Reporting

The Federal Communications Commission is standing with the Federal Trade Commission when it comes to a federal court decision that leaves a potential regulatory gap for broadband regulation, in the process taking a shot at AT&T. The US Court of Appeals for the Ninth Circuit in May agreed to an en banc (full court) review of its three-judge panel decision that left the Federal Trade Commission's authority to oversee edge-provider's protections of privacy in some circumstances very much in doubt. The court also said that in the interim that panel decision was not to be cited as precedent of the Ninth Circuit.

Such en banc review is unusual, but the decision had prompted a lot of attention given that potential online privacy impact. The three-judge panel, in overturning the FTC's action against AT&T for throttling the speeds of unlimited data customers, last August ruled that the regulatory exemption that prevents the FTC from regulating common carriers is not "activity-based," confined to common carrier "activity" by an entity that has the status of a common carrier, but is status-based, extending to noncommon carrier activity by that entity as well. That meant that if Verizon, a common carrier, bought Yahoo!, an edge provider, the FTC could not enforce Yahoo! privacy policies, and the FCC could not either because it does not regulate edge providers, leaving a potential privacy gap.

Cable operator Internet service providers have been pushing hard against an opt-in regime for sharing user data with third parties, but there is another opt-in regime they are concerned about avoiding. In a phone call with the office of Commissioner Mignon Clyburn of the Federal Communications Commission, NCTA–The Internet & Television Association VP and deputy general counsel Diane Burstein argued against applying that regime to how broadband operators provide required notifications to their customers.

The FCC signaled it would be voting on a request for declaratory ruling by NCTA and the American Cable Association that they be allowed to e-mail those notifications rather than have to send out paper. FCC Chairman Ajit Pai has signaled support for that ruling, so it is expected to pass, but how it is implemented is also important to ISPs. Burstein told Commissioner Clyburn staffers that though operators would continue to offer paper notices to customers who wanted them, the default should be electronic unless a subscriber opts out and chooses paper.

The DC Circuit Court of Appeals put on hold the Federal Communications Commission’s plans to restore a key media ownership rule that allowed major station groups to expand through mergers and acquisitions. The ruling could prove to be a roadblock to Sinclair Broadcast Group’s pending $3.9 billion acquisition of Tribune Media TV stations.

The court issued a stay to the FCC’s decision in April to restore the so-called UHF discount, which has allowed major media companies to exceed restrictions on the number of stations that they can own. The court said that the stay will give them an opportunity to review the merits of the case. Apparently, the temporary stay granted on June 1 extends through June 7, and the real test will come next week after the review is completed by a three-judge panel.

Federal Communications Commission lawyers have told a DC federal court that opponents of the April 20 decision to reinstate the UHF discount have not met the high bar for an emergency stay of that decision. The discount means that UHF TV station ownership only counts for half of their audience reach toward the 39% national ownership cap. The US Court of Appeals for the DC Circuit has granted an administrative stay of the June 5 effective date of the return of the discount but only so it can review the FCC's defense to an emergency stay request sought by opponents of the decision and the response from those opponents, which include Free Press and Prometheus. In opposing the emergency stay, the FCC says the commission simply concluded the agency had erred in a previous order—under then-chairman Tom Wheeler—that repealed the discount without also adjusting the cap. It did grandfather ownership groups for which the change would have pushed them over the 39% limit, though that grandfathering would not extend to sales of those stations.

Police should be allowed to unmask anonymous callers who have made serious threats over the phone, the Federal Communications Commission has proposed. The proposal would allow law enforcement, and potentially the person who’s been called, to learn the phone number of an anonymous caller if they receive a “serious and imminent” threat that poses “substantial risk to property, life, safety, or health.” Specifics are still up in the air. The FCC is asking, for instance, whether unveiled caller ID information should only be provided to law enforcement officials investigating a threat, to ensure that this exemption isn’t abused.

The Lifeline Connects Coalition spoke with staff at the Federal Communications Commission’s Wireline Competition Bureau on May 26, 2017 to discuss the Universal Service Administrative Company’s (USAC) current plan to require Lifeline subscribers to re-prove their eligibility when they are migrated to the Lifeline National Verifier and the significant burden and confusion that will impose on Lifeline participants. The Coalition said obtaining re-proof of eligibility from Lifeline subscribers is likely to be highly unsuccessful and the overwhelming majority of those de-enrollments would be due to consumers’ failure or inability to respond, not their lack of continuing eligibility for Lifeline.

The Trump administration’s leading candidate to head the Broadcasting Board of Governors, a position that with recent changes would give the appointee unilateral power over the United States’ government messaging abroad reaching millions, is a conservative documentarian with ties to White House chief strategist Steve Bannon, apparently. Michael Pack, the leading contender for the post, is president and CEO of the Claremont Institute and publisher of its Claremont Review of Books, a California-based conservative institute that has been called the “academic home of Trumpism” by the Chronicle of Higher Education. Pack, a former Corporation for Public Broadcasting executive, and Bannon are mutual admirers and have worked on two documentaries together. Pack has appeared on Bannon’s radio show and wrote an op-ed in March praising Bannon as a pioneer in conservative documentary filmmaking.

As a long-time political activist, Malkia Cyril knows how smartphones helped fuel Black Lives Matter protests with outraged tweets and viral video. But now Cyril is having second thoughts about her iPhone. Is it a friend or a foe?

For all of the power of smartphones as organizing tools, the many streams of data they emit also are a boon to police wielding high-tech surveillance gear, allowing them to potentially track movements and communications that activists such as Cyril would rather keep private. Such worries are driving a nationwide push by Cyril and other activists to train members of their movement in the tactics of digital defense — something they say is crucial with an aggressive new president who has displayed little sympathy for their causes.

To make sure the network neutrality rollback survives court challenges, newly appointed Federal Communications Commission Chairman Ajit Pai must justify his decision to redefine broadband less than three years after the previous change. He argues that broadband isn't telecommunications because it isn't just a simple pipe to the Internet. Broadband is an information service because Internet service providers give customers the ability to visit social media websites, post blogs, read newspaper websites, and use search engines to find information, the FCC's new proposal states. Even if the ISPs don't host any of those websites themselves, broadband is still an information service under Pai's definition because Internet access allows consumers to reach those websites.

As the Federal Communications Commission prepares to deregulate the telecommunication and cable industry by rolling back the agency's network neutrality rules, some people on both sides of the issue already say the battle is pretty much moot. On May 31, Netflix chief executive Reed Hastings signaled he thinks the current fight is unwinnable. "I think Trump's FCC is going to unwind the rules, no matter what anybody says," Netflix chief executive Reed Hastings said. "That's going to happen, and then we get to see what's going to come out of that."