Federal Communications Commission

To promote fairness, competition, and investment in this $45 billion marketplace, Federal Communications Commission Chairman Tom Wheeler circulated to his fellow Commissioners proposed rules to take necessary and overdue steps to reform a long-broken regulatory regime.

The Order provides a new framework for the Business Data Services (BDS or “special access”) market that strikes a balance between targeted regulation for legacy TDM (DS1 and DS3) services, where evidence of market power is strongest, and lighter-touch regulation of packet-based services, where there has been new entry and competition may be emerging. The Order also reaffirms that TDM and Ethernet BDS are both subject to the Commission’s Title II oversight. This framework supports the rapid deployment of innovative 5G mobile service by ensuring that wireless providers have fair access to BDS, including packet-based BDS, at just and reasonable rates, terms, and conditions. These requirements are enforced by strengthening our complaint process to expedite resolution of problems if they arise.

The Chairman is also proposing a Further Notice on packet-based BDS, which will provide the Commission with a vehicle to take further action on Ethernet pricing if that proves necessary. A Second Further Notice of Proposed Rulemaking would seek comment on how best to collect accurate data on market developments and what administrable means can be developed, if necessary, to deal with any concerns that may emerge with respect to pricing for packet-based BDS.

Federal Communications Commission Chairman Tom Wheeler announced that the following items are tentatively on the agenda for the October Open Commission Meeting scheduled for Thursday, October 27, 2016:

1. Protecting the Privacy of Customers of Broadband and other Telecommunications Services: The Commission will consider a Report and Order that applies the privacy requirements of the Communications Act to broadband Internet access service providers and other telecommunications services to provide broadband customers with the tools they need to make informed decisions about the use and sharing of their information by their broadband providers. (WC Docket No.16-106)
2. Deceptive Marketing: The Commission will separately consider four Memorandum Opinions and Orders that dismiss and deny Petitions for Reconsideration of four Forfeiture Orders issued by the Commission for the deceptive marketing of prepaid calling cards.

Separately, the FCC announced it has lifted the sunshine restrictions applicable to Expanding Consumers’ Video Navigation Choices (MB Docket No. 16-42); Commercial Availability of Navigation Devices (CS Docket No. 97-80) – an item that was deleted from the Commission’s Sept meeting agenda. So, talk amongst yourselves.

Earlier in 2016, the Federal Communications Commission launched a proceeding aiming to extend similar privacy protections to the information collected by your broadband provider. Our goal throughout the process has been straightforward: to give consumers the tools they need to make informed decisions about how ISPs use and share their data, and the confidence that ISPs are taking steps to keep that data secure, all while providing ISPs the flexibility they need to continue to innovate.

Over the past six months, we’ve engaged with consumer and public interest groups, fixed and mobile ISPs, advertisers, app and software developers, academics, other government actors including the FTC, and individual consumers to figure out the best approach. Based on the extensive feedback we’ve received, I am proposing new rules to provide consumers increased choice, transparency and security online. I have shared this proposal with my colleagues and the full Commission will consider these proposed privacy rules at our upcoming monthly meeting on October 27.

Under the proposed rules, an ISP would be required to notify consumers about what types of information they are collecting, specify how and for what purposes that information can be used and shared, and identify the types of entities with which the ISP shares the information. In addition, ISPs would be required to obtain affirmative “opt-in” consent before using or sharing sensitive information. Information that would be considered “sensitive” includes geo-location information, children’s information, health information, financial information, social security numbers, web browsing history, app usage history, and the content of communications such as the text of emails. All other individually identifiable information would be considered non-sensitive, and the use and sharing of that information would be subject to opt-out consent. Calibrating consent requirements to the sensitivity of the information aligns with consumer expectations and is in harmony with other key privacy frameworks and principles – including those outlined by the FTC and the Administration’s Consumer Privacy Bill of Rights. The proposed rules are designed to evolve with changing technologies, and would provide consumers with ways to easily adjust their privacy preferences over time.

The proposed rules also require ISPs to take reasonable measures to protect consumer data from breaches and other vulnerabilities. If a breach does occur, the rules would require ISPs to take appropriate steps to notify consumers that their data have been compromised.

In a letter dated April 15, 2016, to Federal Communications Commission Chairman Tom Wheeler, Senate Commerce Committee Chairman John Thune (R-SD) asked that the FCC address concerns raised by him regarding the potential violation of 47 C.F.R. § 19.735-203, pertaining to disclosure of "nonpublic information. . . directly or indirectly, to any person outside the Commission," as a complaint requiring an investigation pursuant to 47 C.F.R. § 19.73 5-107(b). Specifically, Chairman Thune expressed concern that information regarding the 2016 Lifeline Modernization Order, 31 FCC Rcd 3962 (2016), specifically news of an agreement among FCC Commissioners O'Rielly, Pai and Clyburn to vote for a hard cap on Lifeline spending set at $2 billion (the "deal" or "compromise"), appeared in the news media publications Politico and Broadcasting & Cable prior to the FCC's vote on the Lifeline Order.

Based on Investigators' review of phone records, email messages and interviews, Gigi Sohn, Counselor to the FCC Chairman, provided some of the information revealed in the Politico story that appeared at approximately 10:49 am on March 31, 2016. In an interview, Sohn revealed that Shannon Gilson, FCC Communications Director, requested that Sohn call Politico reporter Margaret McGill and inform McGill that the FCC meeting was delayed from 10:30 until 12:00 and that there was a compromise on Lifeline, including the fact that there would be an annual cap on the amount of money available in the Lifeline program. Sohn was instructed not to tell McGill the amount of the agreed-upon cap. In an interview, Gilson explained that throughout the morning of March 31st, the FCC Office of Media Relations had been inundated with calls from the press and that it was clear many reporters and stakeholders were already aware a deal was being crafted by Commissioner Clyburn and the Republican commissioners. Thus, because she felt it would be beneficial to get the story out accurately, Gilson sought and received authorization from Chairman Wheeler and Ruth Milkman, Wheeler’s Chief of Staff, to provide the press with high level details. Gilson exercised her discretion in choosing both Politico and McGill as the appropriate recipients of this information, and instructed Sohn to make the call. We have been unable to determine with certainty who provided McGill with the information on the amount of the agreed upon cap.

We found no evidence that the information was provided to the press in an attempt to unduly influence the outcome of the vote.

Federal Communications Commission Chairman Tom Wheeler has circulated to his fellow Commissioners a proposed Order to give consumers the tools they need to choose how their Internet service provider (ISP) uses and shares their personal data.

Building on widely accepted privacy principles, the rules would require that ISPs provide their customers with meaningful choice and keep customer data secure while giving ISPs the flexibility they need to continue to innovate. The rules, if adopted, would not prohibit ISPs from using or sharing their customers’ information – they would simply require ISPs to put their customers in the driver’s seat when it comes to those decisions. The approach Chairman Wheeler is recommending reflects extensive public comments received in response to the comprehensive proposal adopted by the Commission in March, including input from the Federal Trade Commission. Here's an outline of Chairman Wheeler's proposal:

• Focus is on providing consumers choice over how to protect their privacy and their children's privacy online.
• ISPs must tell customers about the collection, use, and sharing of their information.
• Prohibits "Take-it-or-leave-it" offers, meaning that an ISP can't refuse to serve customers who don't consent to the use and sharing of their information for commercial purposes.

The full Commission will vote on the proposed Order at the FCC’s October 27 Open Meeting.

This White Paper discusses the need for access to information and communications technologies by people with cognitive disabilities, and what that access entails. It highlights the importance of ICT, and the particular benefits that these technologies can afford individuals with cognitive disabilities. The part that follows identifies the following three reasons that people with cognitive disabilities have not adopted ICT at the same rate as Americans without disabilities: (1) the failure of many technologies to be accessible to people with cognitive disabilities; (2) the lack of effective outreach to people with cognitive disabilities about the availability of accessible features and practical uses of those features, which has led to misconceptions about ICT’s relevance to this population; and (3) the tendency of people with cognitive disabilities to have lower incomes and therefore be less able to afford certain technology.

With this White Paper, the FCC’s Consumer and Governmental Affairs Bureau recommends several solutions and adaptive tools to address each of these barriers to access and adoption. The paper concludes by clarifying the legal bases underlying the rights to ICT access by people with cognitive disabilities.

I’d like to use my remarks to bring you up to speed on what we’re doing at the Federal Communications Commission to address the challenges of Americans with cognitive disabilities.

We are at a time when digital technology – Internet Protocol, or “IP” technology – offers the greatest opportunity in history to use technology to attack challenges that have affected individuals since the beginning of time – including the 30 million Americans with cognitive disabilities. We are at an historical juncture. If we don’t do everything possible to harness this marvelous new technology revolution to attack the challenges of individuals with disabilities, then shame on us. One of the most important things that needs to happen is that accessibility needs to be baked into the development of mainstream consumer electronics and services. I said it before, but it bears repeating, access to the wonders of technology must be a forethought, not an afterthought. The FCC’s Disability Rights Office has also taken an in-depth look at communications technologies for people with cognitive disabilities, noting accessibility barriers and delineating steps we can take to ensure that our policies eliminate them. Today, I am proud to announce the release of the Commission’s very first White Paper on cognitive disabilities which discusses these issues and presents solutions for accessible information and communication technologies. The paper identifies three primary barriers. First, the lack of accessibility; and second, economic barriers, resulting from the lower incomes that are prevalent in this population. But – and I’m sure this is no surprise to you – we found something else that appears to be preventing the full utilization of emerging communications technologies. That is the lack of outreach to people with cognitive disabilities and their support networks about both their rights to accessible technologies and the availability of some communications technologies that can already improve their daily lives in significant ways...So here’s the bottom line. This is our time to make a difference.

Since the set top box deliberations presumably will continue in coming weeks, it seems appropriate and necessary to outline the problem areas I see preventing a conclusion:

Federal Communications Commission Control of the Model License and API: Some have proposed replacing provisions in earlier versions that provided explicit FCC review and approval roles with active FCC monitoring and threats of future action if progress is deemed unsatisfactory.
The Myth of Universal Search: One of the benefits of the item touted by proponents is that it will enable a competitive market in so-called “universal” or “integrated” search apps.
Questionable Feasibility: A key component of this item is a requirement that every multichannel video programming distributor with over 400,000 subscribers develop and support a native app for every widely deployed operating system.
Opening the Door to the App Tax: Today, many of the widely deployed platforms usually receive an upfront fee or cut of revenues from software developers to have their apps made available on these very popular platforms.
Competition from Pirated Content: Programmers and MVPDs have registered valid concerns that the third party integrated search engines contemplated by the item would result in pirated content being displayed in search results alongside legitimate MVPD content.
Substantively, the only way to fix the item is to address the key problems and flaws identified above. Only by doing so would a true app-centric approach be workable for most of the affected companies. More importantly, it’s the only way to get a resolution that would benefit consumers by eliminating the set top box altogether for those interested.

The Office of Management and Budget (OMB) has approved, for a period of three years, the information collection requirements associated with certain of the provision of the rules adopted as part of the Federal Communications Commission’s Third Further Notice of Proposed Rulemaking, Order on Reconsideration, and Further Report and Order (Lifeline Third Reform Order).

• The rule amendments to 47 CFR 54.202(a)(6), (d), and (e), and 54.205(c) published at 81 FR 33025, May 24, 2016, will become effective October 3, 2016.
• The rule amendments to 47 CFR 54.101, 54.401(a)(2), (b), (c), (f), 54.403(a), 54.405(e)(1), (e)(3) through (e)(5), 54.407(a), (c)(2), (d), 54.408, 54.409(a)(2), 54.410(b) through (e), (g) through (h), 54.411, 54.416(a)(3), 54.420(b), and 54.422(b)(3) will become effective December 2, 2016.
• The rule amendments to 47 CFR 54.410(f) will become effective January 1, 2017.
• The rule amendments to 47 CFR 54.400(l) are applicable October 3, 2016.
• The rule amendments to 47 CFR 54.400(f), (j), and (m) through (o) are applicable December 2, 2016.

The Universal Service Fund/ Intercarrier Compensation Transformation Order set the course for the comprehensive modernization of universal service for the 21st century. In so doing, the Federal Communications Commission set an ambitious goal of universal broadband and advanced mobile coverage. As part of the Connect America Fund, the FCC created the Mobility Fund, a universal service support mechanism dedicated exclusively to mobile services.

Phase I of the Mobility Fund provided one-time support to accelerate our nation's ongoing efforts to close gaps in mobile wireless service. In order for the Mobility Fund to improve coverage in these areas for current-generation or better mobile voice and broadband services, the FCC needs detailed coverage data both to identify areas that lack mobile voice and broadband service and to avoid spending limited resources on support in areas where an unsubsidized provider is already offering service. Today, we are excited to announce improved analysis of coverage data, giving the FCC the ability to take the next steps toward closing the coverage gap in rural America through Mobility Fund Phase II. This is due, in large part, to our access to more reliable data from provider-filed Forms 477. Twice a year, mobile broadband and voice providers must submit shapefiles showing their network coverage areas and certify the accuracy of their submissions. These shapefiles depict the areas where providers have reported that consumers should expect the minimum speeds associated with 4G LTE or other network technologies. There is no better mobile coverage data available today.

This new and improved data is a major step forward over the data analyzed in the Mobility Fund Phase I auction, called the “centroid method.”