WASHINGTON, January 14, 2014 – The D.C. Circuit Court of Appeals, in a setback for the Federal Communications Commission, on Tuesday stuck down the agency’s Open Internet Order, issued in 2010.
The open internet rules built upon a prior policy statement issued by the FCC in 2005. In 2010, former agency chairman Julius Genachowski attempted to codify the 2005 principles into administrative law.
The court decision, Verizon v. FCC (pdf), represents a victory for the communications giant Verizon Communications, which sued the agency to block enforcement of the order.
In actual practice, though, cases where a company proposes or engages in actions in violation of the order are hard to come by.
As articulated in the 2005 policy statement, the agency put forward four principles for the open internet. They were that consumers should have or be able to:
- Access the lawful internet content of their choice
- Run applications and use services of their choice, subject to the needs of law enforcement
- Connect their choice of legal devices that do not harm the network
- Competition among network providers, application and service providers, and content providers
The Open Internet Order, as promoted by Genachowski and adopted by the agency, added two additional principles to these four.
The fifth principle stated that broadband providers may not discriminate against particular Internet applications by degrading or blocking lawful traffic.
The sixth principle would mandate broadband providers be transparent about their network management practices.
The decision, which struck down the 2010 order on a 2-1 vote of three Circuit Court judges, was not a complete loss for the commission.
A key passage concluded: “Even though the Commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates,” said the Court.
“Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such. Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order.”
In a statement, current FCC Chairman Tom Wheeler said:
The D.C. Circuit has correctly held that ‘Section 706 . . . vests [the Commission] with affirmative authority to enact measures encouraging the deployment of broadband infrastructure’ and therefore may ‘promulgate rules governing broadband providers’ treatment of Internet traffic.’ I am committed to maintaining our networks as engines for economic growth, test beds for innovative services and products, and channels for all forms of speech protected by the First Amendment. We will consider all available options, including those for appeal, to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans.
Senator Ed Markey, D-Mass., said:
As one of the primary authors of the Telecom Act of 1996, I know the Communications Act gives the FCC clear authority to oversee the operation of broadband networks, and has the power to intervene in its effort to preserve competition and safeguard consumers.
I plan to introduce legislation in the coming days that makes this crystal clear, and look forward to working with the Commission to ensure consumers are protected.
House Energy and Commerce Committee Ranking member Henry Waxman, D-Calif., said:
Today the D.C. Circuit affirmed what never should have been in question – the FCC can protect consumers, innovation, and competition online. Now the Commission must act expeditiously to exercise the authority the court has recognized. I look forward to working with the FCC to revise the rules on the books that protect the free and open Internet, so that it remains the robust platform that is driving our economy today and into the future.
Public Knowledge Senior Vice President Harold Feld said:
The Court has taken away important FCC flexibility, and its opinion could complicate FCC efforts to transition the phone network to IP [internet protocol] technology, promote broadband buildout, and other matters.
However, the Court did uphold broad Commission authority to regulate broadband. To exercise that authority, the FCC must craft open internet protection that are not full fledged common carrier rules. Alternatively, if the FCC needs broader authority it can classify broadband as a title 2 common carrier service.
Michael Beckerman, CEO of the Internet Association, said:
The continued success of this amazing platform should not be taken for granted. The Internet Association supports enforceable rules that ensure an open Internet, free from government control or discriminatory, anticompetitive actions by gatekeepers. We look forward to studying the D.C. Circuit’s opinion and working with the FCC and policymakers on the Hill to protect Internet freedom, foster innovation and economic growth, and empower users.
Federal Communications Commissioner Brendan Carr Optimistic About Finding Common Ground at Agency
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.
The $3.2 Billion Emergency Broadband Benefit Program: What’s In It, How to Get It?
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.
What You Need To Know About the More-Than-$7 Billion Emergency Connectivity Fund
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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