Supreme Court Justice Clarence Thomas wants a do-over on his 2005 decision in a case that had a major impact on the power of federal agencies and regulation of the broadband industry. In National Cable & Telecommunications Association v. Brand X Internet Services, better known as Brand X, Justice Thomas wrote the 6-3 majority opinion that upheld a Federal Communications Commission decision to classify cable broadband as an information service. But in a dissent on a new case released Feb 24, Justice Thomas wrote that he got Brand X wrong. He regrets that Brand X gave federal agencies extensive power to interpret US law, a power generally reserved for judges. "Regrettably, Brand X has taken this Court to the precipice of administrative absolutism," Thomas wrote. "Under its rule of deference, agencies are free to invent new (purported) interpretations of statutes and then require courts to reject their own prior interpretations."

In Brand X, the Supreme Court upheld a Bush-era FCC decision that classified cable broadband as an information service instead of a telecommunications service, which meant that cable Internet providers would not be regulated as common carriers under Title II of the Communications Act. But the Supreme Court ruling in Brand X didn't lock the FCC into classifying cable as an information service forever. Instead, Brand X allowed the FCC to classify Internet service as either an information service or telecommunications as long as it provided a reasonable justification. This allowed the FCC to subsequently change its classification decision multiple times. The Obama-era FCC in Feb 2015 decided that both home and mobile broadband services were telecommunications, and it regulated the industries under Title II in order to impose net neutrality rules. The Trump-era FCC reversed that decision in Dec 2017, deciding that broadband isn't telecommunications, and thus deregulated the industry.

Chairman Davis, Vice Chair Dumais, members of the Committee, my name is Gigi Sohn and I am a Distinguished Fellow at the Georgetown Law Institute for Technology Law and Policy and a Senior Fellow with the Benton Institute for Broadband and Society. I have been a public interest advocate for open, affordable and accessible communications networks for over 30 years. I was Counselor to FCC Chairman Tom Wheeler from 2013-2016, and during that time, I helped the FCC adopt the 2015 Open Internet Order, which included the strongest ever network neutrality rules. The FCC voted to adopt the Order 5 years ago today. It was unquestionably the proudest moment of my career. Unfortunately, less than three years later, the Trump FCC repealed the 2015 Open Internet Order, leaving all Americans unprotected from anti-consumer and anticompetitive practices of broadband Internet access service (BIAS) providers. And that is why we are here today. House Bill 957 would reinstate the 2015 Open Internet Order and provide net neutrality protections to anyone who uses the Internet in Maryland. I support the bill and urge this Committee and the House of Delegates to do pass it without delay.

The Senate Judiciary Committee’s tech task force is gearing up to take on 5G wireless, said Sen. Marsha Blackburn (R-TN). The bipartisan mix of lawmakers will be “looking at some of these intricacies that affect spectrum and 5G deployment, security of the network and applications that are available to make life more convenient and accessible for consumers,” she said. Sen Blackburn also nudged Federal Communications Commission Chairman Ajit Pai to make a call about whether to allow satellite firm Ligado Networks to light up wireless service. “I echo Attorney General [William] Barr’s concerns that while there may be some remaining technical issues, it’s time for the FCC to resolve those concerns and to make a decision one way or another,” she said. Chairman Pai told Sen Blackburn nearly two months ago that staff were trying to settle Ligado’s application after some administration officials warned that the company’s plans would disrupt GPS signals in adjacent parts of the airwaves.

The Federal Communications Commission began collecting information from telecommunications carriers on the use of Huawei and ZTE equipment and services in their networks. This follows the FCC’s adoption of a rule barring the use of Universal Service funds to purchase equipment and services from companies posing a national security threat. The FCC has proposed requiring carriers receiving Universal Service funds to remove and replace existing equipment and services from such companies. To mitigate the impact of this proposal on affected entities, and in particular small, rural carriers, the FCC has also proposed a reimbursement program to offset the transition costs. Today’s action initiates the process to collect information to aid in the design of a reimbursement program and inform any other potential FCC actions to protect the communications supply chain. Specifically, the FCC is collecting information from US telecommunications carriers receiving Universal Service funds, known as eligible telecommunications carriers, and their affiliates and subsidiaries. This information includes whether carriers own or are using equipment or services from Huawei or ZTE; the type of such equipment or services; the costs associated with purchasing and/or installing such equipment and services; and the costs associated with removing and replacing such equipment and services.

The information collection is mandatory for eligible telecommunications carriers and their subsidiaries and affiliates and data must be submitted on or before April 22, 2020.

The information collection is voluntary for carriers that are not eligible telecommunications carriers. The Commission launched a portal through which this information will be submitted at: www.fcc.gov/supplychain.

The weekend of Feb 21, Federal Communications Commissioner Geoffrey Starks visited Puerto Rico, where he convened a field hearing on communications resiliency and visited mountain areas to learn about the challenges of deploying resilient infrastructure in Puerto Rico’s rural areas.  

“There are four key lessons I took from this trip,” Commissioner Starks said. “First, access to power will always be a central issue. During the recent earthquakes, the overwhelming majority of cell-site outages resulted from power loss, not damage to facilities...Second, there was a pronounced digital divide in Puerto Rico long before Hurricane Maria and the recent earthquakes. As I saw up close, bringing reliable, resilient broadband to rural communities in Puerto Rico often means adapting to challenging terrain. Ending internet inequality in Puerto Rico will take sustained commitment and significant resources. The FCC needs to provide both. Third, communications failures exacerbated the mental health challenges that many Puerto Ricans, including first responders and 911 workers, faced in the wake of Hurricane Maria and the recent earthquakes...Telehealth could help all Puerto Ricans access the care and support they need, but only if we close the digital divide. Finally, Puerto Ricans stand ready to meet these challenges...The FCC must be a good partner to the many Puerto Ricans working hard to improve their communities. I look forward to collaborating with them and learning from them.”