Lauren Frayer

The week of May 1 marks FirstNet’s first month in a public-private partnership with AT&T, working with its team of Motorola Solutions, General Dynamics, Sapient Consulting and Inmarsat Government on the successful deployment of the Network. Together, we've had an extremely productive month collaborating on a number of priorities, such as State Plans and the development of an online portal that will be used to deliver the plans to the states and territories. We have also had initial discussions regarding the FirstNet core network architecture.

[Commentary] Communications attorney Jack Goodman says now that the Federal Communications Commission is focused on deregulation, his wish list includes changes to ownership reports, must carry/retransmission consent elections, children’s programming reports, ancillary services reports and the local public notice rule.

[Jack Goodman practices communications law in Washington]

Under the new Trump Administration, the Federal Communications Commission (FCC) moved quickly to take concrete steps to advance parts of Chairman Pai’s digital empowerment agenda to advance broadband across America. In February, the FCC voted to adopt rules for the upcoming Mobility Fund Phase II auction and the Connect America Fund Phase II auction. More recently, the Chairman established a Task Force to oversee the two auctions, signaling that these auctions are a priority for the agency. That’s progress – but the real question is – what needs to happen next to have successful auctions for these universal service subsidies? The Connect America Phase II auction will focus on two discrete areas of the country – 1) areas where the incumbent telephone company declined an earlier offer of universal service subsidies, and 2) areas that are deemed extremely costly to serve, based on a FCC-developed cost model. The nearly $200 million in annual funding over a ten-year term – almost $2 billion overall – is far below the amount calculated by the model to serve these areas using fiber technology, but support levels could be significantly lower to the extent winning bidders can leverage existing assets or deploy alternative technologies.

[Commentary] If the Federal Communications Commission, which has a 2-to-1 Republican majority, approves Chairman Ajit Pai’s proposal, there will be little stopping the broadband industry from squelching competition, limiting consumer choice and raising prices. The previous FCC chairman, Tom Wheeler, helped put the rules current Chairman Pai is attacking in place in 2015, and the United States Court of Appeals for the District of Columbia Circuit upheld them.

Large telecommunications companies have been raking in profits in recent years. And they have been making multibillion-dollar acquisitions — not something you see from an industry that is withering from senseless regulations. Charter spent more than $65 billion last year to buy Time Warner Cable and Bright House Networks. AT&T bought DirecTV for $48.5 billion in 2015 and is trying to buy Time Warner, the media company, for $85 billion. Not only is Pai’s lament for the broadband industry based on alternative facts, it misses the bigger point. Net neutrality is meant to benefit the internet and the economy broadly, not just the broadband industry. That means the commission ought to consider the impact the regulations have on consumers and businesses. In particular, the commission has a responsibility to protect people with few or no choices; most Americans have access to just one or two companies for residential service and just four big operators for wireless.

“Fit and proper” is that so-perfectly British standard by which regulators decide whether a company should be allowed to gain and retain broadcast licenses. It’s based on the premise that those who control news, information and entertainment options on television and radio should be held to high ethical standards, and that doing so determines “the kind of country we are,” as Jane Bonham-Carter, a member of Parliament, recently put it. Understanding just how important the Sky deal (complete ownership of the popular and highly profitable Sky satellite and cable network) would be for the Murdochs’ personal and global ambitions, and the complications that “fit and proper” could present to them, is vital to understanding the head-spinning developments at Fox News these past few months.

Once Federal Communications Commission Chairman Ajit Pai’s notice of proposed rulemaking is approved, which is likely to happen at the FCC’s open meeting May 18, the public will have 60 days to file comments. Then people will have another 30 days to respond to the comments. The FCC’s staff will then have to turn all that feedback into a final order that commissioners will vote on. That process could take months, but based on Pai’s eagerness to re-reclassify broadband providers, you can expect action on that sooner than later.

Senior FCC officials told reporters during a press call that they won’t necessarily be swayed by public opinion. The call for comments is not, they said, a public opinion poll. Fair enough: Sometimes federal agencies have to make unpopular decisions. And if the FCC does vote to scrap net neutrality, it could be a very unpopular decision indeed. Despite growing polarization, a poll conducted by the University of Delaware found that the majority of both Democratic and Republican voters support some form of net neutrality protections.

Net neutrality advocates may have better luck in court than the FCC. Federal agencies must explain sudden policy reversals. If the courts decide that the FCC has acted in an arbitrary or capricious manner, the Title II reversal could be struck down. FCC staff, however, say they are confident that won’t happen. Pai has offered up data suggesting that companies are spending less money building and maintaining their broadband networks as a result of the Title II reclassification, which they believe should be enough to satisfy any legal challenge. Whether those controversial investment stats will be enough to sway the courts remains to be seen.

The National Security Agency has halted one of the most disputed practices of its warrantless wiretapping program: collecting Americans’ emails and texts to and from people overseas that mention foreigners targeted for surveillance, according to officials familiar with the matter.

National security officials have argued that such surveillance is lawful and helpful in identifying people who might have links to terrorism, espionage or otherwise are targeted for intelligence-gathering. The fact that the sender of such a message would know an email address or phone number associated with a surveillance target is grounds for suspicion, these officials argued. The decision is a major development in American surveillance policy. It brings to an end a once-secret form of wiretapping that privacy advocates have argued overstepped the Fourth Amendment’s ban on unreasonable searches — even though the Foreign Intelligence Surveillance Court upheld it as lawful — because the government was intercepting communications based on what they say, rather than who sent or received them.

In an interview with Breitbart, Federal Communications Commission Chairman Ajit Pai was asked about fellow Republican FCC Commissioner Michael O'Rielly's argument that Congress needs to "enshrine free Internet principles in law" to resolve the ongoing "political uncertainty." Chairman Pai agreed:

“I think the best solution would be for Congress to tell us what they want the rules of the road to be for the FCC and the country when it comes to the digital world," he said. "Part of the problem is that we are consistently looking at 1934 laws and 1996 laws then we try to shoehorn our modern marketplace to some of those paradigms that frankly we didn’t anticipate a marketplace as dynamic as the internet. I really think that Congress, ideally looking at all the opinions, and all the constituencies they can come to a consensus. Because again as Commissioner O’Rielly pointed out we don’t want the regulatory winds to keep shifting every four or eight years we want to provide some level of consistency to the marketplace so that consumers and companies alike can enjoy the digital revolution.”

The near-instantaneous response by supporters and opponents of Federal Communications Commission Chairman Pai’s proposal to roll back the Open Internet Order highlights two points. First, despite the hyperventilating and hand-wringing, this proposal surprised nobody. Everybody who follows the issue knew the moment Donald Trump won the presidential election that this day would come. Second, the arguments on both sides have all been made. Many times.

The FCC as an agency has a commitment problem. The fault does not rest with Chairman Pai, past-Chairman Wheeler, or any other commissioner. The difficulty of making credible long-term regulatory commitments exists across agencies and around the globe, has been studied extensively, and has no easy solution. New administrations will always have different sets of beliefs and agendas. One mechanism intended to help overcome the commitment problem is the presence of independent, expert agencies. In principle, an agency’s independence from short-term political pressures allows it to make decisions in a more technocratic nature. The more controversial the issue, however, the more difficult it will be for the agency to maintain its independence. Net neutrality seems to have become so controversial and so politicized that it is practically impossible for any Commission to credibly claim that its approach will survive beyond its own tenure.

The net neutrality issue has been with us for over a century in different guises and is unlikely to be resolved fully, possibly ever. But consumers and industry need the FCC to be able to commit to at least a general approach for regulating the Internet. The way to do it is by creating more analytical hurdles for the FCC to overcome in order to make changes and for Congress to set some principles for the FCC to follow.

The Schools, Health, and Libraries Broadband Coalition filed a letter on April 27, 2017 to express concern with the recent set of inquiries sent by Universal Service Administrative Company (USAC) to over 100 E-rate applicants seeking support for special construction costs for fiber installation. SHLB said the questions ask for information irrelevant to determining whether an application meets E-rate requirements and suggests new limitations on funding that were not contained in the 2014 E-rate Modernization Orders, the Federal Communications Commission’s rules or USAC’s training materials. SHLB encouraged the FCC and USAC to maintain the existing policies adopted in 2014 that promote competition and cost-effective fiber options for schools and libraries.