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March 2016

News from the FCC Oversight Hearing

The Senate Commerce Committee convened a Federal Communications Commission oversight hearing including each of the five FCC commissioners. A good time was had by all.

In his opening statement Committee Chairman John Thune (R-SD) noted that the FCC has not been reauthorized by Congress in 25 years “making it the oldest expired authorization within the Commerce Committee’s expansive jurisdiction.” He announced that he will introduce the FCC Reauthorization Act of 2016, and he intends for the committee to mark up the bill in the coming weeks.

Chairman Thune also noted his support for current FCC Commissioner Jessica Rosenworcel who has been nominated for a new term on the FCC. The Hill reports that there are multiple holds on the renomination. Asked about who placed the holds Chairman Thune said, "I have an idea, there are a couple of them, but I probably, that's kind of one of those things you're not supposed to know. I think that my staff probably knows but I'm not certain, so I don't want to throw anybody under the bus." He said that disagreement with the FCC's net neutrality order might be "one issue" holding up her nomination, but he noted that there were many issues pending before the FCC that some lawmakers might take issue with. Chairman Thune also said that if FCC Chairman Tom Wheeler publicly committed to leaving his post in January (he declined to do so at the hearing), it could loosen some of the holds on her nomination.

Ranking Member Bill Nelson said, “We need Commissioner Rosenworcel re-confirmed to the commission as soon as possible. At the end of the 113th Congress, we had one Republican FCC Commissioner – Mike O’Rielly – awaiting confirmation. Democrats agreed to confirm O’Rielly’s nomination without pairing him with any other nominee in exchange for a promise that Republicans would confirm Democrat Jessica Rosenworcel quickly in the new Congress. Senators McConnell promised Senator Reid and then-Chairman Rockefeller that they would move the Rosenworcel nomination without delay in the new Congress if Democrats agreed to move Commissioner O’Rielly’s nomination. Commissioner Rosenworcel’s nomination is now on the executive calendar. Chairman Thune, I know you are working with Leader McConnell to make this happen. We do not want lose her leadership and thoughtful approach to the crucial issues the FCC is facing.”

A disagreement between FCC Chairman Tom Wheeler and Commissioner Ajit Pai over network neutrality become heated. A question from Sen. Ron Johnson (R-WI) over whether the rules had hurt investments in Internet networks sparked a testy exchange. Commissioner Pai claimed that investment slowed down in 2015 for major broadband providers and smaller ISPs. But Chairman Wheeler directly contested that claim. “With all due respect to my colleague, what he has just portrayed as facts are not,” Wheeler responded. “Investment is up... fiber is up 13 percent over last year. Usage of the Internet is up and that has driven what you want to be up, which is increased revenue per subscriber for the Internet companies in the last year since the Open Internet Order took place.” Pai continued to criticize the FCC's broadband policies. “It’s no accident the regulatory infrastructure we have built is now depressing broadband investment," Pai told the committee. But Wheeler insisted that was not true. “We are not seeing a decline in broadband infrastructure investment," he responded. “You can say it and say it and say it but it doesn’t make it a fact.”

Chairman Wheeler also vigorously defended the process by which the FCC reached its decision to reclassify Internet access as a Title II common carrier service. Sen Johnson asked Wheeler whether he was aware of some of the staff's concerns about a "thin record" for supporting the Title II move, which was detailed in the report. Chairman Wheeler said he hoped the lawyers were "constantly second-guessing each other and me." He said there was fulsome debate and discussion. Asked why he had prepared a public notice to beef up the record, but did not pull the trigger, Wheeler said that the FCC had hit pause for the purpose of "enriching the record," and that was because the FCC knew "the Big Dogs are going to sue" and wanted to make sure "all the i's were dotted and the t's crossed." Wheeler said the FCC had not circumvented the ex parte notification requirement about communications with White House staffers. He conceded there had been meetings and e-mails, but said that the only time an ex parte was required was when there was "substantial significance" that was intended to affect the outcome of the decision. Sen Johnson said that the FCC turned on a dime after the President came out in favor of Title II, so they appeared to be significant conversations. Wheeler pointed out the White House had filed an ex parte in connection with the President's statement. During his questioning, Sen Ed Markey (D-MA) followed up, giving Wheeler a chance to point out that communications between the White House and independent agencies are not unusual—"the White House, Congress, and everybody," Wheeler said—and that, in fact, other Presidents have been known to contact FCC chairs, pointing to a meeting between former FCC Chairman Mark Fowler and President Ronald Reagan.

Additional news from the hearing:
Chairman Wheeler signaled that the FCC's proposal on applying oversight to broadband consumer privacy could come as early as this month (March 2016).
Chairman Wheeler said that operators' programming stream will remain protected under a new proposal concerning set-top boxes.
Wheeler said the FCC would make "special efforts" to accommodate any LPTVs displaced in the coming repacking of TV stations after the incentive auctions.
Statement (Chairman Thune)

Reaching our wireless potential

[Commentary] Whether we are using a data plan on licensed spectrum or accessing the web through Wi-Fi in unlicensed bands, we’ve all experienced the frustration of a slower connection. That is because the airwaves are overcrowded. In fact, Apple and Cisco recently released reports that found the 2.4 GHz Wi-Fi band to be overloaded and no longer considered suitable for mission critical communications. Solving this problem isn’t easy. We can’t simply create more spectrum, but technology can help us maximize its utilization.

In the weeks ahead, the Senate Commerce Committee has an opportunity to advance a strategy that will ensure this public resource can reach its full potential. In order to do that, this legislation must include an aggressive proposal that will help us find ways to improve spectrum efficiency and make more capacity available for both licensed and unlicensed uses, like Wi-Fi. Legislation that will make more licensed spectrum available and facilitate deployment of supporting infrastructure is essential because it will give wireless providers the certainty they need to further develop their networks and offer innovative services to more customers. Legislation can also help us maintain our international leadership in wireless communication by providing a stable regulatory environment that will foster next generation technologies such as 5G. But while much attention focuses on how to make new frequencies available for licensed use, we need a clear plan to support the continued innovation in unlicensed bands. Our experience with Wi-Fi in unlicensed bands is the best example of the opportunity ahead.

CLIC Supports the Principle of "One Touch"

Some troubling news affecting local Internet choice arrived from Louisville (KY) — AT&T has sued the City of Louisville for enacting an ordinance that sought to reduce costs and delays during the process of readying utility poles for new attachments by competitive fiber builders. What Louisville sought to do was to introduce a program known as “one-touch” to streamline make-ready work in situations in which the relocation work will not entail a cutting of lines or interruption of existing services. Under “one-touch,” a single entity makes all of the moves on the poles. That entity must be well-qualified to do the work under applicable industry standards and certification requirements.

Compare the scenarios: In the old way of doing things that AT&T seeks to preserve, three, four, five, or more crews, in three, four, five, or more trucks, take care of make-ready on three, four, five, or more occasions. Under the city’s new “one-touch” approach, one highly qualified crew takes care of all make-ready for a given pole in a single truck-roll. We can’t speak to the legal issues involved or the particulars of the Louisville litigation, but, from a policy perspective, we are disappointed in AT&T’s opposition to “one-touch.” This opposition is particularly ironic because AT&T, in rolling out its own fiber network and services, would itself benefit from “one-touch” in many cases. As advocates for local choice in Internet and broadband, we support and encourage collaborative, common sense efforts among stakeholders, including “one-touch” programs.

Idea to Retire: Internet without policy metrics

[Commentary] Shortly after the Internet started as a node-neutral network of military computers, there were organizations dedicated to measuring network performance. One longstanding body doing this is the Center for Applied Internet Data Analysis (CAIDA) at the University of California, San Diego. Their efforts have been focused on collecting data from public nodes and information provided voluntarily by organizations with similar goals around the world. They have provided measurements of tremendous value to those concerned with tracking the growth and structure of the Internet. However, those measures do not tell us enough about the Internet, especially with regards to its enormous economic and strategic significance in the first two decades of the twenty-first century.

Since the mid-2000s, Internet exchanges, content delivery networks, and transit contracts undertaken by telecommunications operators have come to define the form of the Internet. The complex relationships between companies such as Google, Akamai, Facebook, Amazon, Netflix, and telecommunications companies bring together at times divergent interests that piece together the critical components for network operation. A simple table of metrics is needed that would allow anyone in the Internet-telecom sector to have a general sense of what is critical, growing, and changing. These requirements should not be dismissed because of company or governmental sensitivities. In the pharmaceuticals sector, companies hold many secrets but it is still possible to know the price of a medicine. In the automotive manufacturing sector it is possible to know the basic cost of a component, along with its input costs and output pricing. Unless we can devise appropriate means to measure, monitor and assess the Internet we put at risk many of the economic and public policy goals that we aspire to.

[Dr. Silvia Elaluf-Calderwood is a research fellow Oxford Brookes and ex-LSE, and holds wide experience in the telecommunications industry in the UK and the Netherlands. Jonathan Liebenau is a reader in technology management in the Department of Management at the London School of Economics.]

New America
Tuesday, March 15, 2016
10:00 AM – 12:00 PM EST
https://newamerica.cvent.com/events/protecting-broadband-privacy/registr...

One year after the FCC's historic decision to reclassify broadband as a common carrier service under Title II of the Communications Act, OTI hosts a panel discussing the privacy implications of Title II reclassification.

In the last decade, what changes came about that drove millions of Americans to ask the FCC to regulate broadband providers as common carriers? How are common carriers different from other kinds of companies, legally and practically, and what does common carrier status mean for broadband providers' privacy implications? How has the FCC regulated the privacy obligations of phone carriers in the past, and how is it likely to regulate the privacy obligations of broadband providers moving forward?

Our panel of legal, policy, and technical experts will explore these questions and more.

Keynote Remarks:
Ruth Milkman Chief of Staff, FCC

Panel Participants:
Jeff Brueggeman
VP, Global Public Policy, AT&T

Laura Moy
Visiting Assistant Professor Law, Georgetown University
Program Fellow, New America's Open Technology Institute

Matthew Wood
Policy Director, Free Press

Harlan Yu
Principal, Upturn

Nancy Libin
Partner, Jenner & Block


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