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May 2016

Update: Effective Dates, Reconsideration/Appeal Deadlines Set in Lifeline Overhaul

[Commentary] Recently we reported on the Federal Communications Commission’s overhaul of the Lifeline program. The Commission’s sweeping decision has now been published in the Federal Register. As frequent visitors here know, that publication does a couple of things.

First, it sets the effective date for some, but by no means all, of the new rules. That date is June 23, 2016. But heads up. The following new or revised rules will not take effect that day: §§54.101, 54.202(a)(6), (d), and (e), 54.205(c), 54.401(a)(2), (b), (c), and (f), 54.403(a), 54.405(e)(1) and (e)(3) through (5), 54.407(a), (c)(2), and (d), 54.408, 54.409(a)(2), 54.410(b) through (h), 54.411, 54.416(a)(3), 54.420(b), and 54.422(b)(3). That, of course, is thanks to our old friend, the hilariously-named Paperwork Reduction Act. Since the listed sections all involve new or revised “information collections”, they have to be run past the Office of Management and Budget for its review before the FCC can start to use them.

Second, Federal Register publication establishes the dates for seeking reconsideration (by the FCC) or judicial review (by a federal appeals court) of the Commission’s decision. Petitions for reconsideration may be filed with the FCC by June 23, 2016, and petitions for review may be filed with your favorite federal court of appeals by July 25. (As always, would-be appellants with their hearts set on a particular circuit should jump through the proper hoops, as described in this notice from the General Counsel’s office. Spoiler alert: Those hoops require filing the petition for review way earlier than the outside July 25.

Major Changes in the Works on the Business Data Services (a/k/a Special Access Services) Front

[Commentary] The market for special access service – also known by some (including the Federal Communications Commission) as “business data services” or “BDS” – is under the Commission’s regulatory microscope. In a sprawling, two-pronged decision, the FCC has (a) ordered the four largest BDS providers (among incumbent local exchange carriers, a/k/a ILECs) to revise their tariffs in significant respects and (b) proposed a new regulatory regime for BDS. The massive 288-page “Tariff Investigation Order and Further Notice of Proposed Rulemaking” arises from complaints raised by competitive local exchange carriers (CLECs) and other customers of special access service.

The FCC also requests comment on the appropriate treatment under the new framework of the three types of contractual terms identified in the Tariff Investigation Order, as well as other contractual terms and conditions.

Tom Wheeler, independent agency

[Commentary] Federal Communications Commission Chairman Tom Wheeler’s time as chairman has been marked by concerns of overt partisanship. These concerns stem from the fact that the FCC has seemingly been more partisan under Chairman Wheeler than under the leadership of any other chairman in recent history. And it is fair to say that this commission is more polarized than any other FCC in recent history — and also more polarized than most other federal agencies today.

But this polarization may not have political origins; it may not be about Democrats versus Republicans. Rather, it seems that the chairmanship is one of Chairman Wheeler against the world — that Chairman Wheeler, in his own words, “[is] an independent agency” unto himself. The long-term effects of this leadership style are going to significantly damage the FCC.

[Gus Hurwitz an assistant professor at the University of Nebraska College of Law]

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