FCC

FCC Wrestles With Depth, Breadth of Net Neutrality Comments

WASHINGTON, February 8, 2010 – The Federal Communications Commission has received thousands of comments both lauding and criticizing its proposed plan to address the controversial issue of network neutrality.

Published

13 years ago

February 8, 2010

Rahul Gaitonde

The media and communications communities spent hundreds if not thousands of hours carefully crafting their arguments as their members view net neutrality as a linchpin to the future of Internet innovation and economic growth.

Content distributors, consumers and parties concerned about limitations on free speech largely favor net neutrality in their filed comments.

Some content makers also support the concept, but the largest content makers appear to oppose it.

Net neutrality supporters argued that a free and open Internet is necessary for innovation and that a lack of competition among service providers removes market protection from infringement.

“The success of the open Internet as a tool for economic growth and expression belies the premise that service differentiation is necessary or desirable,” submitted the City of Philadelphia’s government.

Sony also believes an open, unfettered Internet is best for the nation’s future: “This investment has been predicated on consumers having unfettered access to the legal content, applications and services of their choice” the electronics giant wrote. “Future investment requires the preservation of this underlying principle to protect the common interests of consumers, network operators, content developers and application providers in the Internet ecosystem. Moreover, SEL believes that ultimately the commission’s proposed network neutrality rules, if implemented, would lead to more expansive broadband deployment and greater consumer uptake of broadband connectivity and services.”

Phone firm Vonage wants the FCC to go further: “It recommends that the commission modify each of the first three principles to clarify that a provider of broadband Internet access service ‘may not prevent or hinder’ users from obtaining lawful content or applications or attaching lawful devices to the network. This change will better capture the harm to consumers that the commission designed these principles to prevent: degradation of service as well as a complete loss of service.”

Skype chimed in with concerns about unfair Internet transmission blockage by carriers: “Evidence suggests that carriers have the incentive and ability to harm innovation in the communications application market either by outright blocking or more subtle forms of discrimination. Because these applications offer consumers additional choice and savings, they should not be delayed, obstructed or throttled by broadband access providers. The commission’s openness policies should apply in a competitively neutral way across all broadband platforms.”

Google also cautioned that lack of an open Internet could harm innovation: “The Internet has created unprecedented benefits and opportunity for every facet of our society. For this reason, the FCC must take the broadest view when assessing how the assurance of open broadband networks affects risks, investment and innovations associated with broadband infrastructure, and the overlay services, content and applications that ride upon it. In brief, the open Internet drives overall investment and innovation in technology and in other sectors, maximizes free speech and civic participation, and engenders more sources to create the fastest and greatest innovations.”

The Internet search giant also touched on issues surrounding the use of deep packet inspection.

The Electronic Frontier Foundation and other commenters brought up the Madison River case: “Already, we have seen some troubling examples of protocol-based discrimination by ISPs. In 2005, Madison River Communications selectively blocked voice-over-IP (VoIP) services that could compete with its wireline telephone services.”

Many of these groups also expressed concern about possible content discrimination. For example, “EFF is also concerned that content-based discrimination may be looming on the horizon. The entertainment industry, for example, has been pressing ISPs to implement network-based measures to address the problem of online copyright infringement.”

DISH Network was one of the few content distributors to support network neutrality. It wrote that: “Nondiscrimination rules are necessary, because vertically-integrated broadband providers have the incentive and ability to discriminate against competitors like DISH. By favoring their own video services or degrading services of competitors, telco and cable providers can drive customers away from competitive direct broadcast satellite services. Permitting such anticompetitive behavior does not serve the public interest.”

The opposition to network neutrality comes not only from internet service providers but also from those who seek firmer copyright enforcement. The following is a summary of the most common and unusual claims they make.

The Motion Picture Association of America claims to support the principles but pushes further with concerns about content piracy. It says that “to make clear that ISPs are not only permitted, but encouraged, to work with content owners to employ the best available tools and technologies to combat online content theft. Service providers also should be encouraged to work with content owners to implement consumer education programs that can help law-abiding Internet users find legitimate sources for online creative works, while simultaneously warning repeat infringers that they risk consequences if they continue to violate the law.”

AT&T uses some of the strongest language slamming a net neutrality plan, asserting that robust competition already exists: “Unfortunately, the commission’s [notice of proposed rule making] charts an unwise, unwarranted and unprecedented reversal in course.” The telecommunications firms says that “far from being a ‘cozy duopoly’ as some pundits claim, wired broadband Internet access services are robustly competitive, as evidenced by increased speeds, rapidly growing usage, significantly declining prices on a per-bits-consumed basis, and very substantial customer ‘churn’ rates for both cable and telco broadband providers.”

Most of the commenters also say the FCC is trying to solve a problem that does not exist. For example, AT&T adds that “new regulation, moreover, without any credible data-driven evidence of any market failure amid this robust competition. Instead, it bases its hyper-regulatory proposals solely on the basis of speculation that a market failure might arise someday in the future.”

Verizon Communications and other firms claimed that the inability to manage their network properly would result in overcrowding and potentially a limit on innovation.

Verizon also claimed that net neutrality violates the First and Fifth amendments. “Contrary to claims of net neutrality proponents who assert that government regulations would promote First Amendment interests, the First Amendment protects against governmental restrictions on speech. Here, by restricting providers’ ability to offer their own differentiated services, whether by using their own content or innovative content and services offered in collaboration with others, the proposed rules would impose direct restraints on speech in violation of the First Amendment.”

It said net neutrality would impinge upon the Fifth Amendment by “requiring the compulsory dedication of private property to the use of others with no express statutory authorization and without compensation.”

Comcast, which some in the broadband community believe is the impetus for the FCC’s net neutrality rulemaking, said: “In light of these real risks, rules should only be adopted if a record is built that includes concrete facts and data demonstrating (1) actual – not conjectural – harms that would be remedied by the proposed rules; (2) actual – not hypothetical – benefits that would be gained by adoption of the proposed rules; and (3) that the harms and benefits outweigh the real risks to continued innovation and investment. To date there is no such record.”

Comcast also finds the rules to do more harm than good: “(1) The proposed rules apply only to a narrow class of Internet service providers, ignoring whether the Internet is “open” at all of its layers; (2) The proposed “nondiscrimination” rule would prohibit network operators from adopting a number of reasonable practices that potentially could have significant benefits for consumers and the public interest; and (3) The proposed “transparency” rule would create a new and burdensome legal duty for network operators while failing to impose corresponding duties on other key participants in the Internet ecosystem.”

Wireless providers also oppose network neutrality under network management grounds. Their main belief is that wireless networks operate differently from wired networks and so should receive the same regulation. They feel that they must deal with a lower amount of spectrum and must manage their networks more heavily. Additionally, the section on the connectivity of devices is truly something they feel their networks cannot handle. They also believe that their market — unlike the wireline market — is truly competitive with constant price drops and a wide variety of choices along with competition from WiFi hot spots and WiMax.

Pros and Cons Have Merit, But Is FCC Authority at Stake?

While the comments in support and opposition have merit, one of the biggest issues covered by the comments was whether or not the FCC has the authority to take these actions.

The FCC is using authority given it under Title I and II, which say, respectively, that the agency has ancillary authority and can regulate broadcast services. However, Time Warner disagrees: “Having appropriately classified broadband Internet access service as a Title I service, the commission cannot now seek to apply core aspects of Title II by regulatory fiat.”

Verizon said: “In 2005, when the commission confirmed that wireline broadband Internet access service is an information service outside the scope of Title II regulation, it found that such services were “offered by two established platform providers, which continue to expand rapidly, and by several existing and emerging platforms and providers.”

Google and Public Knowledge oppose this view and claim that the FCC does have the authority to provide this regulation. Google says the commission actually has authority under more than just Title I and II – it also can claim authority under Title’s II and VI. Google states: “Communications using last-mile broadband facilities – whether copper, fiber, or wireless – constitute “interstate… communication by wire or radio.” In the Wireline Broadband Order and Cable Modem Declaratory Ruling, the commission held that it had ancillary jurisdiction over wireline and cable broadband Internet access service providers, explaining that their “services are unquestionably ‘wire communications’ as defined in [the Act].”

The FCC also has determined in the Wireless Broadband Classification Order that wireless broadband Internet access service, offered using mobile, portable or fixed technologies, is “interstate . . . communications by radio.” Internet-based video programming is now significantly impacting both television broadcasting and cable, altering the economics of these marketplaces and affecting local programming, diversity of viewpoints, service delivery, and the FCC’s overall regulation in these areas. Broadband Internet access services also enable consumers to place Internet-based VoIP calls to “traditional land-line telephone[s] connected to the public switched telephone network.” The widespread use of VoIP and related services as cheaper and more feature-rich alternatives to Title II services has significant effects on traditional telephone providers’ practices and pricing, as well on network interconnection between Title II and IP networks that consumers use to reach each other, going to the heart of the Commission’s Title II responsibilities. In light of the impact of these Internet-based services on services regulated under Titles II, III and VI, as well as the effect upon the FCC’s regulatory framework under those Titles, precedent confirms the FCC may exercise its ancillary jurisdiction to fulfill its explicit mandates. “

The issues surround net neutrality have been discussed for years in both official and unofficial capacities, but with the FCC’s recent proposal of a rulemaking, the concerns have a forum for further discussion and may actually be addressed.

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Rahul Gaitonde

Rahul Gaitonde has been writing for BroadbandBreakfast.com since the fall of 2009, and in May of 2010 he became Deputy Editor. He was a fellow at George Mason University’s Long Term Governance Project, a researcher at the International Center for Applied Studies in Information Technology and worked at the National Telecommunications and Information Administration. He holds a Masters of Public Policy from George Mason University, where his research focused on the economic and social benefits of broadband expansion. He has written extensively about Universal Service Fund reform, the Broadband Technology Opportunities Program and the Broadband Data Improvement Act

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FCC

Senators Set Up Universal Service Fund Working Group, As Cruz Mounts Criticism of Broadband Program

A new Senate working group is set to consider reforms to the USF.

Published

6 days ago

May 23, 2023

Teralyn Whipple

Photo of Ted Cruz

WASHINGTON, May 23, 2023 – Sens. Ben Lujan, D-N.M., and John Thune, R-S.D., announced a bipartisan Senate working group earlier this month that would evaluate and propose potential reforms to the Universal Service Fund and guide education, awareness, and policymaking on the topic.

The USF, funded through a tax on voice service providers, supports four programs that make telephone and broadband services affordable for low-income households, health care providers, and schools and libraries. The fund’s sustainability has been under pressure with voice service revenues declining as more Americans use broadband services.

The working group will consider the current state of the USF requirements and consider reforms that would ensure the Federal Communications Commission is able to achieve its mission of universal service across the United States.

“Every community deserves a pathway to an affordable, resilient, and secure internet connection, and strengthening the Universal Service Fund is a key part of delivering our promise to connect every corner of America,” said Luján in a statement.

Sen Shelley Capito, R-W.VA. said that, “All options need to be on the table to modernize and update the USF to encourage and maintain universal service with our sights set on a more responsible, predictable, and prudent USF.”

Joining them in the working group are Sens. Amy Klobuchar, D-Minn., Shelley Capito, R-W.Va., Gary Peters, D-Mitch., and Jerry Moran, R-Kan.

Competitive Carriers Association CEO Tim Donovan commended the announcement, saying “USF programs are critical for competitive carriers and the consumers they serve. Going forward, these programs must provide sustainable, predictable, and sufficient support.”

Congressional legislation addressing USF concerns

The announcement follows the reintroduction of the Funding Affordable Internet with Reliable Contributions Act in March by Sens. Roger Wicker, R-Miss., Ben Lugan, D-N.M., Todd Young, R-Ind., and Mark Kelly, D-Ariz.

The FAIR Act would direct the FCC to conduct a feasibility study on collecting contributions from internet edge providers. It has passed the house and has been received in the Senate, awaiting a vote.

Later in March, a bill was introduced in both chambers that would require the FCC within one year of the enactment to solidify rules to reform how the fund is supported and conduct a study on the need to broaden the fund’s base. The Reforming Broadband Connectivity Act of 2023 is a version of a similar bill introduced in 2021.

In August, the FCC submitted a letter to Congress, urging it to “provide the commission with the legislative tools needed to make changes to the contributions methodology and base” for the USF.

Currently, there is “significant ambiguity in the record regarding the scope of the commission’s existing authority to broaden the base of contributors,” read the report. The FCC called for more power to make the necessary changes to support the program over the long term.

Ted Cruz takes USF management to task

Sen. Ted Cruz, R-Tex., said in his opening statements to a Senate Subcommittee on Communications, Media and Broadband hearing on May 11 that the USF is unshackled from congressional control and the FCC has avoided accountability for its “wasteful” and “ineffective” spending.

By this time, the fifth and sixth circuit appeals courts ruled in favor of the FCC when they denied a challenge to the commission’s authority in collecting money for the USF. Consumers’ Research alleged that the FCC was unconstitutionally delegating a private entity, the Universal Service Administrative Company, to help run USF programs. The court overruled the opinion, claiming that “Congress chose to ‘confer substantial discretion’ over administration of the USF to the FCC.”

Cruz said the FCC has never held a commission-level vote on a USF tax increase, instead choosing to passively enable hikes through a bureaucratic process, claimed Cruz in his remarks. The FCC has a couple of weeks to either approve or challenge the amount determined by USAC that needs to be collected from voice service providers.

“All told, the FCC has spent more than $156 billion on USF programs over the past twenty years. It’s unclear what American consumers have to show for it—other than higher phone bills,” Cruz said.

It is past due for Congress to get USF spending under control, he said. The solution is not to expand the base as it would not address the USF’s “underlying accountability failures.”

He called for Congress to consider all options of USF reform, “including subjecting it to the appropriations process, eliminating duplicative programs, and preserving only those efforts that demonstrate quantifiable benefits for American consumers.

“It has imposed ever-increasing tax burdens on American consumers without sufficient checks and balances or oversight from Congress,” he wrote, claiming that the USF has morphed into a “regressive, hidden tax.”

Similarly, the FCC “claims the new ACP program is successful but offers no data showing it has increased broadband adoption among low-income Americans as intended,” he said, claiming that the FCC is not responsibly managing the funds and rejecting the suggestion to increase FCC legislative authority. The ACP provides a monthly discount of up to $30 and $75 on tribal lands for connectivity.

FCC

Biden Announces Anna Gomez as Nominee for Fifth FCC Commissioner

Biden announces new FCC commissioner nomination following Sohn’s withdrawal.

Published

6 days ago

May 22, 2023

Teralyn Whipple

Photo of Anna Gomez, the president's newest nomination for fifth FCC commissioner

WASHINGTON, May 22, 2023 – President Joe Biden announced Monday his intention to nominate experienced telecommunications attorney Anna Gomez as commissioner of the Federal Communications Commission.

Democrat Gomez currently serves as a senior advisor for international information and communications policy in the State Department’s Bureau of Cyberspace and Digital Policy. She served as the National Telecommunications and Information Administration Deputy Administrator from 2009 to 2013 and spent over a decade in various positions at the FCC.

If voted in by the Senate, she would break the party deadlock of two Democrat and two Republican commissioners.

In a statement, Gomez thanked Biden for the “honor” and said she is “humbled and grateful. If confirmed, I look forward to working with Chairwoman [Jessica Rosenworcel] and my fellow Commissioners to bring the benefits of modern communications to all.”

Gomez “brings with her a wealth of telecommunications experience, a substantial record of public service, and a history of working to ensure the U.S. stays on the cutting edge of keeping us all connected. I wish her all the best during the confirmation process,” read a statement from Rosenworcel of the nominations.

Several trade associations, including the NCTA – the Internet and Television Association, the Wireless Internet Service Providers Association, Competitive Carriers Association, and the Satellite Safety Alliance, released comments Monday to congratulate Gomez on her nomination and support Biden’s step to empower the FCC.

Doris Matsui, D-C.A., ranking member of the House Energy and Commerce Subcommittee on Communications and Technology, released a statement commending the choice. “Gomez is the right choice to serve as our next FCC commissioner,” she said.

The FCC has been in a party deadlock for Biden’s entire presidency as a result of the Senate’s inability to vote on his first nomination, Gigi Sohn. Sohn’s nomination was announced in October 2021 but was never voted in because of criticism from Republican and moderate Democrat senators.

She withdrew her candidacy earlier this year, citing lawmaker attacks on her career, and is now serving as executive director of the American Association for Public Broadband.

Starks and Carr renominated

Biden’s also outlined his intention to renominate Democrat Geoffrey Starks and Republican Brendan Carr, both current commissioners, for another five-year term.

Regarding the renomination of Carr, Rosenworcel said, “from improving network resiliency in light of destructive hurricanes to keeping our networks safe in the face of evolving threats, the FCC has benefitted from his public service.”

Of Starks, she said that “he has been a consistent advocate for expanding the reach of communications and the opportunities of the digital age to all.”

“I look forward to working with a full complement of FCC Commissioners to advance our mission to connect everyone, everywhere,” she concluded.

FCC

FCC Votes for Foreign Telecom Ownership Reporting, Emergency Alert Flexibility

Thursday’s vote requires a one-time foreign ownership reporting requirement.

Published

1 month ago

April 20, 2023

Ahmad Hathout

Photo via Flickr

WASHINGTON, April 20, 2023 – The Federal Communications Commission voted unanimously Thursday to move forward on a proposal requiring carriers operating in the country to report their ownership information more regularly, enhance accessibility and flexibility with wireless emergency alerts, and improve the spectrum environment for new entrants and technologies.

To further combat insidious national security threats, the commission immediately ordered at its open meeting Thursday a one-time reporting requirement for telecommunications companies with section 214 authorization, which allows them to transact in the country, to report foreign ownership information. In essence, the new order will provide the commission with an updated look at the ownership picture of these authorized companies. The commission has expressed concern that it is not updated regularly about firm ownership because under the current rules, a company is only required to update the commission with ownership information when there has been a modification, transfer of control or discontinuance of service.

“There are consequences for failing to file accurate or timely information with the FCC about changes related to foreign involvement in companies with access to U.S. communications networks,” Loyaan Egal, chief of the FCC’s enforcement bureau, said in a press release. “When it comes to assessing U.S. national security and law enforcement interests, we will be vigilant in ensuring that companies comply with these important disclosure requirements,” including Thursday’s one-time reporting order. The commission has noted previous settlements it obtained from companies that had failed to get prior authorization for changes in the control of companies.

The regulator also voted at the same time to collect comments on a proposal that would require these companies to report more regularly on ownership changes. Specifically, the commission is looking at either adopting rules requiring companies to renew their section 214 authority every 10 years or requiring them to periodically update information about the companies.

The commission is simultaneously asking for comments on further proposed measures, including requiring section 214 applicants to provide information about expected future services and geographic markets they intend to serve; requiring applicants to identify on a periodic basis the facilities they use in Canada and/or Mexico; require them to commit to adhere to baseline cybersecurity standards; require them to certify in their applications whether or not they use equipment from a blacklist of companies deemed a national security risk; and require a lower threshold to report foreign stakeholder ownership, from 10 to 5 percent.

The latter drew a complaint from two investment firms, one of them notably represented by former FCC Chairman Ajit Pai in a meeting with agency commissioners last week. The concern was that the lower reporting threshold would deter investment in their firms, which bankroll telecom investment, because there is a presumption of confidentiality with their financial contributions.

Wireless emergency alert accessibility and flexibility

The commission also voted Thursday to initiate a consultation on proposed rules that would increase the accessibility and flexibility of wireless emergency alerts.

The FCC notes that 26 million people in the United States do not speak as their primary language English or Spanish, which are the only two languages in which these alerts are sent. As such, the commission is proposing the alerts be translated on mobile devices into the 13 “most commonly spoken languages” in the country other than English.

Other proposals include allowing for the alerts to feature a small image of a child missing during an AMBER alert, include links to locations where emergency situations are, providing alerting authorities with the ability to send messages without the blaring sound, and providing subscribers with the option of receiving alerts with sound or just phone vibrations.

One complaint of emergency alerts has been consumers getting loud alerts in the middle of the night where the emergency was not in their area.

Comments on the proposals are due within 30 days of publication on the federal register.

More efficient use of spectrum

The commission also adopted a policy statement that would commit the regulator to a “holistic” spectrum policy framework that it said would better facilitate new entrants and technologies.

Central to spectrum’s use is its delivery without causing interference with other services, including with adjacent radiowaves on the frequency spectrum. Historically, the commission has required new wireless services to bear the load of showing that they would not cause interference with existing services in any situation. Older receivers did not need to meet specific design or performance criteria, according to the commission.

Thursday’s policy statement, while still requiring that burden on new providers, would also require existing services to update their receivers to comply with modern realities.

“Accordingly, we encourage stakeholders to design receivers that not only meet their services’ needs, but also mitigate the impacts from undesired signals outside of their services’ assigned frequencies,” the commission said.

“Further, as new receiver technologies are developed with improved interference immunity, and as legacy equipment is being replaced over time, we encourage service providers periodically to deploy receivers that reflect the latest technical improvements,” it added.

In a statement, internet advocacy group Public Knowledge said this is a welcome effort to promote a more balanced approach to spectrum management.

“Today, legacy systems too often prevent innovation because they rely on outdated assumptions and have not been upgraded to reflect the current environment, limiting our ability to make full use of our spectrum resources,” said the organization’s policy counsel Kathleen Burke. “For far too long, our approach to new technology has focused solely on the new systems without any thought to how incumbent systems can make more room on our spectrum airwaves.”

“Upgrading outdated systems and equipment to increase spectrum access is one of the most overlooked aspects of spectrum management – presenting a prime opportunity for re-evaluating our policies in light of technological advancements,” Burke added. “This new policy statement embraces a fair approach to managing our spectrum resources by finally adopting the principles that minimizing harmful interference is a mutual obligation of band entrants and incumbents and that no spectrum user has a guarantee of zero interference.”