Daily Digest 4/18/2018 (Barbara Bush)

I congratulate Commissioner Clyburn on her distinguished tenure at the FCC. She has been a tremendous leader and a committed public servant throughout her time here. As the first woman to head the agency, she led skillfully through a transition and put her stamp on the Commission, including through her steadfast leadership in telehealth, media diversity, and digital inclusion. I have enjoyed working with her and, even when we have not seen eye-toeye on policy, I have always held her candor and thoughtfulness in the highest regard. She’s been a wonderful colleague and friend. I wish her nothing but the best and sincerely thank her for her service.

Commissioner Clyburn has been a strong and dynamic member of the Commission. I would like to thank Commissioner Clyburn for her many years of dedicated service to the FCC. In my time as a Commissioner, I have been consistently struck by her passion and commitment to the work of the FCC, her professionalism, and her willingness to reach across the aisle to get things done. It has been a privilege to serve with her, and I wish her all the best on her future endeavors.

The Federal Communications Commission is proposing to help protect the security of the nation’s communications networks through its stewardship of the over $8.5 billion a year Universal Service Fund (USF). The FCC is seeking comment on a proposal to prohibit use of USF funds on the purchase of equipment or services from any company that poses a national security threat to the integrity of US communications networks or the communications supply chain. The Notice of Proposed Rulemaking also seeks comment on a number of issues, including:

• How best to implement the proposed prohibition on the use of USF support going forward
• What types of equipment and services should be covered by the proposed rule
• How the FCC should identify, and how USF recipients can learn, which suppliers are covered by the proposed rule
• The costs and benefits of the proposed rule
• How best to enforce the proposed rule

The FCC’s proposal is intended to ensure that USF funds are not used in a way that undermines or poses a threat to our national security.

Today the Commission will consider a Notice of Proposed Rulemaking seeking comment on a rule to prohibit the future use of Universal Service Funds to purchase equipment or services from providers identified as posing a national security risk. Congress has repeatedly expressed concern about the potential for supply chain vulnerability to undermine national security, and I will vote to approve. But our communications networks face other security threats that we cannot continue to ignore. Earlier this month, it was reported that the Department of Homeland Security acknowledged in a letter to Senator Ron Wyden that cell site simulators are being used in the nation’s capital, potentially by foreign or criminal actors. These surveillance tools can transform cell phones into real-time tracking devices by mimicking legitimate cell towers and some may even have the technical capability to record the content of calls. If these reports are true, someone needs to explain how foreign actors are transmitting over our airwaves without approval from this agency. Someone also needs to explain whether the devices being used have been certified by the FCC. The security of our communications is at stake right here, right now in Washington and this agency owes the public more than silence.

The Federal Communications Commission adopted new measures to tackle the problem of failed or poor-quality long-distance calls to rural parts of the United States. The FCC adopted new measures and proposed others to better tackle the problem of call completion and ensure that calls are completed to all Americans. The FCC is employing a multi-faceted approach requiring diverse solutions and aggressive action by all participants in the call completion process. Calls originating from a long-distance provider may be handed off multiple times to different providers— called intermediate providers— before reaching their final destination. This process is a significant source of rural call completion problems, and the FCC’s actions today seek to promote better oversight when routing calls. Following implementation of these rules, the FCC will require providers initially selecting the long-distance route—known as the covered providers—to monitor the performance of intermediate providers, and to take steps to correct performance problems. Covered providers must take remedial action against intermediate providers, when necessary, and establish a point of contact to address rural call completion issues. However, covered providers will no long be required to fulfill detailed and burdensome data reporting requirements adopted in the FCC’s 2013 Rural Call Completion Order, which have not provided useful information to the Commission and have proven ineffective in deterring call completion failures. In addition, the FCC is seeking comment on rules to implement the Improving Call Quality and Reliability Act, or RCC Act, signed by the President in February, which gives the FCC new authority to regulate intermediate providers. The RCC Act requires that intermediate providers register with the FCC, and bars covered providers from using non-registered intermediate providers. It also requires the FCC to establish service quality standards for intermediate providers.

The Federal Communications Commission proposed modernizing rules governing business data services (BDS) for certain small rural carriers, known as Alternative Connect America Model, or A-CAM, carriers.  The FCC is seeking comment on allowing A-CAM carriers to voluntarily migrate their lower speed time division multiplexing (TDM) services from rate-of-return regulation to price-cap, or incentive, regulation, which would encourage more efficient operation and allow carriers to avoid expending resources on regulatory compliance. In this way these proposed rules would reduce regulatory burdens and reward productivity, which can lead to further innovation, entry, and competition in the market for BDS to the ultimate benefit of consumers. A-CAM carriers that migrate to incentive regulation for their lower speed TDM BDS would no longer need to conduct expensive and time-consuming cost studies. The Notice of Proposed Rulemaking also seeks comment on the elimination of ex ante pricing regulation for packetbased and higher speed TDM BDS. In addition, the Notice seeks comment on designing a competitive market test in A-CAM areas to determine where competition is available and whether there should be further relief from ex ante pricing rules for lower speed TDM BDS in areas deemed competitive. Finally, the Notice proposes allowing other rate-of-return carriers receiving fixed support to opt into this same regulatory paradigm. Under the proposal, BDS pricing would remain subject to statutory mandates requiring the FCC to ensure that rates, terms, and conditions of service are just, reasonable, and nondiscriminatory.

An effort to restore net neutrality protections in California moved forward despite loud opposition by internet service providers and others. SB 822, written by State Sen. Scott Wiener (D-San Francisco), is being touted as the most comprehensive state-level net neutrality bill in the nation as states scramble ahead of the repeal of federal rules taking effect soon. Wiener’s bill is backed by Tom Wheeler, the former Federal Communications Commission chairman who wrote the 2015 Open Internet Order; California State Attorney General Xavier Becerra; the mayors of California’s biggest cities; and dozens of public advocacy groups, including the ACLU and the Electronic Frontier Foundation. Among other things, SB 822 prohibits blocking or throttling internet traffic, and takes aim at “zero rating,” in which internet providers exempt certain content, sites and services from data caps. Not all votes are in, but there were enough votes, 6 to 3, for the bill to pass the state Senate Energy, Utilities and Communications Committee and head to the Judiciary Committee. One absent committee member, Sen. Nancy Skinner, is a co-sponsor of the measure.

The House Subcommittee on Communications and Technology held a hearing examining data prioritization and how it is critical to the internet’s function and growth. Members of the Subcommittee heard from a range of expert witnesses who testified on the how and why data is currently prioritized on the network, and potential needs for future prioritization. Paul Schroeder, Director, Public Policy and Strategic Alliances, Aira Tech Corporation, discussed why the incredible technology powering his Aira device needs the prioritization of data. Richard Bennett testified, "The traditional regulatory model that separated content from communications no longer fits; large content interests own worldwide networking facilities, only connecting to Internet Service Providers to perform the relatively simple task of delivering streams of Internet packets over the last mile.” Peter Rysavy, President, Rysavy Research LLC, spoke to the importance of data prioritization in the application of Internet of Things (IoT) devices. Free Press Action Fund Policy Director Matt Wood testified in support of restoring the Federal Communications Commission’s Title II authority to prevent online blocking, throttling and discrimination by internet access providers. Democrats on the subcommittee argue that opening the door to paid prioritization will give companies like Verizon and Comcast the ability and incentive to give unfair advantages to certain sites while hurting internet startups. But the GOP says that a prohibition on paid prioritization inhibits the flow of data.

The Supreme Court announced that it would not decide whether federal prosecutors can force Microsoft to turn over digital data stored outside the United States. The move followed arguments in the case in February and the enactment of a new federal law that both sides said made the case moot. “No live dispute remains between the parties,” the court said in a brief, unsigned opinion. The case, United States v. Microsoft, No. 17-2, had seemed poised to be one of the most important of the current term. It posed the question of whether a 1986 law, enacted before the dawn of the big-data era, applied to digital information stored outside the nation’s borders. When the case was argued, several justices said Congress rather than the court should act to define the limits of privacy in the digital age. Congress did. On March 23, it enacted the Cloud Act — more formally, the Clarifying Lawful Overseas Use of Data Act. The new law, unlike the one from 1986, clearly applied to data held overseas.

The US Commerce Department’s National Institute of Standards and Technology (NIST) has released version 1.1 of its popular Framework for Improving Critical Infrastructure Cybersecurity, more widely known as the Cybersecurity Framework. The framework was developed with a focus on industries vital to national and economic security, including energy, banking, communications and the defense industrial base. It has since proven flexible enough to be adopted voluntarily by large and small companies and organizations across all industry sectors, as well as by federal, state and local governments. Version 1.1 includes updates on:

• authentication and identity,
• self-assessing cybersecurity risk,
• managing cybersecurity within the supply chain and
• vulnerability disclosure.

The changes to the framework are based on feedback collected through public calls for comments, questions received by team members, and workshops held in 2016 and 2017. Two drafts of Version 1.1 were circulated for public comment to assist NIST in comprehensively addressing stakeholder inputs.

On April 12th, the Irish High Court elevated a series of questions to the European Court of Justice (ECJ, the Supreme Court of the European Union) regarding the validity of key legal instruments used by American tech companies to process Europeans’ personal data. Judge Caroline Costello of the Irish High Court is concerned about the national surveillance practices of the United States and the level of privacy rights observed there. The ECJ’s answers to these questions will probably disrupt transatlantic data flows in the near future, oblige American companies to re-evaluate their international data transfer practices if they wish to participate in the European market, and manifest (once again) that the U.S. needsto radically reform its approach to privacy protection. It has become increasingly obvious that passing privacy legislation in America is not only the right thing to do, but is also the business-smart thing to do.

One Laptop Per Child wasn’t just a laptop, it was a philosophy. After announcing “the $100 Laptop,” OLPC had one job to do: make a laptop that cost $100. As the team developed the XO-1, they slowly realized that this wasn’t going to happen. OLPC pushed the laptop’s cost to a low of $130, but only by cutting so many corners that the laptop barely worked. Its price rose to around $180, and even then, the design had major tradeoffs. While Sugar was an elegant operating system, some potential buyers were dubious of anything that wasn’t Microsoft Windows. They wanted students to learn an interface they’d be using for the rest of their lives, not just with the XO-1. OLPC may have undercut even the XO-1’s strong points by overselling them. And since OLPC had put so much focus on cost, OLPC co-founder Walter Bender began to worry that people saw the project as a hardware startup, not an educational initiative.