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D.C. Circuit Court of Appeals Strikes Down FCC’s Net Neutrality Rules

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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.”

Among the news organizations with the first stories on the decision include GigaOm, The Verge, and Deadline.com.

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.

Drew Clark is the Editor and Publisher of BroadbandBreakfast.com and a nationally-respected telecommunications attorney at The CommLaw Group. He has closely tracked the trends in and mechanics of digital infrastructure for 20 years, and has helped fiber-based and fixed wireless providers navigate coverage, identify markets, broker infrastructure, and operate in the public right of way. The articles and posts on Broadband Breakfast and affiliated social media, including the BroadbandCensus Twitter feed, are not legal advice or legal services, do not constitute the creation of an attorney-client privilege, and represent the views of their respective authors.

FCC

Cable Group NCTA Says Deny Exclusive Multitenant Access, But Not Wiring, Agreements

NCTA said the FCC should deny exclusive access to these buildings, but not exclusive wiring agreements.

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Michael Powell, president and CEO of NCTA

WASHINGTON, September 8, 2021 – The internet and television association NCTA is suggesting that the Federal Communications Commission deny all broadband providers exclusive access to multitenant buildings, but to continue allowing exclusive wiring agreements.

On Tuesday, the FCC opened a new round of comments into its examination of competitive broadband options for residents of apartments, multi-tenant and office buildings.

In a Tuesday ex parte notice to the commission, which follows a formal meeting with agency staff on September 2, the NCTA said the record shows that deployment, competition, and consumer choice in multiple tenant environments “are strong,” and that the FCC can “promote even greater deployment and competition by prohibiting not just cable operators, other covered [multiple video programming distributors], and telecommunications carriers, but all broadband providers from entering into MTE exclusive access agreements.

The organization, whose member companies include Comcast, Cox Communications and Charter Communications, also said it should continue to allow providers to enter into exclusive wiring agreements with MTE owners. Wiring just means that the provider can lay down its cables, like fiber, to connect residents.

“Exclusive wiring agreements do not deny new entrants access to MTEs. Rather, exclusive wiring agreements are pro-competitive and help ensure that state-of-the-art wiring will be deployed in MTEs to the benefit of consumers.”

The NCTA also told the FCC that there would be technical problems with simultaneous sharing of building wires by different providers and vouched for exclusive marketing arrangements, according to the notice.

The FCC’s new round of comments comes after a bill, introduced on July 30 by Rep. Yvette Clarke, D-New York, outlined plans to address exclusivity agreements between residential units and service providers, which sees providers lock out other carriers from buildings and leaving residents with only one option for internet.

Reached for comment on the filing, a spokesman for NCTA said they had nothing to add to the filing, which was signed by Mary Beth Murphy, deputy general counsel to the cable organization.

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China

Hytera’s Inclusion on FCC’s National Security Blacklist ‘Absurd,’ Client Says

Diversified Communications Group said the FCC flubbed on adding Hytera to blacklist.

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Acting FCC Chairwoman Jessica Rosenworcel

WASHINGTON, September 8, 2021 – A client of a company that has been included in a list of companies the Federal Communications Commission said pose threats to the security of the country’s networks is asking the agency to reconsider including the company.

In a letter to the commission on Tuesday, Diversified Communications Group, which installs and distributes two-way radio communications devices to large companies, said the inclusion of Hytera Communications Corporation, a Chinese manufacturer of radio equipment, on a list of national security threats is “absurd” because the hardware involved is not connected to the internet and “does not transmit any sensitive or proprietary data.

“It seems that Hytera has been lumped in with other Chinese companies on the Covered List simply because they happen to manufacture electronics in the same country,” Diversified’s CEO Ryan Holte said in the letter, adding Hytera’s products have helped Diversified’s business thrive.

“This is a wrong that should be righted. Hytera is not a national security risk. They are an essential business partner to radio companies throughout the U.S.,” the CEO added.

In March, the FCC announced that it had designated Hytera among other Chinese businesses with alleged links to the Communist government. Others included Huawei, ZTE, Hangzhou Hikvision Digital Technology, and Dahua Technology.

List among a number of restrictions on Chinese companies

This list of companies was created in accordance with the Secure Networks Act, and the FCC indicated that it would continue to add companies to the list if they are deemed to “pose an unacceptable risk to national security or the security and safety of U.S. persons.”

Last month, the Senate commerce committee passed through legislation that would compel the FCC to no longer issue new equipment licenses to China-backed companies.

Last year the U.S. government took steps to ensure that federal agencies could not purchase goods or services from the aforementioned companies, and had previously added them to an economic blacklist.

In July, the FCC voted in favor of putting in place measures that would require U.S. carriers to rip and replace equipment by these alleged threat companies.

The Biden administration has been making moves to isolate alleged Chinese-linked threats to the country’s networks. In June, the White House signed an executive order limiting investments in predominantly Chinese companies that it said poses a threat to national security.

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Digital Inclusion

FCC Says 5 Million Households Now Enrolled in Emergency Broadband Benefit Program

The $3.2 billion program provides broadband and device subsidies to eligible low-income households.

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Acting FCC Chairwoman Jessica Rosenworcel

August 30, 2021—The Federal Communications Commission announced Friday that five million households have enrolled in the Emergency Broadband Benefit program.

The $3.2-billion program, which launched in May, provides a broadband subsidy of $50 per month to eligible low-income households and $75 per month for those living on native tribal lands, as well as a one-time reimbursement on a device. Over 1160 providers are participating, the FCC said, who are reimbursed the cost to provide the discounted services.

The agency has been updating the public on the number of participating households for the program. In June, the program was at just over three million and had passed four million last month. The program was part of the Consolidated Appropriations Act of 2021.

“Enrolling five million households into the Emergency Broadband Benefit Program in a little over three months is no small feat,” said FCC Acting Chairwoman Jessica Rosenworcel. “This wouldn’t have been possible without the support of nearly 30,000 individuals and organizations who signed up as volunteer outreach partners.”

Rosenworcel added that conversations with partners and the FCC’s analysis shows the need for “more granular data” to bring these opportunities to more eligible families.

The program’s strong demand was seen as far back as March.

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