PHILADELPHIA -- The FCC faced skepticism from all three judges considering for a third time public interest group and broadcaster challenges to media ownership rules, as expected (see 1604150059). The FCC lawyer told the jurists that Chairman Tom Wheeler remains committed to his plan to circulate by June 30 an ownership item. Courtroom observers siding with FCC challengers said in follow-up interviews that rather than accepting the commission at its word, the 3rd Circuit may mandate the FCC take action.
Notable CROSS rulings
The FCC is seeking comments but the majority that voted to approve an ISP privacy NPRM March 31 will impose rules that closely follow the proposal, Commissioner Mike O’Rielly predicted on a TechFreedom podcast. “The fix is in.” O’Rielly and Commissioner Ajit Pai voted against the NPRM (see 1603310049). Meanwhile, the Association of National Advertisers (ANA) filed a letter asking the FCC to extend by 60 days the deadline for commenting. And a commission representative defended the proposal.
Cable subscribers often can't see public, educational and governmental channel listings on their interactive program guides (IPG), PEG allies have said. The programmers hope the FCC inquiry into that and other issues faced by independent and diverse programmers (see 1602180044) translates into some kind of tangible agency or lawmaker action on the problem. But action is unlikely this year given other FCC priorities, such as the set-top box proceeding, said President Mike Wassenaar of PEG channel advocacy group Alliance for Community Media. "Hopefully it plants a seed for the next administration."
The FCC's proposed ISP privacy rules expected to be voted on Thursday may hurt competition between ISPs and edge providers, may not permit beneficial uses of data and may not accommodate consumers' varying privacy preferences, said FTC Commissioner Maureen Ohlhausen, speaking Wednesday at George Mason University Law School. She said she has seen only the fact sheet released by FCC Chairman Tom Wheeler several weeks ago (see 1603100019), but the proposed privacy rules for ISPs "appear to be more restrictive than the rules for other players in the Internet ecosystem."
Members of the Vermont congressional delegation -- Sen. Bernie Sanders, I-Vt., Senate Judiciary Committee ranking member Patrick Leahy, D-Vt., and Rep. Peter Welch, D-Vt. -- worry about radio interoperability and communications in the northeast corner of the state. They wrote to FCC Chairman Tom Wheeler in November, and he explained the agency’s position on the town of St. Johnsbury, which had applied for a 100-watt license and received one for only 40. “It appears that your constituents in the Town of St. Johnsbury did not file the proper documentation to justify operating at power levels exceeding the limits currently set forth in our rules,” Wheeler replied in a March 14 letter, released this week. “Because I understand the importance of this issue to you, I encourage your constituents in St. Johnsbury to contact staff in the Commission's Public Safety and Homeland Security Bureau if they need further assistance in this matter.” The town didn’t file an engineering analysis, Wheeler said. “Unfortunately, St. Johnsbury is outside the period for seeking timely reconsideration of the Bureau's decision,” he added. “However, St. Johnsbury is not precluded from filing a new application to operate a repeater on Burke Mountain. … The new application will also need to go through cross-border coordination with Canada.”
Nexstar’s proposed deal to buy Media General would create an overly large broadcaster with too much power in retransmission consent negotiations and disregards FCC rules for joint sales agreements, said petitions against the transaction filed in docket 16-57 by several public interest groups, the American Cable Association, Dish Network, ITTA and Cox Communications. The public interest groups’ petition is framed as a petition to deny the proposed sale. ACA, Dish and ITTA is styled as a petition “to deny or impose conditions” and the Cox filing is a “petition for conditions.”
Data localization and other constraints on data flows would have negative impacts on the global digital economy and would increase security risks, consequences that need to be addressed, said the Business and Industry Advisory Committee (BIAC) to the Organization for Economic Cooperation and Development (OECD) in a paper released Monday. It said cross-border data flows will accelerate as roughly 10.2 billion IoT devices come online over the next five years, resulting in nearly 4 billion people -- more than half the world's population -- connected to the Internet. But "forced localization policies" in the manufacturing and services sector "are a disproportionate response and more trade restrictive than necessary" and would reduce global trade by $93 billion annually, the paper said. "Limiting data movement will increase costs, reduce the business competitiveness across the globe and fragment the internet." Companies can work with governments to take "reasonable steps" to protect personal data, with governments providing a "proportionate response" through laws and regulations that strike a balance between fundamental individual rights and cross-border data flow, the paper said. BIAC issued a half dozen recommendations to OECD such as collecting more evidence about the impact of forced localization and other measures on cross-border data flows, documenting the impact of localization policies on trade and investment, and providing guidance on how governments can enforce existing trade rules against the proliferation of data localization.
House Commerce Committee Republicans advanced the No Rate Regulation of Broadband Internet Access Act (HR-2666) Tuesday on a 29-19 partisan basis, with Democrats lamenting a broken and messy negotiation process. The dissent was expected (see 1603140069) and hounded the legislation since Communications Subcommittee Chairman Greg Walden, R-Ore., took it up early this year. Rep. Adam Kinzinger, R-Ill., introduced the bill last year to prevent the FCC from regulating broadband rates after its net neutrality order.
AT&T said FCC Lifeline USF modernization efforts seem "to be moving in the right direction" but will depend on the details. AT&T welcomed an FCC draft order's plan for a national entity to verify consumer eligibility for the low-income support program, which would be extended to cover broadband service (see 1603080054). The proposal to take eligibility out of the hands of Lifeline providers "has the potential to be a transformative change if properly implemented," said AT&T Senior Executive Vice President Jim Cicconi in a Monday blog post. "It could close the door on provider-initiated eligibility fraud and help re-focus the program on the consumers it was intended to serve." Cicconi said it's not clear how long it would take before Lifeline providers can stop performing the functions and whether the national eligibility verifier would take over other administrative functions providers currently perform. "Our fingers will remain crossed until we see all the details, and we may not uncross until we get further down the road to implementation. But Chairman [Tom] Wheeler and Commissioner [Mignon] Clyburn should be commended for championing this approach," he said. Cicconi said AT&T also appreciated the FCC's acknowledgement that existing Lifeline rules impose costs and burdens that discourage provider participation. He was disappointed, however, the FCC didn't propose to eliminate "eligible telecom carrier" requirements for Lifeline providers. He added, "It is also hard to imagine how the Commission can justify phasing out Lifeline support for standalone wireless voice but continue to support standalone wireline voice. Lifeline consumers overwhelmingly choose wireless voice over wireline. If any voice support is to be phased out it should be a technology neutral phase-out of support for all standalone voice. "In a filing Monday in docket 11-42 summarizing a meeting with aides to Wheeler, NCTA lauded the FCC proposal to create a streamlined national ETC process for designating Lifeline broadband providers.
A proposal by ISPs on privacy rules included groups representing nearly all ISPs (see 1603010069) except wireless ISPs, said Robert Quinn, AT&T senior vice president-federal, in a blog post Wednesday. FTC oversight has worked well, Quinn said. “All major ISPs have enacted privacy policies which explain to consumers the information that ISPs collect and how that data is used,” he said. “At AT&T, we’ve continued to simplify our policy, including several years ago when we went to a single comprehensive privacy policy that describes plainly and simply the information we collect, how we collect it and how we use it.” Quinn said he was AT&T chief privacy officer for several years and can say firsthand “we take customer privacy and how we communicate our polices to our customers seriously.” But some groups are pushing for much stricter rules than ISPs have faced in the past (see 1603070049), Quinn said. “To get there, those groups have characterized ISPs as ‘gatekeepers,’ asserted that ISPs (as opposed to companies like Google) are the real leaders of targeted advertising and, finally, argued that the Federal Trade Commission is, in essence, incompetent at policing privacy given the tools they have available.” Those arguments aren't supported by the facts, he said, though he warned the FCC may be listening. “Time and time again, the FCC appears to want to place its thumb on the scale in favor of Internet companies and against the companies that invest in broadband infrastructure in this country,” he wrote. “Last year, it was the Title II proceeding. Last month, we were talking about set-top boxes, this month it’s privacy, next month it could be special access.” The FCC did not comment. "I’ve characterized ISPs as ‘gatekeepers’ because that is what they are,” said John Simpson, Consumer Watchdog privacy project director, responding to Quinn. “Edge providers like Google and Facebook do pose serious privacy concerns, but that is no justification for not dealing with the privacy issues raised by ISPs and their unique position. That is what the FCC is legally bound to do now that broadband providers are classified as common carriers.” The FTC has tried to protect consumers' privacy, “but because it doesn’t have rulemaking authority in this area and can only move against ‘unfair and deceptive’ acts, its powers are limited,” Simpson said. “The phone and cable ISP industry is totally disingenuous claiming that the use of privacy policies is an effective way to protect consumers,” said Center for Digital Democracy Executive Director Jeffrey Chester. “These companies are engaged in significant cross device tracking and targeting using their advantage over subscriber information. They are expanding their work with data brokers, acquiring powerful consumer data assets, and are engaged in practices that threaten the privacy of their customers. The FCC has to step in before these broadband giants further invade our privacy.”