Federal Communications Commission (FCC)

Rollback of the FCC’s ISP broadband privacy rules is “rapid implementation” of a “no-cops-on-the-beat approach,” which will continue to be the case until the common carrier exemption is lifted, said FTC Commissioner Terrell McSweeny at a Monday event hosted by New America’s Open Technology Institute and Public Knowledge. Congressional Republicans who voted for the law killing the FCC privacy rules, meanwhile, came under fire at town halls held during the congressional two-week recess. Sen. Richard Blumenthal, D-Conn., wants to ensure through legislation the FTC still has authority to act and is introducing the Managing Your Data Against Telecom Abuses Act, also known as the My Data Act.

An FCC draft wireline infrastructure rulemaking notice got more support than opposition heading into a scheduled vote Thursday, despite language proposing to roll back technology transition copper-retirement rules and streamline the process for discontinuing telecom services, which include safeguards backed by telco competitors (see 1704060046). In final lobbying before Sunshine Act restrictions took effect April 13, Verizon welcomed the agency's efforts to boost fiber deployment, and Google Fiber and the American Cable Association (ACA) voiced support while suggesting some tweaks to an NPRM section on pole attachments.

More critics of a draft business data service order are pressing the FCC to delay a vote planned for the April 20 meeting of commissioners, so far to no effect. The U.S. Small Business Administration and others said more time is needed to address deregulatory BDS proposals in the draft they say would harm business market competition and customers. If nothing else, the agency should create a three-year transition for implementing a new framework, some said. Some are skeptical there will be a pause.

Industry groups and companies, eager to gain access to the 5.9 GHz band for Wi-Fi, raised concerns about a National Highway Traffic Safety Administration rulemaking notice on dedicated short-range communications (DSRC) technology and other vehicle-to-vehicle (V2V) communications. But auto industry commenters said the technologies that would be allowed as a result of new rules are critical to public safety. Public interest and free-market groups were on the same page on the 5.9 GHz issue. There was speculation early in the Trump administration the White House might kill the rulemaking (see 1612130050), released in December in the late days of the Obama presidency. Comments were posted in docket NHTSA-2016-0126.

Texas right-of-way rules should be updated to reflect communications technology changes, Public Utility Commission members said Thursday. At their meeting, all three commissioners said they leaned toward adopting a proposed decision by administrative law judges, siding with ExteNet in the distributed antenna systems (DAS) provider’s compensation dispute with Houston (see 1703200049). But commissioners postponed a vote until the PUC’s April 28 meeting, saying they need more time to study the ALJ proposal. Meanwhile, legislation meant to relax local rules for wireless siting moved forward this week in Hawaii, Indiana and Missouri.

State ISP privacy laws will confuse consumers and create litigation, industry officials testified at a legislative hearing live streamed Wednesday from Washington, one of several states moving bills to counter President Donald Trump and Congress’s use of the Congressional Review Act to kill FCC broadband privacy rules (see 1704060055). At least 10 legislatures are now mulling ISP privacy rules, and observers expect more to follow. A critical mass of states could push Congress to write federal rules, said Center for Democracy and Technology Policy Analyst Natasha Duarte.

A California telecom group backed a San Francisco request to extend FCC comment dates on a Multifamily Broadband Council (MBC) petition for federal pre-emption of a San Francisco ordinance mandating ISP competitive choice in multi-tenant buildings (see 1612150006). Members of the California Association of Competitive Telecommunications Companies "have benefitted from the ordinance, and the request extensions would greatly enhance CALTEL's ability to contribute more comprehensive comments," said the group's filing Tuesday in docket 17-91. The MBC asked the FCC to say "Article 52 of the San Francisco Police Code is preempted by federal law and policy," said an April 4 FCC Media Bureau public notice, which set comments for May 4, replies May 19. MBC said Article 52 requires a multiple occupancy building owner to permit competing "communications service provider[s] onto his or her property upon the request of an ‘occupant,’ and to permit the additional providers to use the property owner’s existing wiring even if another provider is already using it,” the PN said. "MBC argues that Article 52 conflicts with the Commission’s policies on (1) competitive access to inside wiring in multiple dwelling unit buildings, (2) bulk billing arrangements, and (3) network unbundling. MBC also asserts that federal laws with respect to inside wiring are so dominant as to preempt the field of law that Article 52 occupies."

The FCC and allies and NATOA are at odds over the significance of a federal appellate court overturning the agency's solicited fax rule and what it means for a challenge of the commission finding of effective competition in the U.S. cable market. FCC intervenor NCTA in a letter (in Pacer) Friday to the U.S. Court of Appeals for the D.C. Circuit, and the FCC in a letter (in Pacer) Thursday, said Congress expressly gave the agency authority to make effective competition determinations in franchise areas. The FCC said the fight over the agency terminating franchising authorities' certifications to regulate cable rates in areas where there's effective competition is "plainly distinguishable" from the D.C. Circuit's ruling last month that the agency's solicited fax rule is illegal (see 1703310018). The regulator said its December 2015 conclusion of effective competition in most franchise areas nationwide was consistent with the Communications Act's text and legislative history. In its letter (in Pacer) Wednesday to the D.C. Circuit, NATOA -- which along with NAB and Minnesota's Northern Dakota County Cable Communications Commission is challenging the effective competition finding (see 1508280033) -- said the D.C. Circuit junk faxing ruling "definitively rejected" FCC rationale that its solicited fax rule was lawful as long as Congress didn't prohibit it, and that since Congress didn't authorize "mass sua sponte terminations of franchising authority certifications," the court should set aside the FCC effective competition order. NCTA rejected NATOA assertions that the D.C. Circuit decision means the only way for the agency to terminate franchising authorities' certifications is after a petition, as laid out in Section 623(a)(5) of the Communications Act, saying that section of code is about seeking relief from a franchising authority that exercises its rate regulation in violation of FCC standards, and is silent about effective competition determinations.

House Commerce Committee Chairman Greg Walden, R-Ore., and more than 50 other House Republicans sent a letter to FCC Chairman Ajit Pai Friday urging the agency to protect the privacy of consumers. The letter directs Pai to “continue ensuring that ISPs fulfill their promises to consumers regarding their use of data until the FCC remedies the [Communications Act] Title II reclassification, which incorrectly removed ISP’s from the jurisdiction of the Federal Trade Commission,” said a committee news release. White House Director-Legislative Affairs Marc Short predicted last week the FCC will “take a fresh look” at ISP privacy rules once it has a full contingent of five commissioners (see 1704050027), after President Donald Trump signed a Congressional Review Act resolution repealing the rules (see 1704040059). “Protecting consumer privacy while allowing for innovation has been critical to American innovation,” the letter said. “Maintaining an environment that permits innovation without sacrificing consumer privacy is critical to our nation's future prosperity and the creation of new consumer services.”

FCC Chairman Ajit Pai's efforts to take on net neutrality could start with an NPRM in a few months, we're told. Approving new rules could take as long as a year, current and former commission officials said Friday. Pai and staff have started talking to industry representatives about the process of taking on net neutrality and repeal of broadband classification as a Communications Act Title II service. A staff team within the FCC has been working on an NPRM, agency officials and others said Friday. The goal apparently is to seek a vote by the June 15 commissioners’ meeting, since Commissioner Mignon Clyburn’s term expires June 30, they said.