, especially since lawmakers will be absent from Capitol Hill during the week of May 25 for the Memorial Day recess. The House, for its part, plans to adjourn for the week by noon on May 21st. Majority Leader McConnell said that he would allow a vote on the House-passed measure. It is unclear, however, if the bill can clear the Senate.

FBI chief: Letting Patriot Act expire would be a 'big problem'

Letting key portions of the Patriot Act expire at the end of the month would make it harder for the FBI to do its job, bureau Director James Comey warned. Most of the debate about the three expiring provisions has focused on the National Security Agency’s controversial and warrantless collection of millions of Americans’ phone “metadata,” but the FBI says it's also important to talk about the security aspect. “These three are going to go away June 1 and I don’t want them to get lost in the conversation about metadata,” Director Comey said at a Georgetown University conference on cybersecurity. For instance, Section 215 of the Patriot Act -- which the NSA has relied on to operate its bulk phone records collection program -- also allows the FBI to collect a variety of records from hotels, rental car companies and libraries during the course of an investigation. “If we lose that authority -- which I don’t think is controversial with folks -- that is a big problem,” Director Comey said. “Because we will find ourselves in circumstances where we can’t use a grand jury subpoena and we can't use a national security letter,” he added, referring to two other means of collecting information.

EOBC Battles 'Devaluing' Broadcast Auction Spectrum

The Expanding Opportunities for Broadcasters Coalition is pushing back on efforts by Sprint to ensure the Federal Communications Commission reserves reclaimed broadcast 600-Megahertz low-band spectrum for nondominant carriers -- like the wireless provider. The Federal Communications Commission is already planning to set aside at least 30 MHz of that spectrum for competitive carriers; Verizon Communications and AT&T have the majority of it already. Sprint said it supports requests by other parties to increase the reserve of to 40 MHz (which would allow for two new, competitive 20-MHz national wireless offerings). But it said the FCC’s proposal to delay the reserve block until later in the auction -- and after certain financial targets are met -- is particularly problematic. The move could mean the FCC will have to pay broadcasters more in the reverse auction, Sprint said.

Sprint suggested setting the reserve at the beginning of the auction. Doing that, as well as reducing the allotment of spectrum that the two largest carriers can bid on, will devalue the broadcast spectrum -- something the EOBC does not want to see happen. "It is beyond ridiculous for Sprint to file today an ex parte claiming the critical importance of 600-MHz spectrum a day after its CFO, Joe Euteneuer, claimed that Sprint doesn’t really need it saying, 'The 600 MHz auction is something we're looking at but not necessarily something we need to do,' " EOBC executive director Preston Padden said. "A classic case of Wall Street candor contradicting lobbying hyperbole."

TIA's Belcher: The current Internet regulatory system isn't broken

A top executive from the Telecom Industry Association (TIA) says that the regulatory system that governs the Internet does not need to be fixed and the Federal Communications Commission's network neutrality rules will put a damper on new investments. Scott Belcher, CEO of the TIA, said that after the FCC's previous attempt to regulate the Internet failed in 2010, service providers have made investments to improve speeds and the user experience. "The current system isn't broken -- it's working," Belcher said. "If you look at what's happened since 2010, which was the last time the FCC tried to regulate, the speeds have increased by 250 percent and that does not sound like a broken system to me." Belcher cited how Verizon spent $24 billion to build out its FiOS fiber-to-the-home (FTTH), a move it could not have made in an uncertain regulatory environment. "Verizon could not have done that if they were worried about the system and how they would be regulated," Belcher said, adding that "the FCC's order will result in a decrease in investment."

Comcast Seen Winning Freedom to Raise Rates in Proposal at FCC

Apparently, cable companies such as Comcast would be free to raise customer rates without local government approval under a US regulator’s proposal. Cities, states and other localities would lose regulatory authority over basic programming packages under the plan from Federal Communications Commission Chairman Tom Wheeler, said two agency officials who requested anonymity because the proposal hasn’t been made public. Broadcasters say the change may leave cable providers free to exile TV stations from the basic cable package. The FCC said it wanted to ease a restriction adopted in 1993, before satellite broadcasters competed with cable and when many communities were served by only one pay-TV provider. Cable companies say the change eliminates needless red tape. Critics say protection is still needed.

The proposal is “contrary to the public interest,” the FCC’s Intergovernmental Advisory Committee said in a March 16 statement. “It’s just going to make things worse for consumers, not better,” said Gary Resnick, chairman of the advisory panel appointed by the agency chairman and made up of local, state and tribal officials. The proposal would remove protections including those that cap the price of a basic channel tier and equipment, require uniform rates across a locality, and make pay-TV and premium offerings more widely available, Resnick’s panel told the FCC. Broadcasters fear the change will let cable companies assign TV-station signals to pricier tiers, cutting the audience for local programming, said Dennis Wharton, spokesman for the National Association of Broadcasters trade group.

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