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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

FCC Announces Largest Approval Yet for Rural Digital Opportunity Fund: $1 Billion

The agency said Thursday it has approved $1 billion to 69 providers in 32 states.

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Photo illustration from the Pelican Institute

WASHINGTON, December 16, 2021 – The Federal Communications Commission announced its largest approval yet from the $9.2-billion Rural Digital Opportunity Fund, greenlighting on Thursday $1 billion from a reverse auction process that ended with award announcements in December but that the new-look agency has been scrutinizing in recent months.

The agency said in a press release that this fifth round of approvals includes 69 providers who are expected to serve 518,000 locations in 32 states over 10 years. Its previous round approved $700 million worth of applications to cover 26 states. Previous rounds approved $554 million for broadband in 19 states, $311 million in 36 states, and $163 million in 21 states.

The agency still has some way to approve the entirety of the fund, as it’s asked providers that were previously awarded RDOF money in December to revisit their applications to see if the areas they have bid for are not already served. So far, a growing list have defaulted on their respective areas, some saying it was newer FCC maps that showed them what they didn’t previously know. The agency said Thursday that about 5,000 census blocks have been cleared as a result of that process.

The FCC also said Thursday it saved $350 million from winning bidders that have either failed to get state certification or didn’t follow through on their applications. In one winning bidder’s case, the FCC said Thursday Hotwire violated the application rules by changing its ownership structure.

“This latest round of funding will open up even more opportunities to connect hundreds of thousands of Americans to high-speed, reliable broadband service,” said FCC Chairwoman Jessica Rosenworcel.  “Today’s actions reflect the hard work we’ve put in over the past year to ensure that applicants meet their obligations and follow our rules.  With thoughtful oversight, this program can direct funding to areas that need broadband and to providers who are qualified to do the job.”

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FCC

Local Government Advisors Concerned by Delay in Sohn Confirmation Process

They also believe Alan Davidson will be viewed more favorably to head the NTIA.

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Nominee for FCC Commissioner Gigi Sohn

WASHINGTON, December 14, 2021 – Local government advisors are concerned by delays in the confirmation process of Gigi Sohn, President Joe Biden’s nominee for the Federal Communications Commission, and what those delays will mean for broadband services in local communities.

At the moment, there are reportedly not enough votes from Democrats to confirm Sohn.

The panel of local advisors at a National Association of Telecommunications Officers and Advisors on Monday said the FCC would likely remain split 2-2 between Democrats and Republicans until at least February, when the panel says Sohn’s confirmation will probably pass the Senate.

Such a split would prevent the agency from making some major decisions that would ramp up programs to expand broadband access for Americans. For this reason, several civil society groups have asked the Senate for a swift confirmation process of Biden’s nominees.

The panel also said that Biden’s nominee to head the National Telecommunications and Information Association, Alan Davidson, will likely be reported favorably out of committee.

Logistical problems for the Affordable Connectivity Program

Panelists also spent significant time discussing what current regulatory agency efforts mean for connectivity.

The panel critiqued the FCC’s transition from the Emergency Broadband Benefit to the Affordable Connectivity Program provided for by the newly-passed Infrastructure Investment and Jobs Act to continue providing students with internet access for e-learning. The program provides monthly subsidies for connectivity and devices for eligible students.

This transition is planned to take place with the start of the 2022 new year, and the agency is fielding comments on how to transition.

The panel stated that because this transition takes place during the school year, it has the potential to strand students without connectivity services. Panelists noted that they have been trying to communicate these concerns to the FCC.

The FCC recently eliminated an enrollment freeze in the EBB that was planned to take place during the transition to the ACP.

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FCC

FCC Takes Stock of Telehealth Successes, But Acknowledges a Long Way to Go at Agency Event

Procedural hurdles lie ahead for the commission’s telehealth efforts.

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FCC Commissioner Brendan Carr

WASHINGTON, December 6, 2021 – Federal Communications Commissioner Brendan Carr and several leaders in healthcare said Monday the agency’s efforts to expand telehealth programs for Americans face procedural hurdles before Congress.

The cost of government telehealth expansion efforts is among key factors that create congressional hesitance to rubber stamp the FCC’s telehealth initiatives.

During panel discussions moderated by Carr at a commission event on Monday, experts also remarked that the commission’s efforts would require a good deal of regulatory flexibility that many members of Congress may not be willing to grant it.

Panel guest Deanna Larson, CEO of virtual health network Avera eCARE, testified before the Senate on the matter in October, urging Congress to extend or make permanent its regulatory flexibility toward telehealth.

The panels also spent time discussing the substantial success the FCC has had in expanding telehealth over the course of the coronavirus pandemic.

Experts emphasized accomplishments such as the employment of remote monitoring devices by physicians to physically examine patients when they cannot come into the office.

The panel stated that the move from fully in-person healthcare to telehealth can be compared to the significance of the move from “Blockbuster to Netflix,” referencing the at-home experience of the streaming platform.

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