Amir Nasr

Confirmation prospects for Democratic Commissioner Jessica Rosenworcel of the Federal Communications Commission, who’s awaiting a Senate vote for a second term, aren’t dead yet, apparently. “I’ve felt for some time we were gonna get that resolved, I still hope that we will,” Senate Commerce Committee Chairman John Thune (R-SD) said. Earlier, he told reporters who were asking about Commissioner Rosenworcel,”It’s a leader decision about when that would come to the floor. …But you know we’re in a whole new world now. We’re going to have a new FCC starting next year.”

The prospect of a Trump Administration complicates pending confirmations, but not necessarily in a bad way for Commissioner Rosenworcel. “Now that we’ve got a new administration, we’ll have a new FCC. They’ll be looking at how and when to proceed with her nomination,” Chairman Thune said. Democratic lawmakers say Commissioner Rosenworcel is owed a confirmation vote based on a promise from Senate Majority Leader Mitch McConnell (R-KY). In December 2014, he promised Senate Democrats that if they voted to confirm Republican FCC Commissioner Michael O’Rielly, the GOP would in turn move quickly to confirm Commissioner Rosenworcel at the beginning of the 114th Congress in 2015. That hasn’t happened.

CTIA - The Wireless Association called on the Federal Communications Commission to permanently exempt small businesses from transparency rules included in the agency’s 2015 network neutrality rules, with the current exemption scheduled to expire on Dec. 15.

“The enhanced transparency rules are unnecessary and unduly burdensome for all broadband providers, and particularly burdensome for smaller providers, many of which lack the monetary and/or staff resources to comply with complex disclosure requirements that will not provide any benefit to smaller providers’ customers,” wrote Krista L. Witanowski, assistant vice president of regulatory affairs at CTIA, in a filing with the FCC. “CTIA urges the Commission to permanently exempt small businesses from the enhanced transparency requirements and adopt a more realistic definition of the small business entities to which the exemption would apply.” The Washington-based organization represents companies such as AT&T and Verizon.

The Federal Communications Commission is expected to pass privacy rules. Once approved, the rules would require explicit consent from customers before companies can use many forms of data for marketing purposes. The agency is permitted to regulate internet service providers as it does phone companies as a result of a 2015 network neutrality rule that reclassified ISPs as common carriers.

While the net neutrality rule gives the regulator solid legal standing to issue rules for ISPs, industry giants such as AT&T have argued that the privacy rules still might not align with the FCC’s authority to regulate privacy under the 1996 Telecommunications Act. If broadband providers decide to sue, that argument will likely be the one that they use, an industry source said. The law prohibits phone carries from using a customer’s “proprietary” information, which includes the location, time, date, duration of phone calls, the type of network a consumer subscribes to, as well as any other information that a provider could obtain from a customer’s phone bill. In a regulatory filing with the FCC, AT&T argued data such as web browsing and app usage can’t be proprietary if other web entities have access to it.

The Federal Communications Commission’s plan to designate web browsing and app usage as “sensitive” has privacy advocates cheering and the industry rushing to lobby the agency to tweak the final rule ahead of next week’s vote. Sen Ed Markey (D-MA), a privacy advocate, told reporters that “every click Americans make online paints a detailed picture of their lives. … Consumers should have the power to stop ISPs from collecting and using their browsing information, app usage data and other sensitive information without their express consent.”

Opponents argue that the FCC should avoid adding new categories to the existing Federal Trade Commission definition of “sensitive” data. “The proposal to include web browsing and apps usage data as sensitive information would be especially counterproductive,” the industry officials said in their filing. They added that consumers “benefit” from online advertising and personalized content that the use of web browsing history and apps usage information allows. On the other side of the debate, advocacy groups including Public Knowledge and the Center for Democracy and Technology met with FCC Commissioner Mignon Clyburn’s office to urge the agency to make the definition of sensitive data “as expansive as possible,” according to a filing.

Privacy advocates are hitting hard at the government process that likely led Yahoo Inc. to create software and scan all of its users’ incoming e-mails on behalf of US intelligence agencies. The reaction was immediate to a report that said a classified government order directed the Internet company to scan hundreds of millions of Yahoo Mail accounts searching for a specific “set of characters.” Advocates agree that many questions remain unanswered about the case.

Still, the Washington (DC) backlash coalesces around a foreign surveillance law, set to expire at the end of 2017, that privacy-minded lawmakers want to change. Privacy advocates are zeroing in on a controversial provision of the 2008 Foreign Intelligence Surveillance Amendments Act as the likely avenue that brought forth the government order. Provisions in the law allow US intelligence officials to request consumer data from phone and Internet firms to spy on targets believed to be outside the US. Even before the Yahoo report, lawmakers and civil liberties advocates were pushing for changes to that provision, Section 702. They say US intelligence agencies abuse it, conducting mass surveillance on Americans that shouldn’t be targeted in the first place. In the wake of the Yahoo news, these advocates say the administration now has a duty at least to tell people if it is conducting mass searches.

Federal Communications Commission Chairman Tom Wheeler has an ambitious agenda ahead of him as the agency eyes rules in three telecommunications areas that face staunch opposition from large factions of the private sector. Chairman Wheeler wants the FCC to set price caps on business data services, open the cable set-top box marketplace, and implement privacy regulations on Internet service providers. He told reporters he aims to complete all those items before the end of the year. The stars will have to align perfectly for this to happen.

David Edelman, special assistant to the president for economic and technology policy at the National Economic Council, said technology areas like cybersecurity, privacy, and network neutrality are winners in the international community.

Edelman said that the core principles behind the net neutrality rules — ones that some industry lobbyists and Republicans fought so vehemently in the United States — were widely adopted in other major economies. “Something was happening under our noses that I think wasn’t truly recognized in an international forum until this G20 [summit],” Edelman said. “The vast majority of G20 economies already had open internet protection on the books.” Republicans and some industry executives say the rules are an overreach that will squelch broadband innovation. Edelman disagrees. “As it turns out, the principles that were so controversial domestically were ones that had surprising international consensus,” he said, noting that Brazil, India and the European Union were all in the process of drafting open internet rules as policymakers in the United States debated the validity of the rules put forward by the Federal Communications Commission. “This is a remarkable evolution in a debate that reflected and became a part of the global consensus, certainly well before any would have said the issue is resolved domestically,” he added. The issue of privacy also reflects an area where, despite differences, the U.S. has been able to strike key agreements with allies because of domestic policy, Edelman said.

The Federal Communications Commission’s proposed privacy rules for Internet service providers have ruffled the feathers in the tech industry since the agency passed the proposal in March. A key question as the agency moves forward to a final rule will be how the FCC’s entrance into privacy rules would interfere (or coexist) with the regime currently enforced by the Federal Trade Commission.

The details will come into focus in the coming weeks, as FCC Chairman Tom Wheeler wants to finalize the proposal by the end of 2016. “It’s a turf war. Let’s be honest. It’s a turf war,” said Tim Sparapani, senior policy counsel at CALinnovates, a technology advocacy coalition. “We really need a do-over.” Sparapani was speaking at a privacy briefing Tuesday sponsored by CALinnovates. Just hours earlier in the same building on Capitol Hill, all three commissioners of the FTC testified before the Senate Commerce Committee. They offered a lukewarm endorsement of the FCC’s privacy endeavors. “In our initial bipartisan comment to the FCC, we were very supportive of their proposed rule in this area,” FTC Commissioner Terrell McSweeny said at the hearing. “We do believe that like the FTC, the FCC shares our goals of transparency, consumer choice, and security and that they have an important role to play in protecting consumer privacy.” Sparapani said the FCC is only confusing matters. “As communications services continue to evolve, and these kinds of companies begin to merge more and more across traditional silos of industry, none of this is going to make any sense,” he said.

A tangled mess of two stalled telecommunication bills and the pending nomination of a well-liked tech regulator won’t be resolved until a lame-duck session of Congress, if at all, a top Senate Republican said. At issue is the confirmation of Commissioner Jessica Rosenworcel of the Federal Communications Commission, a Democrat, for a second term at the agency. If the Senate doesn’t vote before the end of 2016, she’s out. Her term will be up, and there will be no way to extend her tenure, even though she is highly regarded by both Republicans and Democrats.

The standoff over Rosenworcel in the Senate, with several Republican objections to her nomination, has also tied up a bill to strengthen spectrum allocation and a long-overdue measure to reauthorize the FCC. “I don’t think this happens before Nov 8th, but I think when we get back in a lame-duck, I hope that we can bust some things loose and perhaps one of those will be the nomination,” Senate Commerce Committee Chairman John Thune (R-SD) said after a lengthy oversight hearing on the FCC. Democratic lawmaekrs say that in Dec 2014, then-Minority Leader Mitch McConnell (R-KY), promised Senate Democrats that if they voted to confirm Republican FCC Commissioner Michael O’Rielly, the GOP would move swiftly to confirm Rosenworcel at the start of the 114th Congress in January 2015. That’s also when McConnell became majority leader. The Senate Commerce Committee approved her renomination in December, but the floor vote to confirm Rosenworcel has yet to come because of a few GOP objections. Senate Minority Leader Harry Reid (D-NV), has blocked two telecom measures reported out of Senate Commerce, both with strong bipartisan support, in retaliation for McConnell’s unwillingness to force the nomination through. Chairman Thune suggested recently that if FCC Chairman Tom Wheeler were to step down following the November elections, it could help free up Rosenworcel’s confirmation vote.

Senate Commerce Committee Chairman John Thune (R-SD) said he “expects” language that would halt the transition of an Internet governing body away from US government control to make it into the upcoming continuing resolution (CR) to fund the federal government. “Right now they’re trying to work out what that would look like, what would be effective in terms of putting the brakes on this,” he said. “I don’t think that anybody feels that we’re ready yet for that transition to take place, and so the question is how do you make that happen?”

Chairman Thune said that he expects the planned transition of the Internet Assigned Numbers Authority to be one of several issues that could push negotiations with Democratic Sens over the CR into next week. Meanwhile, the squabble over whether the US should follow through on the transition heated up Sept 13 as a report from the Government Accountability Office found that the upcoming transfer of power wouldn’t violate constitutional law.