Tuesday, July 5, 2022
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Harold Feld: Does SCOTUS EPA Case Impact Net Neutrality?
News From the FCC
West Virginia v. Environmental Protection Agency
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News From the FCC
For as long as people have been talking about the digital divide, there have been complaints that we lack detailed maps to tell us exactly where broadband is—and is not—available. I wanted to give people a brief of the latest key developments:
- We opened our new system to collect information from over 2,500 broadband providers on precisely where they provide broadband services. Why it matters: This marks the beginning of our window to collect location-by-location data from providers that we will use to build the map.
- We’ve built the framework for a common dataset of locations in the United States where fixed broadband service can be installed. Why it matters: This new location dataset, called the “Fabric,” will serve as the foundation upon which all fixed broadband availability data will be reported and overlaid in our new broadband availability maps.
- We’ve established consistent parameters that require broadband providers to submit data on availability using individually geocoded locations. Why it matters: Geocoded data will allow us to create a highly precise picture of fixed broadband deployment, unlike previous data collections, which focused on census blocks, giving us inaccurate, incomplete maps.
- The FCC has launched a new online help center, with dedicated staff providing technical assistance, online video tutorials and webinars explaining the data submission process, and resources for consumers, internet service providers, states, localities, and Tribes seeking assistance with submissions. Why it matters: Our broadband maps are only as good as the data we collect, and this support will help make sure the Commission gets the data we need, the way we need it.
- Our maps are built to improve. We are making the maps accessible to challenges by states, Tribal and local entities, and consumers. Why it matters: Earlier broadband maps relied exclusively on data collected from broadband providers, leaving key stakeholders without an easy mechanism to challenge and improve maps that were missing data or mischaracterized broadband coverage. The best map is one that improves over time with everyone’s experiences baked in.
The Federal Communications Commission announced the release of Data Specifications for Bulk Fabric Challenge Data, which sets forth the requirements for filing bulk challenges to broadband serviceable location (BSL) data in the Broadband Serviceable Location Fabric. The Bulk Fabric Data Specification is available here. The FCC also provides further details on which locations are considered BSLs in the production version of the Fabric. The Fabric is a common dataset of all locations in the United States where fixed broadband Internet access service can be installed and will serve as the foundation on which fixed broadband providers’ availability data will be overlaid. Fixed Broadband Data Collection (BDC) filers that report their broadband availability data using a list of locations must match their locations to the BSL data in the Fabric. The production version of the Fabric is now available to BDC filers and state, local and Tribal government entities.
The Federal Communications Commission's Wireline Competition Bureau maintains the status quo and extends, for an additional year, the waiver pausing both the phase-out of Lifeline support for voice-only services and the increase in Lifeline minimum service standards for mobile broadband data capacity. Without this decision, support for services that meet only the voice minimum service standard, which currently stands at $5.25 per month, would be eliminated in most areas on December 1, 2022. Additionally, the minimum service standard for mobile broadband data capacity would rise from 4.5 GB to 6.5 GB per month beginning December 1, 2022. The bureau finds good cause to extend this pause for one more year to consider additional implications related to the newly established Affordable Connectivity Program and the FCC’s forthcoming Report on the Future of the Universal Service Fund. This pause will extend to December 1, 2023, giving the FCC time to consider how the longer-term Affordable Connectivity Program and any findings in the forthcoming Report on the Future of the Universal Service Fund should bear on the future of the Lifeline Program.
The Federal Communications Commission's Wireline Competition Bureau announced—effective on August 31, 2022—the counties in which conditional forbearance from the obligation to offer Lifeline-supported voice service applies, pursuant to the FCC’s 2016 Lifeline Order. This forbearance applies only to the Lifeline voice obligation of eligible telecommunications carriers (ETCs) that are designated for purposes of receiving both high-cost and Lifeline support (high-cost/Lifeline ETCs), and not to Lifeline-only ETCs. The FCC granted forbearance from high-cost/Lifeline ETCs’ obligation to offer and advertise Lifeline voice service in counties where the following conditions are met: (1) 51% of Lifeline subscribers in the county are obtaining broadband Internet access service; (2) there are at least three other providers of Lifeline broadband Internet access service that each serve at least 5% of the Lifeline broadband subscribers in that county; and (3) the ETC does not actually receive federal high-cost universal service support.
The FCC proposes a forfeiture of $220,210 against Kyle Traxler and Cleo Communications for apparently willfully and repeatedly engaging in conduct that violated the federal wire fraud statute and the FCC’s rules between on or about May 14, 2021 and on or about August 11, 2021. Cleo made apparent misrepresentations to gain FCC authorization to be a participating provider in the Emergency Broadband Benefit (EBB) Program and then apparently used that authorization to defraud consumers using interstate wires. While Cleo never filed for or received disbursements from the EBB Program, Cleo promised consumers that they would receive EBB Program-discounted broadband services and devices in exchange for online electronic payments to Cleo, but the company never delivered the broadband services or devices. Cleo’s schemes to defraud consumers under the pretense of participating in the EBB Program caused severe harm not only in monetary terms to the low-income consumers it preyed upon, but also to the trust and goodwill this or any program needs to achieve its purposes effectively. We find that the proposed $220,210 forfeiture penalty, the statutory maximum we can impose, reflects the scope, duration, seriousness, and egregiousness of Cleo’s apparent violations. We also find that Kyle Traxler and Cleo Communications are, for legal purposes, one and the same entity, and are therefore jointly and severally liable for the proposed penalty.
The Federal Communications Commission announces the anticipated rechartering of the Consumer Advisory Committee and solicits nominations for membership on the Committee, subject to renewal of the Committee’s charter on or before October 16, 2022. Nominations for membership are due on August 1, 2022. The Committee’s mission is to make recommendations to the FCC regarding topics of particular interest to consumers, to be specified by the Commission, and to facilitate consumers’ participation in proceedings before the Commission. For additional background about the Committee, see here.
West Virginia v. Environmental Protection Agency
The Biden Administration's loss in a Supreme Court ruling involving the Environmental Protection Agency's ability to regulate power plants could be a victory for internet service providers (ISPs)' arguments that the Federal Communications Commission was outside its regulatory lane when it reclassified internet access as a Title II common carrier service subject to open access and other requirements and imposed new neutrality rules. In the 6-3 opinion handed down June 30, Chief Justice John Roberts, who penned the decision, said that in the Clean Air Act, Congress had not granted the EPA the authority to devise emissions caps based on the electricity-generation shifting approach the EPA took in the Clean Power Plan. In that opinion, Roberts talked about the limits of the Chevron doctrine, which is the courts' customary deference to agency expertise when a statute's direction is less than crystal clear. ISPs have long argued that Congress did not give the FCC the authority it asserted in reclassifying internet access under Title II.
Does SCOTUS EPA Case Impact Net Neutrality? Here’s Why I Say No.
For most people, the Supreme Court’s decision in West Virginia v. Environmental Protection Agency was about environmental policy and what the Environmental Protection Agency can still do to cut carbon emissions. For a smaller subset, mostly lawyers, W. VA v. EPA was an important (but confusing) administrative law case what we will spend a bunch of time arguing about how to apply to agencies generally. And for the tiniest of all possible subsets, meaning me and a handful of other telecommunications lawyers, it was about . . . net neutrality. Because just about everything in telecom still revolves around net neutrality. The other basic truism about these events is that they are rather like [ink blots], where what you see depends a lot on what you already think. So those who hate Title II are convinced that this spells doom for any Federal Communications Commission reclassification efforts, whereas those on the pro-Title II side think this doesn’t really change anything. I’m as much a human being subject to this bias as anyone else. So I can only explain why I think W.VA. v. EPA hasn’t changed anything and let y’all decide if I’m right. It all depends on what the Supreme Court means by a “major question” that requires “clear proof” that Congress intended to vest the agency with the power to do the thing.
The Supreme Court’s latest climate change ruling could dampen efforts by federal agencies to rein in the tech industry, which went largely unregulated for decades as the government tried to catch up to changes wrought by the internet. In the 6-3 decision that was narrowly tailored to the Environmental Protection Agency, the court ruled that the EPA does not have broad authority to reduce power plant emissions that contribute to global warming. The precedent is widely expected to invite challenges of other rules set by government agencies. “Every agency is going to face new hurdles in the wake of this confusing decision,” said Alexandra Givens, the president and CEO of the Center for Democracy and Technology. “But hopefully the agencies will continue doing their jobs and push forward.” The Federal Trade Commission, in particular, has been pursuing an aggressive agenda in consumer protection, data privacy and tech industry competition under a leader appointed last year by President Joe Biden.
Broadband internet satellites are set to sweep the skies over the next decade at a scale never before seen. Just don’t ask policymakers today how exactly we’re going to manage the fallout. The story is a familiar one to longtime watchers of technology. Companies hooked up homes with electricity, with phone lines, TV signals and the internet — miracles of modern connectivity — but not without communities inheriting a cityscape loaded with hanging wires and accompanying fire hazards. Now that connectivity journey is reaching miles above the Earth, with side effects as grand as the broadband vision itself. Tech billionaires Elon Musk and Jeff Bezos are planning big investments in ambitious satellite broadband networks set to spin in low-earth orbit around the globe beaming internet signals back to those of us on the ground. That could be particularly valuable in hard-to-reach rural parts of the planet. But many rules for how these systems will operate are still yet to be written, posing practical and geopolitical challenges for aspiring market players like SpaceX, Amazon and OneWeb (a troubled rival now owned by the British government). That includes how these satellites can navigate around a fractured globe without creating a cascade of orbiting debris — all while not spoiling the night sky for stargazers. Adding thousands of orbiting satellites is poised to make the sky both chock-full of visual obstruction and brighter thanks to streaks of reflected light, which could scramble astronomy and even the migratory patterns of birds.
Leichtman Research Group (LRG) recently released the cable customer counts for the largest providers of traditional cable service at the end of the first quarter of 2022. LRG compiles most of these numbers from the statistics provided to stockholders, except for Cox, which is privately held and estimated. Leichtman says this group of companies represents 96 percent of all traditional US cable customers. The industry continues to bleed customers, losing over 1.4 million customers in the fourth quarter, up from 1.3 million customers the previous quarter. Overall, the traditional cable providers lost almost 15,900 customers every day during the quarter. Charter is still losing customers at a slower rate than everybody else in the industry and has for the past several years. He says that Charter actively points out to customers that the online alternatives cost more. The rest of the industry seems resigned to letting cable customers go. This drops the overall penetration rate of traditional TV to just above 51 percent of households. The industry has lost over fifteen million customers since the end of 2017 when traditional cable was in over 73 percent of homes.
[Doug Dawson is president of CCG Consulting.]
States must ease regulations surrounding local building permits and zoning that may prevent internet service providers from building broadband infrastructure, according to experts in community and stakeholder engagement at a June 28 Rural Broadband Conference. “If you want to attract private industry or want to bring fiber to your community, you have to take a serious look at red tape,” said Bob Knight, CEO of marketing firm Harrison Edwards Strategic Communications. The Upstate New York Town Association, a group dedicated to serving the needs of upstate New York communities, indicated that it would continue to lobby for an easing of state regulations to support broadband connectivity in its region. Knight encouraged states to engage with stakeholders and local community members to make the process easier and build networks in a timely fashion. Communities in Upstate New York worked with local engineers to develop broadband models that work for their topography. Understanding the local geography proved beneficial in building out networks that connect to all community members, said Carolyn Price, executive director of the Upstate Association.
Push-to-Talk (PTT) radios are first responders’ primary means of communication in an emergency. These two-way radios rely on Land Mobile Radio (LMR) networks to carry signals. PTT radios and LMR networks are reliable and secure, and fire, police, and other emergency response teams know these systems well. But voice radios are not enough anymore. Two-way radios can’t send pictures, blueprints, and maps and they can’t talk with units from other jurisdictions. Without these capabilities, communications could break down, jeopardizing rescue and response efforts. That’s why the National Institute of Standards and Technology (NIST)’s Public Safety Communications Research (PSCR) Division funded the Public Safety Radio Data grant. The project aims to collect and publish active public safety radio system transmission data from LMR systems. This LMR traffic data can support efforts to develop public safety traffic models for more advanced telecommunication systems and technology, such as LTE. These traffic models will also ensure resources are allocated equitably and optimally, from cities to the countryside and everywhere in between. If public safety organizations can further integrate LTE capabilities into their daily operations, teams could use two-way radios in the same way they use smartphones, with video, maps, blueprints, and photos as well as voice. Interagency coordination could become less challenging because responders from differing counties would be able to communicate with one another more easily. Adopting LTE for first responders could eventually help their devices work with 5G, and beyond.
Benton (www.benton.org) provides the only free, reliable, and non-partisan daily digest that curates and distributes news related to universal broadband, while connecting communications, democracy, and public interest issues. Posted Monday through Friday, this service provides updates on important industry developments, policy issues, and other related news events. While the summaries are factually accurate, their sometimes informal tone may not always represent the tone of the original articles. Headlines are compiled by Kevin Taglang (headlines AT benton DOT org) and Grace Tepper (grace AT benton DOT org) — we welcome your comments.
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