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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. 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. He brings experts and practitioners together to advance the benefits provided by broadband. 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

FCC Announces New RDOF Accountability and Transparency Measures, Additional Funding

Results of verifications, audits and speed and latency testing for the Rural Digital Opportunity Fund will be made public.

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Photo of reels of cabling in Hinsdale, Mont., in August 2016 by Tony Webster used with permission

WASHINGTON, January 28, 2022 – The Federal Communications Commission on Friday said that it will implement new accountability and transparency measures, and make public the results of verifications, audits and speed and latency testing for the Rural Digital Opportunity Fund.

The measures are part of a new known as the Rural Broadband Accountability Fund that monitors several universal service high-cost programs.

Additionally announced in a press release, the Rural Broadband Accountability Fund will speed up the FCC’s audit and verification processes.

Audits and verifications are projected to double in 2022 as compared to 2021 and include on-site audits, and a particular focus will be placed on auditing and verifying the largest-dollar and highest-risk RDOF recipients.

The agency also announced that it would commit more than $1.2 billion more to RDOF, the largest funding round for the program to date.

The new funding will bring broadband service to more than 1 million locations through deployments in 32 states, with 23 broadband providers assisting the effort.

Going forward, the commission will deny waivers, it said, “for winning bidders that have not made appropriate efforts to secure state approvals or prosecute their applications.”

All winning bidders will undergo “an exhaustive technical, financial, and legal review.”

Finally, the commission says a list of areas will be published which details where providers have defaulted, “making those places available for other broadband funding opportunities.”

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Federal Communications Commission Approves New Provider Transparency Requirements

Broadband providers must now create “broadband nutrition labels” which list pricing and speed information.

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Photo of FCC Chairwoman Jessica Rosenworcel from January 2015 by the Internet Education Foundation used with permission

WASHINGTON, January 28, 2022 – The Federal Communications Commission voted Thursday to require that broadband providers create “broadband nutrition labels” that list information on the pricing and speed of internet service they provide.

The labels mimic food nutrition labels in format and aim to increase transparency of providers in their marketing to consumers.

With their approval at the commission’s monthly open meeting Thursday, Commissioner Geoffrey Starks said the new rules are crucial to consumers being able to find the best deals on broadband service for their personal needs.

Commission Chairwoman Jessica Rosenworcel praised the label format, saying that it allows consumers to “easily compare” information and that it is “black and white, simple to read, and easy to understand.”

The long-simmering idea was enacted by Congress in the bipartisan infrastructure bill signed by the president on November 15. It directed the FCC to revive the project by one year from the law’s passage.

On Thursday, Joshua Stager, New America’s deputy director for broadband and competition policy at its Open Technology Institute, called the vote “a welcome step forward and a win for consumers.” The think tank began promoting the idea last decade, and it had been endorsed by the Obama administration before being canned by the Trump administration.

Industry group Wireless Internet Service Providers Association said the transparency afforded by the new policy “provides consumers with important tools to make informed choices.”

Additionally in Thursday’s meeting, when the agency tentatively revoked telecom operator China Unicom Americas’ operating authority in the United States, the agency said they had reached out to the Department of Justice for assistance in responding to what they say are potential threats from the China-based company. This inter-agency review is routinely part of determinations involving foreign-owned telecommunications companies.

The agency also updated its definition of “library” to make clear that Tribal libraries are eligible to receive funds under the Universal Service Fund’s E-rate program.

Starks emphasized that the commission’s action represented progress on digital inclusion efforts, but that unfamiliarity of Tribal libraries with the E-rate program remains a problem.

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FCC

Federal Communications Commission Implements Rules for Affordable Connectivity Program

The agency implemented new rules on the Affordable Connectivity Program, which makes a new subsidy permanent.

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Photo of Jessica Rosenworcel by Rob Kunzig of Morning Consult

WASHINGTON, January 24, 2022 – The Federal Communications Commission adopted rules Friday for its Affordable Connectivity Program that changes and, in some cases narrows, the eligibility requirements for the subsidy to allow for more households to be connected.

An extension of the former Emergency Broadband Benefit Program, which offered discounts to broadband service providers to subsidize connectivity and devices, the new program will make it easier for providers to get in the program by automatically making eligible providers in good standing.

Additionally, the FCC maintains that the monthly discount on broadband service is limited to one internet discount per household rather than allowing the benefit for separate members of a household. “Adopting a one-per-household limitation best ensures that Program funding is available to the largest possible number of eligible households,” the agency said in its report.

To accommodate the volume of eligible households enrolling in the ACP, the FCC allowed providers until March 22 – 60 days after its Friday order is published in the Federal Register– to make necessary changes to ensure that the ACP can be applied to providers’ currently sold plans.

“So much of our day to day—work, education, healthcare and more—has migrated online. As a result, it’s more apparent than ever before that broadband is no longer nice-to-have, it’s need-to-have, for everyone, everywhere,” said FCC Chairwoman Jessica Rosenworcel. “But there are far too many households across the country that are wrestling with how to pay for gas and groceries and also keep up with the broadband bill. This program, like its predecessor, can make a meaningful difference.”

The Infrastructure Investment and Jobs Act transformed the EBB to the longer-term Affordable Connectivity Program by allocating an additional $14.2 billion to it.

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