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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

Carrier Association Requests Reconsideration of FCC Decision on 911 Outage Notification

The CCA says the FCC order creates burdens on call providers and 911 special facilities.

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Photo of CCA president and CEO Tim Donovan

WASHINGTON, March 21, 2023 – The Competitive Carriers Association is asking the Federal Communications Commission to reconsider a November decision requiring carriers to provide certain network outage notifications within 30 minutes.

The FCC order mandates that originating call providers notify 911 special facilities – such as emergency call centers called public safety answering points – of outages “no later than within 30 minutes of when the outage that potentially affects 911 service is discovered.” The order also required those providers to keep up-to-date contact information for those special facilities in areas they serve.

In a petition on Friday, the CCA is asking for the FCC to review and implement flexibility in that timing. “The significant new requirements that the Commission has imposed on carriers…are likely to be burdensome and counter-productive not only for carriers, but also 911 special facilities,” the CCA said in its application, though it continues to encourage the commission to retain the “as soon as possible” requirement.

“At a minimum, however, the Commission should start the 30-minute timer (and subsequent timers) when actual originating service provider…notification occurs from its vendor or other underlying provider,” the CCA said, adding even then carriers “would face significant difficulty assessing the outage, identifying the appropriate” public safety answering points to notify, and making the required notifications within 30 minutes.

“Therefore, it would be appropriate to deem [originating call providers] compliant if they begin notifying affected PSAPs that an outage exists within the 30- minute timeframe, and continue to notify any PSAPs that the OSPs could not reach before the expiration of the 30-minutes,” the industry association added.

The association said the problem with the decision is it doesn’t account for the “practical difficulty (if not impossibility)” of getting a vendor notification, determining which of the thousands of answering points may be affected by the outage, and making the required notification in that timeframe. It said carriers frequently don’t get outage notifications from 911 solution vendors within 30 minutes.

“The unnecessarily rigid approach in the [order] will often make compliance an impossibility, and otherwise will require carriers to spend critical time and resources on notifications to PSAPs that are not affected by outages, and will subject PSAPs to frequent notifications regarding outages that do not affect them, with limited actionable information given the short deadline,” the CCA added.

The CCA is also requesting that the commission create and maintain a centralized database with information provided by the 911 special facilities. It notes that the FCC order fails to fully take into consideration the burden its approach will place on carriers, especially smaller ones with limited resources, and PSAPs, who are “likely to experience a recurring deluge of requests for updated contact information from numerous carriers subject to this amorphous standard.”

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FCC

FCC Nominee Gigi Sohn Withdraws from Consideration

Sohn was first nominated in October 2021.

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WASHINGTON, March 7, 2023 – The nominee for the fifth commissioner to the Federal Communications Commission withdrew her candidacy in a statement Tuesday, blaming “dark money political groups” for tainting her career.

“Unfortunately, the American people are the real losers here,” Gigi Sohn said in the statement. “The FCC deadlock, now over two years long, will remain so for a long time. As someone who has advocated for my entire career for affordable, accessible broadband for every American, it is ironic that the 2-2 FCC will remain sidelined at the most consequential opportunity for broadband in our lifetimes.”

Just last month, Sohn appeared before the Senate commerce committee for a third time and was lambasted by Republican members as an impartial nominee who has made controversial public statements on race and policing and who alleged gave money to members of the committee while being a nominee.

“When I accepted his nomination over sixteen months ago, I could not have imagined that legions of cable and media industry lobbyists, their bought-and-paid-for surrogates, and dark money political groups with bottomless pockets would distort my over 30-year history as a consumer advocate into an absurd caricature of blatant lies,” Sohn’s statement said. “The unrelenting, dishonest and cruel attacks on my character and my career as an advocate for the public interest have taken an enormous toll on me and my family.”

She appealed to the committee to hurry her to the Senate floor for votes so she can get to work on the FCC’s broadband availability map. She said in her statement that her withdrawal also means the commission won’t have the majority to adopt rules on nondiscriminatory access to broadband and to fix the Universal Service Fund programs.

Sohn was nominated for a second time by President Joe Biden in January.

“I hope the President swiftly nominates an individual who puts the American people first over all other interests,” she added in the statement. “The country deserves nothing less.”

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Broadband Mapping & Data

General Agreement on Broadband Label, But Not on Additional Disclosure Requirements

The FCC is considering additional requirements, but that could be burdensome for small providers.

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Screenshot of speakers at the Federal Communications Bar Association event

WASHINGTON, February 15, 2023 — As the comment deadline approaches for the Federal Communications Commission’s broadband “nutrition label” rule, industry experts are largely supportive of the measure, although some disagree over whether the requirements go too far or not far enough.

The FCC is currently considering whether to add additional requirements — such as cybersecurity data and more comprehensive pricing information about bundled plans — to the labels, which were mandated in November and require that providers list performance metrics, cost and other facts to inform purchasers at all points of sale. Other proposed measures aim to improve accessibility by requiring non-English translations, as well as Braille or a QR code with a tactile indicator. The comment deadline is Thursday.

Further requirements could have negative impacts on both consumers and providers, argued Farhan Chughtai, senior policy counsel at broadband consulting company JSI, at a Feb. 6 Federal Communications Bar Association event.

“You don’t want to make the labels too difficult—that’s going to lead to more consumer confusion,” Chughtai said. He pointed to metrics such as network management, network reliability and cybersecurity as topics that might be “too nuanced” for the labels.

Overly complicated labels risk being treated like terms of service agreements, where many users just skip through them, Chughtai said. “Let’s focus on speed, latency, monthly usage.”

Additional requirements would place a disproportionate burden on smaller, rural providers, he added.

Chughtai also pointed to the “point of sale” disclosure requirements as a potential barrier for small providers.

“For some of the larger providers, that documentation can be automated,” he said. “But when you’re talking about a small carrier in Kentucky that has two or three people that are working, that type of communication… could be troublesome. So again, I think that the commission did strike a good balance, but when it comes to implementation, I think there’s ways to continue to refine this.”

Diana Eisner, vice president of policy and advocacy at industry association USTelecom, agreed with Chughtai, adding that both small and large providers “agree that this point of sale documentation is problematic.”

The FCC should work with industry and consumer groups to continuously fine-tune the label requirements, Chughtai said.

Debate on current version of label

“I think the commission really struck the right balance largely of making sure that consumers can see the information in a snapshot—they’re not overloaded with irrelevant information,” Eisner said.

Consumer advocates are generally excited about the label, said Jonathan Schwantes, senior policy counsel at Consumer Reports. “I think the commission gets it mostly right,” he said.

However, Schwantes voiced concerns about the label’s scope, saying that they were intended to educate consumers in addition to serving as a comparison shopping tool.

“I’m concerned that existing consumers may never see the label unless you’re moving or you decide to change or maybe if you’re lucky enough to have a competing provider,” he said. “Based on the [FCC’s Communications Marketplace] report that came out right at the end of last year, there are still many millions of Americans who only have one choice of broadband provider.”

Schwantes noted that he and several other consumer groups attempted to address this issue by advocating for the labels’ inclusion on monthly service bills, but such a requirement failed to make it into the FCC’s mandate.

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