Telecom Policy Potpourri

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Robbie’s Round-Up for the Week of April 25-29, 2016

It was a busy week for telecommunications policy. The Federal Communications Commission held its April Open Meeting, and numerous pieces of legislation moved along in Congress, including the E-mail Privacy Act. Below, we take a sampling of this week’s telecom policy potpourri.

FCC Open Meeting
FCC Considers New Competition Framework for Business Data Services
At its April 28 open meeting, the FCC released a request for public comment on the “Business Data Services Market” (also known as the "Special Access market"), composed of Internet “special access” lines used by some businesses. These high-capacity connections can be used for ATMs or to connect a cell tower to its network. New entrant telecommunications companies say the market is unfair, and that incumbent carriers (like Verizon, AT&T, CenturyLink, and Frontier) have too much control. And, since the marketplace is changing with cable companies entering and the market experiencing more transition to Internet Protocol (IP)-based technologies, Chairman Wheeler wanted more pro-competitive and “technology-neutral” regulations.

Not surprisingly, cable operators aren’t particularly pleased with being in the FCC’s rate regulation sights. The National Cable & Telecommunications Association called Wheeler’s technology-neutral approach “off base”.

The proposal now under consideration is based on four principles:

  1. Competition is best, but where competition does not exist, market conditions must not be allowed to stifle the ability of business customers to innovate and compete.
  2. Technological neutrality should be at the core of any new regulatory framework.
  3. Policies should remove barriers to the transition to new technologies.
  4. Rules should be crafted to meet the needs of both today’s and tomorrow’s marketplace.

FCC Adopts Real-Time Text Proposal
The FCC also took a step towards making it easier for deaf, hard of hearing, speech-disabled and deaf-blind people to communicate with people over the phone. The proposal seeks comment on requiring large carriers' wireless phone networks to recognize real-time text starting December 2017.

People with disabilities now often use a special device, known as a teletypewriter, or TTY, to send messages back and forth over wireless and landline phones. That system only works if the people on both ends have a teletypewriter. To receive or relay messages without one, a person would need to dial 711 to get a third-party relay service on the line.

Real-time text, however, would allow people to send and receive messages as they are being relayed without a separate device or translator on the line. Unlike traditional text messaging, the sender would never have to hit “send.” As the FCC notes, “In this manner, the person receiving the text can read what the person creating the text is saying as soon as he or she creates it – thus fostering a conversational rhythm to the interaction, much as one person speaking can still hear the other person even if they talk over each other. By not requiring users to hit ‘send’, 911 call center personnel, for example, will be able to receive even incomplete messages.”

FCC Puts Final Rules in Place for New Citizens Broadband Radio Service
The Federal Communications Commission reaffirmed its decision to create the innovative Citizens Broadband Radio Service in the 3550-3700 MHz (3.5 GHz) band, and took additional steps to finalize the rules. The Order will make 150 MHz available for commercial and unlicensed use and create an innovative spectrum sharing regime for the 3.5 GHz band.

Phillip Berenbroick, Government Affairs Counsel at Public Knowledge, said, “The rules will make 150 MHz of additional spectrum available for mobile broadband use, while also allowing for contemporaneous, non-interfering unlicensed use of the band. Federal users will continue to operate in the 3.5 GHz band, mobile network operators will be able to offer licensed wireless services in the band, and unlicensed operations will be permitted on unused frequencies and on a non-interfering basis where federal or licensed users are present.”

Congressional Action

House Unanimously Passes E-mail Privacy Act
The House unanimously passed an e-mail privacy bill that the technology industry and advocates pushed for years. The Email Privacy Act (H.R. 699) had the most public backers of any bill in Congress, and it passed 419-0. The bill closes off a loophole in the 1986 Electronic Communications Privacy Act to ensure that law enforcement gets a warrant before forcing technology companies to hand over customers' e-mails or other electronic communications, no matter how old they are. Though the outdated provision is no longer used by most agencies, the law technically allows law enforcement to use a subpoena — rather than a warrant — to get e-mails if they are more than 180 days old.

“The level of bipartisan support for this bill is a reflection of public’s strong belief that the government must respect and protect privacy rights in the digital age," said Neema Singh Guliani, American Civil Liberties Union legislative counsel. "Now it’s the Senate’s turn to pass this important bill and strengthen it by including a requirement that the government inform people when it forces companies to turn over their information.”

Senate Commerce Committee Approves FCC Reauthorization and Reform Bills
The Senate Commerce Committee approved three bills of note this week.

  1. The FCC Reauthorization Act of 2016 (S 2644) Sponsor: Sen John Thune (R-SD).
    • This bill reauthorizes the Federal Communications Commission (FCC) for FY2017-FY2018.
    • It designates amounts for the FCC to move to a new facility or reconfigure its existing facility.
    • A cap is placed on the amount of proceeds from the FCC's spectrum license competitive bidding system that the FCC may retain for the development and implementation of such system instead of being deposited in the Treasury.
    • The bill allows a person chosen to fill a commissioner's vacancy on the FCC to continue to serve after the expiration of the fixed term of the commissioner that the person succeeds until a successor has taken office. But the person filling the vacancy may not continue to serve after the session of Congress that begins after the expiration of the fixed term of the commissioner that the person succeeds.
    • The FCC must submit concurrently to Congress a copy of any budget estimates, requests, or legislative recommendations that it submits to the President or the Office of Management and Budget. No U.S. officer or agency may require the FCC to obtain that officer's or agency's approval before the FCC submits legislative recommendations to Congress.
    • The Government Accountability Office must recommend adjustments to the FCC's regulatory fee structure.
    • The Universal Service Antideficiency Temporary Suspension Act is amended to extend through FY2018 provisions rendering the Antideficiency Act inapplicable to: (1) amounts collected or received as universal service contributions, or (2) expenditures or obligations of such contributions.
    • Any deposits that the FCC may require for the qualification of bidders in a system of competitive bidding for spectrum licenses must be deposited directly in the Treasury instead of in an interest bearing account at a financial institution. The bill removes a provision that requires the interest accrued to such a financial institution account to be dedicated for the sole purpose of deficit reduction. The deposits of successful bidders must be credited to the deposit fund of the Treasury, unless existing exceptions apply.
    • The FCC is prohibited from changing its regulations for universal service support payments to implement the February 27, 2004, recommendations of the Federal-State Joint Board on Universal Service regarding single connection or primary line restrictions on universal service support payments.
  2. Federal Communications Commission Process Reform Act of 2015 (S 421), Sponsors: Sens Dean Heller (R-NV), Steve Daines (R-MT), approved with roll call vote of 13-11. The bill:
  • Amends the Communications Act of 1934 to require the Federal Communications Commission (FCC) to establish procedural rules concerning: (1) public notices for rulemakings, petitions, and applications; (2) minimum periods for comments and replies; (3) FCC Commissioners' deliberations; and (4) the FCC reports, decisions, budgets, and other agency documents to be made publicly available in the Federal Register or on the FCC's website.
  • Requires the specific language of proposed rules or amendments to be: (1) included in proposed rulemaking notices, and (2) published for at least 21 days before a vote.
  • Directs the FCC to adopt rules requiring: (1) performance measures to be included in new rulemaking notices that create or propose, or notices regarding substantial change to, a program activity listed in the program and financing schedules of the U.S. annual budget, including any annual collections or distributions of $100 million or more; and (2) a cost-benefit justification to be included in notices concerning rules that may have an effect on the economy of at least $100 million annually or a material adverse effect on the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities.
  • Directs the FCC to establish procedures authorizing a Commissioner to require the entire Commission to vote on whether to review a particular FCC office's actions.
  • Directs the FCC to seek public comment regarding whether the FCC should: (1) establish deadlines for the disposition of certain license applications; (2) assess fees from applicants to enhance the FCC's resources to meet those deadlines; and (3) publish orders, decisions, reports, and actions within 30 days after adoption.
  • Requires the FCC to initiate a new rulemaking proceeding every five years to continue its consideration of procedural rule changes.
  • Authorizes a bipartisan majority of Commissioners to hold a nonpublic meeting under specified conditions.
  • Prohibits the FCC, in its quarterly report regarding informal consumer inquiries and complaints, from categorizing inquiries or complaints under the Telephone Consumer Protection Act of 1991 (places restrictions on telephone solicitations and automatic dialing systems) as wireline or wireless inquiries or complaints unless a wireline or wireless carrier was the subject of the inquiry or complaint.
  • Developing Innovation and Growing the Internet of Things (DIGIT) Act (S 2607), Sponsors: Sens Deb Fischer (R-NE), Kelly Ayotte (R-NH), Cory Booker (D-NJ), Brian Schatz (D-HI)
    • This bill requires the Department of Commerce to convene a working group of federal stakeholders to provide recommendations to Congress on how to plan for and encourage the proliferation of the Internet of Things (IoT) in the United States for the growing number of connected and interconnected devices.
    • The working group must consult with nongovernmental stakeholders, including industry experts, technology manufacturers, businesses, and consumer groups.
    • The bill expresses the sense of Congress that IoT policies should maximize the potential and development of the IoT to benefit businesses, governments, and consumers.
    • Within one year after enactment of this Act: (1) the working group must submit a report regarding IoT spectrum needs, regulations, federal grant practices, budgetary challenges, consumer protections, privacy and security, and the current use of the technology by federal agencies and their preparedness to adopt it in the future; and (2) the Federal Communications Commission must submit recommendations concerning the IoT's current and future spectrum needs, the role of licensed and unlicensed spectrum, and any regulatory barriers.

    Some Decisions Made -- and Pending -- on the Charter-Time Warner Cable Merger
    The Department of Justice announced it was allowing Charter’s acquisition of Time Warner Cable and Bright House Networks, forming the new merged company “New Charter”. FCC Chairman Tom Wheeler also released a statement with numerous conditions to create a more competitive and universal broadband marketplace. Benton will continue to cover the story, particularly how it pertains to ensuring more Americans have access to affordable broadband. To be kept up-to-date on the stories, be sure to subscribe our Headlines service.

    Quick Bits

    Weekend Reads (resist tl;dr)

    Events Calendar for the Week of May 2-6, 2016

    ICYMI From Benton
    benton logoConnecting Anchor Institutions: A Vision of Our Future (SHLB Coalition paper published by the Benton Foundation)
    benton logoWhat a Difference a Year Makes, Adrianne Furniss
    benton logoLibraries Support Lifeline as Important Step on the Path to Digital Equity, Anthony Marx, New York Public Library, R. Crosby Kemper III, Kansas City Public Library

    'Til next week, we'll see you in the Headlines.

    By Robbie McBeath.