Internet/Broadband

As we move from the networks of today to those of tomorrow, the Federal Communications Commission wants to work collaboratively with everyone affected—particularly Tribal partners. That’s why, later in June, I’ll hit the road to discuss this transition with Tribal Nations. Some FCC coworkers and I have been kindly invited to attend the Mid-Year Session of the National Conference of American Indians (NCAI), which is the “oldest, largest, and most representative American Indian and Alaska Native organization” serving Tribal interests. We’ll be participating in consultation sessions with a number of Tribes (and in addition to these NCAI sessions, dedicated FCC staff are already doing outreach to Tribes on both conference calls and visits to Indian Country).

I believe that the FCC and Tribal Nations share the same goal—ensuring high-speed Internet access to anyone who wants it, while respecting and preserving sites with historic, religious, and cultural significance to Tribes. To achieve this goal, the FCC needs to and wants to exchange perspectives with Tribes on the full range of issues associated with the deployment of wireless broadband infrastructure. I invite the leaders of the 567 federally-recognized Tribes and Native Hawaiian Organizations to join this important conversation.

Exclusive deals between broadband providers and landlords have long been a problem for Internet users, despite rules that are supposed to prevent or at least limit such arrangements. The Federal Communications Commission is starting to ask questions about whether it can do more to stop deals that impede broadband competition inside apartment and condominium buildings.

FCC Chairman Ajit Pai released a draft Notice of Inquiry (NOI) that seeks public comment “on ways to facilitate greater consumer choice and to enhance broadband deployment in multiple tenant environments (MTEs).” The commission is scheduled to vote on the NOI at its June 22 meeting, and it would then take public comments before deciding whether to issue new rules or take any other action.

The Federal Communications Commission is standing with the Federal Trade Commission when it comes to a federal court decision that leaves a potential regulatory gap for broadband regulation, in the process taking a shot at AT&T. The US Court of Appeals for the Ninth Circuit in May agreed to an en banc (full court) review of its three-judge panel decision that left the Federal Trade Commission's authority to oversee edge-provider's protections of privacy in some circumstances very much in doubt. The court also said that in the interim that panel decision was not to be cited as precedent of the Ninth Circuit.

Such en banc review is unusual, but the decision had prompted a lot of attention given that potential online privacy impact. The three-judge panel, in overturning the FTC's action against AT&T for throttling the speeds of unlimited data customers, last August ruled that the regulatory exemption that prevents the FTC from regulating common carriers is not "activity-based," confined to common carrier "activity" by an entity that has the status of a common carrier, but is status-based, extending to noncommon carrier activity by that entity as well. That meant that if Verizon, a common carrier, bought Yahoo!, an edge provider, the FTC could not enforce Yahoo! privacy policies, and the FCC could not either because it does not regulate edge providers, leaving a potential privacy gap.

Cable operator Internet service providers have been pushing hard against an opt-in regime for sharing user data with third parties, but there is another opt-in regime they are concerned about avoiding. In a phone call with the office of Commissioner Mignon Clyburn of the Federal Communications Commission, NCTA–The Internet & Television Association VP and deputy general counsel Diane Burstein argued against applying that regime to how broadband operators provide required notifications to their customers.

The FCC signaled it would be voting on a request for declaratory ruling by NCTA and the American Cable Association that they be allowed to e-mail those notifications rather than have to send out paper. FCC Chairman Ajit Pai has signaled support for that ruling, so it is expected to pass, but how it is implemented is also important to ISPs. Burstein told Commissioner Clyburn staffers that though operators would continue to offer paper notices to customers who wanted them, the default should be electronic unless a subscriber opts out and chooses paper.

[Commentary] Like the network neutrality debate, the privacy debate has been hijacked by noise rather than analysis, filling the zeitgeist with several misconceptions about the state of American privacy law. No doubt this misinformation campaign contributed to House Communications Subcommittee Chairman Marsha Blackburn’s (R-TN) decision to introduce this bill. But the act ultimately sacrifices the internet’s primary revenue engine in an attempt to solve a problem that the relevant agencies are well on their way to resolving on their own.

If Congress wanted to make a real contribution, it could repeal the Federal Trade Commission Act’s outdated common carrier exemption, which helped trigger this debate. While well-intentioned, the BROWSER Act accomplishes little good while threatening significant harm to the internet ecosystem.

[Daniel Lyons is an associate professor at Boston College Law School]

Federal Communications Commission Chairman Ajit Pai announced that the following items are tentatively on the agenda for the June Open Commission Meeting scheduled for Thursday, June 22, 2017:

New Emergency Alert System Event Code For Blue Alerts – The Commission will consider a Notice of Proposed Rulemaking that would amend the Commission’s Emergency Alert System (EAS) rules to add a dedicated event code, “BLU,” for Blue Alerts, so that EAS alerts can deliver actionable information to the public when a law enforcement officer is killed, seriously injured, missing in connection with his or her official duties, or if there is an imminent and credible threat to a law enforcement officer. (PS Docket No. 15-94)

First Responder Network Authority – The Commission will consider a Report and Order that establishes the procedures and standards the Commission will use to review alternative plans submitted by states seeking to "opt-out" of the FirstNet network and to build their own Radio
Access Networks that are interoperable with FirstNet. (PS Docket No. 16-269)

Exemption to Calling Number Identification Service – The Commission will consider a Notice of Proposed Rulemaking that would amend the Caller ID rules to allow disclosure of blocked Caller ID information to aid law enforcement in investigating threatening calls and continue the
waiver of those rules that is currently in effect for Jewish Community Centers. (CG Docket No. 91-281)

OneWeb Market Access Request – The Commission will consider an Order and Declaratory Ruling that recommends granting OneWeb’s request to be permitted to access the U.S. market using its proposed global non-geostationary satellite constellation for the provision of broadband communications services in the United States. (IBFS SAT-LOI-20160428-0041)

Improving Competitive Broadband Access to Multiple Tenant Environments – The Commission will consider a Notice of Inquiry that seeks comment on ways to facilitate greater consumer choice and enhance broadband deployment in multiple tenant environments such as
apartment buildings, condominium buildings, shopping malls, or cooperatives. The Notice of Inquiry further seeks comment on the current state of broadband competition in such locations and whether additional Commission action in this area is warranted to eliminate or reduce barriers faced by broadband providers that seek to serve the occupants of multiple tenant environments. (GN Docket No. 17-142)

Electronic Annual Notice Declaratory Ruling – The Commission will consider a Declaratory Ruling which would clarify that the “written information” that cable operators must provide to their subscribers via annual notices pursuant to Section 76.1602(b) of the Commission’s rules may be provided via e-mail. (MB Docket No. 16-126)

Modernization of Payphone Compensation Rules – The Commission will consider a Notice of Proposed Rulemaking and Order that (1) proposes to eliminate the requirement that carriers that complete payphone calls conduct an annual audit of their payphone call tracking systems and file an associated annual audit report with the Commission, and (2) waives the annual audit and associated reporting requirement for 2017. (WC Docket Nos. 17- 141 and 16-132; CC Docket No. 96-128).

Enforcement Bureau Action - The Commission will consider an enforcement action.

The Lifeline Connects Coalition spoke with staff at the Federal Communications Commission’s Wireline Competition Bureau on May 26, 2017 to discuss the Universal Service Administrative Company’s (USAC) current plan to require Lifeline subscribers to re-prove their eligibility when they are migrated to the Lifeline National Verifier and the significant burden and confusion that will impose on Lifeline participants. The Coalition said obtaining re-proof of eligibility from Lifeline subscribers is likely to be highly unsuccessful and the overwhelming majority of those de-enrollments would be due to consumers’ failure or inability to respond, not their lack of continuing eligibility for Lifeline.

The Federal Communications Commission’s Wireline Competition Bureau released a Public Notice on May 31, 2017 granting, denying and dismissing various petitions related to actions taken by the Universal Service Administrative Company (USAC) on the E-rate program and rural healthcare. Petitions for reconsideration or applications for review of these decisions must be filed within 30 days of the Public Notice.

As with many past industry-supported attacks on municipal broadband, it will take some time for interested readers to dig into the details of the University of Pennsylvania Law School professor Christopher Yoo’s study and fully understand its strengths and weaknesses. That will occur in due course. There are, however, a number of serious problems with this study that leap out at once.

For one thing, almost immediately after releasing their report, the authors issued a press release acknowledging that they had “erroneously stated that the bonds used to finance the projects in Chattanooga, TN; Lafayette, LA; and Wilson, NC; call for balloon payments toward the end of their bond terms.” While the authors claim that this error did not affect their financial analysis, one wonders how many other serious errors exist in the study—and how many other times the authors took shortcuts instead of reviewing the full available data. Perhaps if they had contacted the cities at issue to verify the data, they could have caught this mistake in advance. Apparently, they skipped that step as well. A particularly important shortcoming of the study is that the choice of 2010 through 2014 as the study period introduced significant selection bias. Another problem with the Yoo study is that the boldness of its conclusions is undermined by the many caveats and qualifications set forth at various points in the study.

Too often, reports on the feasibility of municipal broadband networks in smaller markets are sponsored by large telecom companies with a financial stake in the game. Many communities with muni networks wonder if these researchers are measuring success the wrong way.