April 2016

The Senate Homeland Security & Governmental Affairs Committee took aim April 20 at the Federal Communications Commission's network neutrality Open Internet order and ex parte contacts in a hearing on "The Administrative State: An Examination of Federal Rulemaking." Chairman Ron Johnson (R-WI) called it an incredibly important hearing and said that while some regulation was needed, there was a point of "overregulation." The hearing dealt with the broader issue of regulating through administrative action—which is the charge Republicans have leveled at the Obama Administration for pushing Title II reclassification of Internet service providers and more recently calling for new set-top box rules. But it used the FCC as an example of the federal regulatory overreach the committee's Republican leadership asserts.

Four of the five witnesses were of like mind that there was currently federal regulatory overreach, with the scope of agency regulations far broader than Congress had intended. Witness Jonathan Turley, a professor at George Washington University, said he did not want to weigh in on merits of net neutrality, but what he saw as an opaque process. He said that he agreed with many things President Obama was trying to do but not the way he was doing it. Randolph May, president of the Free State Foundation and former associate general counsel at the FCC, said the rulemaking process is faulty and has given rise to the administrative state. He focused on the FCC's net neutrality rulemaking as a solution in search of a problem.

Americans’ rapid move toward mobile Internet service appears to be coming at the expense of home broadband connections, according to the latest computer and Internet use data released by the National Telecommunications & Information Administration. At the same time, many Americans are using a wider range of computing devices in their daily lives. Both of these findings suggest that technological changes are driving a profound shift in how Americans use the Internet, which may be opening a new digital divide based on the use of particular types of devices and Internet services.

These results come from the US Census Bureau’s Computer and Internet Use Supplement to the Current Population Survey (CPS), which includes data collected for NTIA in July 2015 from nearly 53,000 households. Mobile Internet service appears to be competing more directly with wired Internet connections. According to the data, three-quarters of American households using the Internet at home in 2015 still used wired technologies for high-speed Internet service, including cable, DSL, and fiber-optic connections. However, this represents a sizable drop in wired home broadband use, from 82 percent of online households in July 2013 to 75 percent two years later. Over this same period, the data also shows that the proportion of online households that relied exclusively on mobile service at home doubled between 2013 and 2015, from 10 percent to 20 percent.

Senators in both parties are hoping a high-profile nomination to lead the Library of Congress does not get bogged down in the broader confirmation fight ahead of the 2016 elections. The Senate Rules Committee on April 20 held a largely laudatory nomination hearing for Dr. Carla Hayden, who could become the first female or African-American Librarian of Congress. She is also the first new nominee in decades.

"I think this nomination is on a separate track," Committee Chairman Roy Blunt (R-MO) said when asked whether her confirmation could suffer from the broader confirmation fight in the Senate. Republican Sens have declined to hold confirmation hearings for President Barack Obama's Supreme Court nominee Merrick Garland and have ruled out bringing up a vote ahead of the election. But Chairman Blunt brushed off any comparison between a 10-year appointment to the Library of Congress and a lifetime appointment to the Supreme Court. "Surely no one asks seriously how this is different than the lifetime appointment to the Supreme Court," he said. Ranking Member Charles Schumer (D-NY) similarly said he hoped Dr Hayden could be "swiftly confirmed." Dr Hayden is a veteran of the American Library Association and the current chief executive of the Enoch Pratt Free Library in Baltimore (MD). If confirmed, she would be the first new librarian in 28 years.

The Center for Digital Democracy says it is all for the Federal Communications Commission unlocking the set-top box to promote competition, but wants to make sure it protects children and their personal information on whichever box is offered, by multichannel video programming distributors or the third parties that would get access to set-top data.

In comments on the FCC set-top proposal, CDD said that navigation devices "regardless of whether they are provided by incumbents or third parties, require robust, new consumer safeguards." For example, said the group, a leading voice for government protection of children's online data and protection from online marketing, "children require specific safeguards to ensure they do not become victims of unfair and deceptive practices, including from the delivery of data-driven advertising via navigational equipment." CDD also said the FCC should protect the privacy of navigational information in its separate broadband CPNI rulemaking. The FCC is proposing requiring broadband subs to have to opt in to use of their information for third-party targeted marketing.