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Democrats Are Mad as Hell About FCC Chairman Ajit Pai’s Proposed Changes to Net Neutrality

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WASHINGTON, December 7, 2017 — Tom Wheeler, the Federal Communications Commission chairman under President Obama, wasn’t coy in expressing his feelings about his replacement’s “abomination” of a plan to gut the open internet rules he put in place two-and-a-half years ago.

“This is the culmination of a grand plan which started back in 2013,” Wheeler said Wednesday during a press conference with Sen. Ed Markey, D-Massachusetts, Rep. Anna Eshoo, D-California, and former FCC General Counsel Jonathan Sallet.

That plan — exemplified in the rules proposed by current FCC Chairman Ajit Pai—would see the Commission renounce authority over common carriers that it exercised in the decades since the agency was created by the Communications Act of 1934.

Pai plan effectively eliminates all open internet rules

Under Pai’s proposal, the FCC would effectively eliminate all open internet rules, with the exception of a transparency requirement initially put in place in 2010.

In addition to overturning rules put in place by his two Democratic predecessors, the proposal would also effectively overturn the “Internet Policy Statement” unanimously implemented by the FCC under former Chairman Kevin Martin, who served under President George W. Bush.

Martin attempted to enforce the “Internet Policy Statement” in a 2008 lawsuit against Comcast involving the throttling of peer-to-peer application BitTorrent. The FCC said that the throttling took place outside of the policy statement’s “reasonable network management” exception.

The D.C. Circuit Court of Appeals overturned that action in 2010, paving the way for the first round of open internet regulations, by then-FCC Chairman Julius Genachowski.

Under the new deregulatory approach that Pai and the Republicans at the agency appear poised to adopt on December 14, internet providers would be able to prioritize traffic for a fee, or prioritize traffic of affiliated companies, so long as they disclose those practices.

But the FCC passes the responsibility for enforcing these disclosure requirements to the Federal Trade Commission.

The FCC proposal would continue to preempt state internet regulations

States looking to step into the regulatory void would also find themselves out of luck under the Pai proposal, as the FCC would continuing to preempt any state law or regulation imposing common carrier requirements on Internet providers.

Even regulations governing internet providers that operate entirely within one state would be subject to this preemption, senior FCC officials said, because the Internet the provider is connection to is a nationwide network.

And where the current rules assert FCC authority to regulate internet providers based on the FCC’s authority to regulate communications networks, Pai would instead ask the Federal Trade Commission and Justice Department use a combination of antitrust law and consumer protection requirements to prevent consumer abused by internet service providers.

Former top FCC attorney slams commission for abdicating responsibility

Former FCC general counsel Jonathan Sallet noted this abdication of responsibility and predicted that a court would not allow the FCC to pick and choose which parts of the law to enforce.

“The draft order seems to say that the FCC is no longer interested in exercising its responsibilities as an expert agency,” he said. “I do not believe a court of appeals will uphold this order.”

Wheeler agreed, telling reporters that “[T]he abomination of next week’s action is not just the repeal of the existing open internet rules. It is how they’re doing it.”

“They’re vacating the field, they’re walking away from the responsibility that the FCC has had since 1934 to oversee networks,” he said.

Wheeler called the draft order — which has been championed by Pai, a former attorney for Verizon Communications — “a classic example of regulatory capture,” where “the regulatory agency bends to the wishes of those they are supposed to oversee.”

Sen. Markey and Rep. Eshoo call Pai’s proposal an ‘honor system’ and a ‘ruse’

Markey said that “absolutely nothing” would replace the FCC’s authority to protect consumers when Pai vacates the field after his new rules take effect, leaving some kind of bizarre “honor system” in place.

“Broadband providers get exactly what they want,” he said. ”Americans just do not want that to happen.”

Eshoo called the idea that Congress should step in and replace the FCC rules with legislation a “ruse” and a distraction.

“They don’t want the FCC to be the cop on the beat, they say they are for net neutrality except when you spell it out and codify it,” she said. ”They’ve moved away from it. They don’t believe in net neutrality, they don’t want it.”

Markey noted that when the current rules were challenged in court, he and Eshoo led the effort to submit an amicus brief on behalf of Congress in support of the rules, and that they would be doing it again because they and other network neutrality advocates plan on taking the FCC to court to keep them from abdicating their responsibilities.

“It’s a very vulnerable decision that they’re about to make, and I think we have a very good chance of prevailing in court,” he said.

(Caricature of former FCC Chairman Tom Wheeler by DonkeyHotey used with permission.)

 

Andrew Feinberg was the White House Correspondent and Managing Editor for Breakfast Media. He rejoined BroadbandBreakfast.com in late 2016 after working as a staff writer at The Hill and as a freelance writer. He worked at BroadbandBreakfast.com from its founding in 2008 to 2010, first as a Reporter and then as Deputy Editor. He also covered the White House for Russia's Sputnik News from the beginning of the Trump Administration until he was let go for refusing to use White House press briefings to promote conspiracy theories, and later documented the experience in a story which set off a chain of events leading to Sputnik being forced to register under the Foreign Agents Registration Act. Andrew's work has appeared in such publications as The Hill, Politico, Communications Daily, Washington Internet Daily, Washington Business Journal, The Sentinel Newspapers, FastCompany.TV, Mashable, and Silicon Angle.

Health

FCC Proposes Notification Rules for 988 Suicide Hotline Lifeline Outages

The proposal would ensure providers give ‘timely and actionable information’ on 988 outages.

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Photo via Health and Human Services

WASHINGTON, January 26, 2023 – The Federal Communications Commission unanimously adopted a proposal to require operators of the 988 mental health crisis line to report outages, which would “hasten service restoration and enable officials to inform the public of alternate ways to contact the 988 Lifeline.”

The proposal would ensure providers give “timely and actionable information” on 988 outages that last at least 30 minutes to the Health and Human Services’s Substance Abuse and Mental Health Service Administration, the Department of Veteran Affairs, the 988 Lifeline administrator, and the FCC.

The commission is also asking for comment on whether cable, satellite, wireless, wireline and interconnected voice-over-internet protocol providers should also be subject to reporting and notification obligations for 988 outages.

Other questions from the commission include costs and benefits of the proposal and timelines for compliance, it said.

The proposal would align with similar outage protocols that potentially affect 911, the commission said.

The notice comes after a nationwide outage last month affected the three-digit line for hours. The line received over two million calls, texts, and chat messages since it was instituted six months ago, the FCC said.

The new line was established as part of the National Suicide Hotline Designation Act, signed into law in 2020.

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Health

FCC Eliminates Use of Urban-Rural Database for Healthcare Telecom Subsidies

The commission said the database that determined healthcare subsidies had cost ‘anomalies.’

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WASHINGTON, January 26, 2023 – The Federal Communications Commission adopted a measure Thursday to eliminate the use of a database that determined the differences in telecommunications service rates in urban and rural areas that was used to provide funding to health care facilities for connectivity.

The idea behind the database, which was adopted by the commission in 2019, was to figure out the cost difference between similar broadband services in urban and rural areas in a given state so the commission’s Telecom Program can subsidize the difference to ensure connectivity in those areas, especially as the need for telehealth technology grows.

But the commission has had to temporarily provide waivers to the rules due to inconsistencies with how the database calculated cost differences. The database included rural tiers that the commission said were “too broad and did not accurately represent the cost of serving dissimilar communities.”

FCC Chairwoman Jessica Rosenworcel gave an example at Thursday’s open meeting of the database calculating certain rural services being cheaper than in urban areas, when the denser latter areas are generally less expensive.

As such, the commission Thursday decided to revert the methods used to determine Telecom Program support to before the 2019 database order until it can determine a more sustainable method. The database rescission also applies to urban cost determinations.

“Because the Rates Database was deficient in its ability to set adequate rates, we find that restoration of the previous rural rate determination rules, which health care providers have continued to use to determine rural rates in recent funding years under the applicable Rates Database waivers, is the best available option pending further examination in the Second Further Notice, to ensure that healthcare providers have adequate, predictable support,” the commission said in the decision.

Healthcare providers are now permitted to reuse one of three rural rates calculations before the 2019 order: averaging the rates that the carrier charges to other non-health care provider commercial customers for the same or similar services in rural areas; average rates of another service provider for similar services over the same distance in the health care provider’s area; or a cost-based rate approved by the commission.

These calculations are effective for the funding year 2024, the commission said. “Reinstating these rules promotes administrative efficiency and protects the Fund while we consider long-term solutions,” the commission said.

The new rules are in response to petitions from a number of organizations, including Alaska Communications; the North Carolina Telehealth Network Association and Southern Ohio Health Care Network; trade association USTelecom; and the Schools, Health and Libraries Broadband Coalition.

“The FCC listened to many of our suggestions, and we are especially pleased that the Commission extended the use of existing rates for an additional year to provide applicants more certainty,” John Windhausen Jr., executive director of the SHLB Coalition, said in a statement.

Comment on automating rate calculation

The commission is launching a comment period to develop an automated process to calculate those rural rates by having the website of the Universal Service Administrative Company – which manages programs of the FCC – “auto-generate the rural rate after the health care and/or service provider selects sites that are in the same rural area” as the health care provider.

The commission is asking questions including whether this new system would alleviate administrative burdens, whether there are disadvantages to automating the rate, and whether there should be a challenge process outside of the normal appeals process.

The Telecom Program is part of the FCC’s Rural Health Care program that is intended to reduce the cost of telehealth broadband and telecom services to eligible healthcare providers.

Support for satellite services

The commission is also proposing that a cap on Telecom Program funding for satellite services be reinstated. In the 2019 order, a spending cap on satellite services was lifted because the commission determined that costs for satellite services were decreasing as there were on-the-ground services to be determined by the database.

But the FCC said costs for satellite services to health care service providers has progressively increased from 2020 to last year.

“This steady growth in demand for satellite services appears to demonstrate the need to reinstitute the satellite funding cap,” the commission said. “Without the constraints on support for satellite services imposed by the Rates Database, it appears that commitments for satellite services could increase to an unsustainable level.”

Soon-to-be health care providers funding eligibility

The FCC also responded to a SHLB request that future health care provider be eligible for Rural Health Care subsidies even though they aren’t established yet.

The commission is asking for comment on a proposal to amend the RHC program to conditionally approve “entities that are not yet but will become eligible health care providers in the near future to begin receiving” such program funding “shortly after they become eligible.”

Comments on the proposals are due 30 days after it is put in the Federal Register.

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Digital Inclusion

Broadband Breakfast Interview With Michael Baker’s Teraira Snerling and Samantha Garfinkel

Digital Equity provisions are central to state broadband offices’ plans to implement the bipartisan infrastructure law.

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Digital Equity provisions are central to state broadband offices’ plans to implement the Broadband Equity, Access and Deployment grant program under the bipartisan infrastructure law.

In this interview with Broadband Breakfast Editor and Publisher Drew Clark, Michael Baker International Broadband Planning Consultants Teraira Snerling and Samantha Garfinkel go into detail about the role of Digital Equity Act plans in state broadband programs.

Michael Baker International, a leading provider of engineering and consulting services, including geospatial, design, planning, architectural, environmental, construction and program management, has been solving the world’s most complex challenges for over 80 years.

Its legacy of expertise, experience, innovation and integrity is proving essential in helping numerous federal, state and local navigate their broadband programs with the goal of solving the Digital Divide.

The broadband team at Michael Baker is filling a need that has existed since the internet became publicly available. Essentially, Internet Service Providers have historically made expansions to new areas based on profitability, not actual need. And pricing has been determined by market competition without real concern for those who cannot afford service.

In the video interview, Snerling and Garfinkel discuss how, with Michael Baker’s help, the federal government is encourage more equitable internet expansion through specific programs under the Infrastructure Investment and Jobs Act.

The company guides clients to incorporate all considerations, not just profitability, into the project: Compliance with new policies, societal impact metrics and sustainability plans are baked into the Michael Baker consultant solution so that, over time, these projects will have a tremendous positive impact.

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