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How Should the FCC Regulate Broadband? A Roundup of ‘Third Way’ Comments

WASHINGTON July 16, 2010 – After the D.C. Circuit Court of Appeals’ decision upholding Comcast’s ability to thwart broadband traffic over the peer-to-peer file-sharing software BitTorrent, the Federal Communications Commission was faced with uncertainty in regulating broadband.

In order to give the FCC firmer ground to regulate internet services, agency Chairman Julius Genachowski announced a proposal that has been dubbed the “Third Way” between regulating and deregulating internet services.

Thursday was the deadline for comments from the public regarding the notice of inquiry which was issued in June. Consumer groups and content makers praised aspects of the “Third Way,” while internet service providers were largely opposed.

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WASHINGTON July 16, 2010 – After the D.C. Circuit Court of Appeals’ decision upholding Comcast’s ability to thwart broadband traffic over the peer-to-peer file-sharing software BitTorrent, the Federal Communications Commission was faced with uncertainty in regulating broadband.

In order to give the FCC firmer ground to regulate internet services, agency Chairman Julius Genachowski announced a proposal that has been dubbed the “Third Way” between regulating and deregulating internet services.

Thursday was the deadline for comments from the public regarding the notice of inquiry which was issued in June. Consumer groups and content makers praised aspects of the “Third Way,” while internet service providers were largely opposed.

Supporters of the “Third Way” claimed that the FCC needed to reclassify broadband in order to allow for consumer protection.

Free Press, a media advocacy group, supports this reclassification, saying “a  limited Title II classification will uphold  the  commonly  shared  principles  of  universal  service,  competition,  interconnection, nondiscrimination, consumer protection, and reasoned deregulation — principles that created the Internet revolution.”

Title II refers to that portion of the Telecom Act that allows the FCC to regulate telephone companies as common carriers. Under a series of deregulatory moves in the 1990s and in the past decade, the FCC has placed internet services – as opposed to telecommunications services – under the less-regulatory framework of Title I.

These advocacy groups also contend that the “Third Way” will withstand judicial review. They cite the Supreme Court’s 2005 decision in Brand X Internet Services v. FCC decision, which granted the FCC the authority to make classification determinations.

“The  Supreme  Court  has  instructed  that  in  matters  of  administrative  policy, “change  is  not  invalidating,”  and  that  the  forces  of  change  do  not  always  or necessarily  point  in  the  direction  of  deregulation.   “Revisiting  the  classification determinations is an appropriate and much-needed exercise”

Internet telephone company Vonage supported the “Third Way.” but also said that the FCC had power under ancillary authority – or Title I – to achieve appropriate regulation of companies like Comcast.

The National Association of State Utility Consumer Advocates supported reclassification, and said that the original classification of cable services as an information service was wrong.

NARUC said that this classification “has become ever more incorrect, inadequate, and destructive of broadband progress with each passing year.”

The Ohio Public Utility supported the “Third Way,” but wanted the ability to regulate some issues at the state level, such as universal service and E911, or advanced location-based 911 services.

The main opposition to the “Third Way” came from broadband providers including Verizon Communications, AT&T and Cox Communications.

Verizon called the third way “a return to the old way of antiquated common carriage regulation that was developed in the 1800s for monopoly transportation and utility services.”

The company said that the imposition of the “Third Way” would increased regulatory uncertainty. It also warned against applying these rules to the wireless broadband market, a relatively new market.

Verizon said that the FCC does not have the legal authority to make this change. “As the Commission itself has repeatedly determined, and the Supreme Court has affirmed, retail broadband Internet access offered to consumers is an integrated ‘information service,’ not a ‘telecommunications service’ subject to common carriage regulation under Title II.”

AT&T also expressed opposition reclassifying broadband under Title II. They said:

Reclassification of those providers as Title II “common carriers” would be unnecessary to advance any valid policy objective, would present risks and harms that dwarf any putative benefits, and would all but scuttle the Administration’s ambitious broadband agenda.”

AT&T said that “there is a far better way to achieve that agenda than trying to cram today’s broadband Internet access providers into an ill-fitting 20th century regulatory silo, as the NOI’s ‘third way’ proposal would do.”

Rather, Congress should update the Communications Act to “encourage greater consumer-oriented transparency by broadband providers.”

The Institute for Policy Innovation also opposed the “Third Way.” It said that increased regulation will simply hamper innovation. Instead, it proposed the creation of “Broadband Enterprise Zones.”

“In areas designated as “Broadband Enterprise Zones” (based on broadband mapping), broadband providers would receive federal tax credits which could be used to offset the company’s overall federal tax burden. And vouchers could be issued to homeowners to pay for installation and setup within the Enterprise Zone.”

Cox Communications also opposed the reclassification on the grounds that the FCC has repeatedly determined broadband internet service as an information service.

“Those determinations were based, properly, on the service provided to the customer, a service that uses telecommunications to provide classic information service functionalities.  Attempting to change course now would be inconsistent with the facts and the law, and would have unintended consequences.”

The third set of comments assert that the FCC does not have the statuary authority to reclassify.  The National Religious Broadcasters said , that the FCC needed to wait for statutory authority from Congress.

The Communications Workers of America said that the FCC’s proposal will face years in court, and that the best solution was targeted legislation. However, they said they understand that the FCC seeks to act. They endorsed the concept of using ancillary authority under Title I.

Alcatel-Lucent said that the FCC is moving too quickly and does not have the information or the authority to reclassify broadband services. The maker of telecommunications equipment said they would like Congress to debate the issue and then come to a legislative solution.

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

FCC

Federal Communications Commissioner Brendan Carr Optimistic About Finding Common Ground at Agency

Samuel Triginelli

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Screenshot of FCC Commissioner Brendan Carr from C-Span

March 24, 2021 — Federal Communications Commissioner Brendan Carr said the regulator has since 2017 seen what he wanted: Broadband speed increases and lower prices.

“The approach we adopted in 2017 is working,” he said at the Free State Foundation’s 13th annual telecom policy conference on Tuesday. “Speeds have increased, prices are down, and we see more competition than ever before; we need to keep it that way,” he said, stressing the importance of reinforcing the good work the previous administration did and continues to do.

Carr, who has been a part of the FCC since 2012 in various capacities and through different compositions, said the transition into the new administration is going well.

In contrast to before, when it seemed as though the “sky was falling” and there were many problems with net neutrality, today’s reality is quite different, thanks to Acting Chairwoman Jessica Rosenworcel, he said.

The chairwoman contacted him almost immediately after she asked him to participate an event together on telehealth. There have been a lot of conversations and compromises since that moment, he said.

He said elections do bring some consequences, and undoubtedly have shaken some of the agency’s previous standards with a different party in leadership. However, he said the FCC has been finding common ground, something that “has been all too rare in the past couple of years.”

He added that, in 2016, experts and analysts weren’t painting a very rosy picture for the US future leadership when it comes to 5G. One of the primary reasons cited was the cost and length of time to build out the Internet infrastructure in this country, he said.

“We went from 708 new cell sites in 2017 to over 46,000. The progress is astounding, and not only with towers but with fiber, as we built 450k miles of fiber in just one year alone.”

Spectrum auctions driving the agenda, Carr says

Optimistic on spectrum, he pointed out that at present, there is a lot of it available. “In 2017, the FCC had previously voted in a lot of higher band spectrum options.”

The work of initial prioritization was completed by us before 2017 when we moved in and noticed the lack of midband spectrum in the pipeline. We had to move fast, and we had the first auction for the midband in 2020, with frequencies ranging from 3.5 to 5.5 gigahertz.

Over the last couple of years, he said the FCC has opened that band to intensive use, pushing the midband spectrum a great deal. The future holds the need to create a spectrum calendar with a rough outline of spectrum auctions, including which bands are available for auction and when, he said. “I have already filled in that calendar.”

He said the regulator’s challenge is not with a lack of communication but with coordination.  “We need the FCC to take a step back and consider the public interest, how the agency can best achieve the federal missions and how it can best do this. Even if there are going to be disagreements, it is paramount to ensure that the American economy stays competitive.”

Looking ahead, Carr said the 5.9 gigahertz project, which last year was on trial to expand rural broadband access, would be a great beginning to prove that good leadership and compromise are possible between both parties.

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The $3.2 Billion Emergency Broadband Benefit Program: What’s In It, How to Get It?

Tim White

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Pool photo of FCC Acting Chairwoman Jessica Rosenworcel by Jonathan Newton

March 5, 2021 – Just shy of the 60-day deadline set by Congress, the Federal Communications Commission adopted an order on February 25, detailing how the new Emergency Broadband Benefit Program would work.

The $3.2 billion program was part of the Consolidated Appropriations Act of 2021 that passed Congress in December 2020 and is allocated to the FCC to help low-income households with broadband access during the COVID-19 pandemic.

Broadband Breakfast Live Online will focus on the program on Wednesday, March 10, 2021: “The Emergency Broadband Benefit: How Will the $3.2 Billion Program Work?

The funding will provide up to $50 per month for eligible low-income households, increased to $75 per month for those living on native tribal lands. Rather than disbursing directly to consumers, the funds will be distributed to participating broadband providers, who in turn will grant the discounted internet access to qualifying households who apply.

The Emergency Broadband Benefit program is not to be confused with the Emergency Connectivity Fund currently being considered by Congress.

The Emergency  Broadband Benefit program also has a one-time reimbursement option of $100 for purchasing desktops, laptops or tablets for connecting to the internet, with a co-pay of between $10 and $50.

Households do not receive the reimbursement for buying a device separately: That is provided by the service providers through which the funding will be disbursed.

To qualify for the program, households must meet one of the following criteria:

  • Qualifies for the FCC Lifeline program
  • Is approved for the free or reduced-price school breakfast/lunch program
  • Demonstrates substantial documented loss of income since February 29, 2020
  • Received a federal Pell grant in the current award year
  • Qualifies for a participating provider’s existing low-income or COVID-19 relief program, subject to FCC approval.

To receive reimbursement for services and connected devices, participating service providers must register with SAM.gov, cannot be listed on the Department of the Treasury’s “do not pay” list, and must register with the FCC to receive a registration number. Similar to the Lifeline program, the EBBP will be provided to companies who participate through the Universal Service Administrative Company.

To participate, companies are not required to be eligible telecommunications carriers through Lifeline, but must apply through an “election notice” with USAC. They must also get prior approval from the FCC before filing their notice.

The application window for service providers to apply to the program opens on Monday, March 8, 2021, and ends March 22. The program should begin approximately April 25, or 60 days after the FCC published the order.

The service provider’s broadband plan must have been in place by December 1, 2020, to receive the discounted rate.

Unlike the FCC’s Lifeline program that has been in place for several years, this new funding is temporary and set to expire, either when the $3.2 billion are exhausted or six months after the Health and Human Services secretary declares that COVID-19 is no longer a health emergency.

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FCC

What You Need To Know About the More-Than-$7 Billion Emergency Connectivity Fund

Derek Shumway

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Photo of Kamala Harris proceeding to break the deadline on coronavirus relief deliberations from the Los Angeles Times

March 5, 2021 – The Senate on Thursday voted to begin debate on the $7.6 billion Emergency Connectivity Fund, which is part of the House-passed $1.9-trillion coronavirus stimulus bill.

Most of the 591-page bill adheres closely to what President Biden called for in his relief proposal in January 2021, as reported by CNN. The $7.6 billion Emergency Connectivity Fund includes funds for internet service, hot spots, and other devices to use at home. The larger coronavirus bill includes new rounds of stimulus checks, unemployment assistance, and healthcare support.

This comes after a coalition of education advocates in January 2021 petitioned the FCC to add in a provision for emergency E-rate funding. On Feb. 9, 2021, House Energy and Commerce Chairman Frank Pallone, D-N.J., announced the provision as part of the committee’s legislative recommendations for the COVID budget reconciliation legislation. The Federal Communications Commission would be tasked with implementing the $7.6-billion fund.

The potential fund of more than $7 billion fund in this Emergency Connectivity Fund is not to be confused with the Emergency Broadband Benefit Program, a new pot of broadband money allocated by the consolidated appropriations bill passed in December 2021.

Broadband Breakfast Live Online will focus on that other program on Wednesday, March 10, 2021: “The Emergency Broadband Benefit: How Will the $3.2 Billion Program Work?

The magnitude of the pandemic has sent schools scrambling to connect students to virtual learning. The Emergency Connectivity Fund would help connect some more than 15 million children and as many as 400,000 teachers, according to Common Sense and Boston Consulting Group.

But passage of the additional more-than-$7 billion in funding is not assured. Even to begin debate on the broader coronavirus relief package, Vice President Kamala Harris had to cast a tie-breaking vote because the Senate is even split with 50 senators who caucus with the Democrats and 50 Republicans.

Major tech priorities included in an earlier Senate draft of the bill appear unchanged in the official version of the bill introduced to the Senate yesterday. Funding for the Emergency Connectivity Fund is part of larger funding for the Technology Modernization Fund, as well as for the Cybersecurity and Infrastructure Security Agency and other proposals.

President Biden originally proposed $10.2 billion of funding for the modernization fund and cybersecurity, but the Senate’s version includes just $1 billion. Additional, the Senate’s version includes  $7.17 billion for the Emergency Connectivity Fund, which was reduced by more than $400 million from the original $7.6 billion proposed figure.

Still, the fund represents the a very large tech investment to support broadband capabilities and remote learning in schools.

As Broadband Breakfast noted on Monday, the Emergency Connectivity Fund, previously signed into law in December 2020, secured $3.2 billion to expand broadband coverage to underserved communities and households in need. This internet service discounts of up to $50 per month for eligible consumers and up to $75 per month for those on tribal lands. Additional discounts on a computer or laptop device are also included.

As reported by MeriTalk, getting the Senate to bring its version of the $1.9 trillion stimulus bill to a vote later this week is imperative, as both chambers are pushing to get the bill signed into law before March 14, when some unemployment assistance programs will expire.

Presuming the Senate passes its version of the bill, it goes back to the House for a vote and then onto the White House for President Biden’s final signature.

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