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By Paul Glist
Last week, Sens. John Kerry and John McCain and Reps. Cliff Stearns and Jim Matheson offered new privacy bills. The Kerry-McCain Senate bill and the Stearns-Matheson House bill each seeks to apply a common set of fair information practices on virtually all businesses, online and offline, that collect information about consumers or consumer behavior. For the moment, both bills are directed to commercial and non-profit organizations (such as many online businesses) that are currently not under privacy regulation.
Continue Reading...Verizon just announced that it has filed a lawsuit in the federal D.C. Court of Appeals to challenge the FCC's Net Neutrality Order that was adopted during the Commission's December open meeting. We have not yet seen the contents of the complaint, but Verizon's brief press release is available here.
For information about the FCC's Net Neutrality Order, please read our prior posts:
FCC Adopts Net Neutrality Rules; Relies on Title I Ancillary Jurisdiction
DWT ADVISORY: FCC Releases Details on Net Neutrality Rules
DWT Advisory: A Critique of the Legal Reasoning Behind the FCC's Net Neutrality Order
An earlier Davis Wright Tremaine advisory described the requirements of the Federal Communications Commission’s new “net neutrality” rules—transparency, no blocking, and no unreasonable discrimination. It also noted that the legal analysis in the Net Neutrality Order (NNO) “may stretch the FCC’s logic and authority beyond the breaking point.” This advisory expands on that observation. It also addresses the business, legal, and political context in which the rules were issued.
Net neutrality prior to the NNO
The rules are based on the FCC’s determination that regulation is necessary to assure the continued growth and development of the Internet. That is a departure from previous FCC administrations, for whom, with a few exceptions, “Hands off the Internet” was not just a slogan, but a policy.
Among those deregulatory programs, most relevant for present purposes are those classifying broadband Internet access as an “information service,” rather than a “telecommunications service.” The “classification orders” reflected the FCC’s view that broadband should be exempt from traditional common carrier / public utility regulation (e.g., the obligation to provide just, reasonable, and nondiscriminatory service upon request, transfer of control oversight, and possible regulation of rates, among others). The FCC viewed such regulation as a deterrent to broadband investment. (See this DWT advisory for analysis of the first of these orders, the 2002 Cable Modem Declaratory Ruling.)
By Chris Savage and Paul Hudson.
The Federal Communications Commission (FCC) today adopted its widely anticipated Notice of Inquiry in response to the D.C. Circuit’s ruling in the Comcast case, which held the FCC had not justified its assertion of “ancillary” authority over broadband Internet access network management practices. (Our alert regarding the Comcast ruling is available here). The Notice seeks comment on three ways to re-establish authority over broadband, including Chairman Julius Genachowski’s “Third Way” proposal to treat “wired broadband Internet connectivity” as a telecommunications service under Title II of the Communications Act, then forbear from applying some of the specific obligations that would arise from that status. (Our Broadband Law Advisor piece on the Chairman’s proposal is available here, and an opinion on the Chairman’s proposal is available here).
For more information, please contact Chris Savage or Paul Hudson.
By James F. Ireland, James W. Tomlinson, and Christopher A. Fedeli
At its May 20, 2010, Open Meeting, the Federal Communications Commission (FCC) adopted an Order and Further Notice of Proposed Rulemaking (Order/FNPRM) to ensure nondiscriminatory, just, and reasonable rates, terms and conditions for access to investor-owned utility poles in the 30 states where such attachments are regulated by the FCC.
In its 94-page Order/FNPRM, the FCC adopts two new requirements relating to pole access and construction practices and proposes a host of new rules governing rates, terms and conditions of pole access to encourage broadband deployment and competition consistent with recommendations made in the National Broadband Plan (“Plan”).
* DWT ADVISORIES provide in-depth and comprehensive analyses of some of the most important communications issues today. These Advisories are posted to the Broadband Law Advisor without e-mail notification. However, if you would like to receive DWT ADVISORIES directly in your inbox, sign up on the ADVISORY subscription page.
In publicizing his decision to reclassify broadband as a Title II telecommunications service, FCC Chairman Genachowski took some pains to try to reassure the investment community that he was not making any sudden moves that should discourage broadband investment. But despite his efforts to try to limit the impact of his move, he has crossed a Rubicon that should never have been crossed. Broadband internet was never regulated under the Title II rules that grew up for the monopoly “Ma Bell” era, and for good reason. It was because the Internet was allowed to grow in an unregulated competitive market that attracted massive investment by competing providers and delivered the astonishing broadband throughput that enables all the cool Internet business models. No student of technology should feel comforted when the government decides that technological innovation has gone far enough, and we can stop now and write it into rule. No student of regulatory history should be sanguine about promises to limit the scope of government once it asserts control. Every student of government should be alarmed when the government picks favorites, asserting control over the selected few parties who built the “core” of the Internet to today’s capabilities, to benefit its favored parties at the “edge,” claiming all the while that it is not touching the Internet or free speech, when it is in fact doing both. It has been only weeks since we and Google collectively scolded China for centralized government controls which are anathema to the Internet—and now we are inviting centralized government controls when it favors Google. We should be troubled, too, by some of the reasoning offered. It conspicuously avoids inconvenient facts, such as broadband never having been subject to “Ma Bell” regulation. It seeks to write for itself a new Title of the Communications Act that Congress never adopted, ignoring a Congressional mandate to leave the Internet “unfettered” by regulation. While the Commission will be inviting further comment, matters this profound should not be left to an unelected agency, no matter how bright and well-meaning. If we are to reconstruct communications and media law, we should be turning to Congress. And if we are straying towards a world in which the government decides which speech is free and which is not, we should be turning to the Bill of Rights to remind us of why the government is supposed to limit its reach in the first place.
By Paul B. Hudson, Danielle Frappier, and Michael C. Sloan
Proposals to reform the Universal Service Fund High-Cost Program have been circulating at the Federal Communications Commission (FCC) for years. Last week, the FCC launched a proceeding to escalate high-cost reform as part of the implementation of the recently released National Broadband Plan. (Our summary of the universal service terms of the Plan is available here.)
This new proceeding, in the form of a Notice of Inquiry and Notice of Proposed Rulemaking (NOI/NPRM) seeks comment on ways to use High-Cost Program funds to expand broadband services and shift funding away from services and areas no longer in need of support. It also seeks comment on ways to limit the growth of the funds, as well as ways to improve broadband deployment.
Although the NOI/NPRM does not make proposals for the creation of the new Connect America Fund (CAF), which is one of the centerpiece proposals of the Broadband Plan, it does offer some insight into the FCC’s thinking of what that future fund should look like.
By Ronnie London and Brian Nixon
The Federal Communications Commission (FCC) released a Notice of Inquiry (NOI) on April 21, 2010, seeking public comment on the proposed creation of a voluntary cybersecurity certification program by which participating communications service providers would be certified—by the FCC or a third party, as determined by the FCC—as adhering to a set of cybersecurity objectives and/or practices.
The program begins the process of effectuating a recommendation in the National Broadband Plan, issued by the FCC last month, by seeking to increase the security of the nation’s broadband infrastructure, promote a culture of more vigilant cybersecurity, and offer end-users more complete information about their communication service providers’ cybersecurity practices.
Comments on the NOI will be due 60 days from the date of its publication in the Federal Register, which generally occurs several days or weeks after FCC release of an action such as this.
By Paul Glist and Paul B. Hudson
The FCC launched two related proceedings on set-top box issues at its April 21, 2010, open meeting.
One is a Notice of Inquiry (NOI) posing extensive long-term questions about the possibility of requiring all multichannel video programming distributors (MVPDs) to provide adaptors by Dec. 31, 2012, that translate their programming into standard video feeds that may be consumed by a variety of retail devices.
The other is a Notice of Proposed Rulemaking (NPRM) to address perceived short-term CableCARD issues. This NPRM could affect the availability of high-definition (HD) digital terminal adaptors (DTAs), the use of switched digital tuning adaptors used to expand the tuning range of “one-way” retail devices, digital outputs from HD set-top boxes, the installation process and pricing for CableCARDs, and the certification of “one-way” retail devices.
The NOI and the NPRM, as well as the Commissioners' statements (Genachowski, Copps,McDowell, Clyburn, Baker), are now available.
By Christopher W. Savage and Robert G. Scott, Jr.
On April 6, 2010, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the Federal Communications Commission (FCC) exceeded its authority when it sought to regulate Comcast’s network management practices for its high-speed Internet access service. The court vacated the FCC’s Aug. 1, 2008, ruling that Comcast’s former practice of using various techniques to moderate the amount of bandwidth used by peer-to-peer services such as BitTorrent violated the FCC’s 2005 “Internet Policy Statement.” (Continue reading.)
Immediately following the court's decision, the FCC extended its reply comment deadline in its Open Internet Proceeding (i.e., Net Neutrality) to April 26, 2010. The original date for reply comments was April 8.
The DC Circuit's opinion (Comcast Corp. v. Federal Communications Commission, No. 08-1291 (D.C. Cir. April 6, 2010)) is available here.
By Robert G. Scott, Jr. and James M. Smith
On March 16, 2010, the Federal Communications Commission (FCC) presented to Congress its long-anticipated National Broadband Plan, as mandated by the American Recovery and Reinvestment Act of 2009 (the “Recovery Act”). Thirteen months in the making and weighing in at nearly 400 pages, “Connecting America: The National Broadband Plan” (the “Plan”) has occupied a disproportionate share of the FCC’s time and energy for the last year and, given the breadth and sheer quantity of its analysis and proposals, it will continue to be the single greatest focus of the agency for years to come.
Section 6001 of the Recovery Act, signed into law by President Obama on Feb. 17, 2009, less than a month after his inauguration, mandated the dispersal of $7.2 billion through grant and loan programs to expand broadband deployment to, and adoption by, unserved and underserved areas and vulnerable populations. Those programs—the Broadband Technology Opportunities Program (BTOP) administered by the Department of Commerce and the Broadband Initiatives Program (BIP) administered by the Department of Agriculture—are underway, and by law, all of these grants must be awarded by September 30, and the projects completed within three years thereafter.
But Subsection 6001(k) of the Recovery Act also directed the FCC to submit to Congress a National Broadband Plan for the longer term, to pick up where these broadband deployment and other short-term projects leave off “to ensure that all people of the United States have access to broadband capability and [to] establish benchmarks for meeting that goal.”
Congress ordered the FCC to include (1) “analysis of the most effective and efficient mechanisms for ensuring broadband access” by all Americans, (2) “a detailed strategy for achieving affordability of such service and maximum utilization of broadband infrastructure” by the public, (3) “an evaluation of the status of deployment of broadband service, including progress of projects supported by the [BTOP and BIP] grants,” and (4) “a plan for use of broadband infrastructure and services in advancing consumer welfare, civic participation, public safety and homeland security, community development, health care delivery, energy independence and efficiency, education, worker training, private sector investment, entrepreneurial activity, job creation and economic growth, and other national purposes.”
Continue reading DWT"s Analysis of the National Broadband Plan.
Download the National Broadband Plan.
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