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FCC General Counsel Gets Tough Questions at D.C. Circuit Court’s Net Neutrality Hearing

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WASHINGTON, February 2, 2019 — Network Neutrality once again took center stage Friday as the Federal Communications Commission found itself defending its repeal of Obama-era Open Internet rules before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit.

Friday’s oral argument was the most recent of many partisan clashes between the advocates of the FCC position under former Chairman Tom Wheeler, a Democrat, and that of current Chairman Ajit Pai, a Republican. Now, the agency  is defending its December 2017 Pai rules before the D.C. Circuit Court of Appeals.

On a 2-1 vote in June 2016, a three-judge panel of the appeals court upheld the February 2015 Wheeler net neutrality rules. That decision was reviewed en banc by the entire appeals court, and upheld in May 2017 (see below).

Following the 2016 presidential election and the shift from majority-Democrat to a majority-Republican FCC, Pai announced that the agency would re-reclassify broadband as an “information service,” rather than the “telecommunications service” under the Wheeler rules.

The lawsuit, led by the Mozilla Foundation and others seeking to judicially overturn the 2017 Pai rules,  was joined by more than 36 pro-Network Neutrality interest groups and entities, including the California Public Utilities Commission, Public Knowledge, and the Benton Foundation.

Legal arguments about the definitions of ‘telecommunications’ and ‘information’ services

FCC General Counsel Thomas Johnson spent much of the four-hour oral argument session trying to convince judges that the FCC was correct in its decision that broadband internet did not fall under the legal definition of a “telecommunications service” — “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.”

Instead, he argued that broadband was an “information service,” defined under U.S. law as “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.”

When Circuit Judge Patricia Millett — an appointee of President Barack Obama — noted that the inclusion of the phrase “via telecommunications” in the latter definition implied that an “information service” is something offered in addition to the transmission of information, Johnson suggested that broadband was an “information service” because providers offer Domain Name System services to allow users access to remote services by way of a domain name (e.g. Wikipedia.org) rather than by a hard-to-remember Internet Protocol address.

“DNS, for example, it generates queries to other servers, it stores and retrieves domain name information, it translates domain name information that is provided by the user into an IP address and back,” Johnson said.

But Millett remained skeptical and continued to press Johnson on why telephone service, which she noted “is constantly used to acquire information and share information,” is still considered a “telecommunications service” for regulatory purposes.

“It seems to be the exact same functionality, but one is voice and one is typing,” she said.

Did the FCC’s decision to lift bans on blocking and throttling affect public safety?

Another matter of contention during Friday’s arguments was whether the FCC’s ending of a ban on blocking or throttling of internet traffic fell afoul of the commission’s requirement to consider the impact of its rules on public safety.

This issue was raised by Danielle Goldstein, the attorney representing Santa Clara County, California, which joined the suit after firefighters responding to last year’s wildfires saw their internet access throttled by Verizon.

Noting that the FCC’s authority to preempt state and local laws regulations does not absolve it from its responsibility to consider the public safety impact of its rulings, Goldstein said: “The FCC can’t fail to address public safety, especially in an order that purports to preempt state and local government’s ability to fill that regulatory gap,”

When Johnson suggested that the burden of proving harm from the regulations would rest with public safety agencies, Millett took on an irate tone as she interrupted him: “Why is the burden on them?” she asked.

“The statute repeats again and again that public safety is an important goal, you had comments [from the public] expressing concerns, a lot of them. It seems like you have a statutory obligation, you had a lot of comments, a serious issue that should have been addressed by the commission in the order.”

Judge Robert Wilkins, another Obama appointee, noted that the broad language the FCC used in its reclassification order seemed to prohibit a state from restricting broadband carriers’ ability to throttle service to public safety personnel like firefighters.

“Your order would seem to prohibit that [hypothetical law] because your order is written very broadly,” Wilkins said. “Doesn’t it say that basically all state and local regulations with respect to broadband are preempted?”

While Williams did not directly answer Wilkins’ question, he said the FCC was not trying to impact public safety functions, adding that whether a particular state law would be preempted “would depend on the facts of that particular case.”

Further questions about whether the Obama-era rules stymied infrastructure investment

Johnson also had trouble convincing Millett that the FCC’s claim that the Obama-era rules stymied infrastructure investment by broadband carriers was accurate, after she pointed out that providers had told investors the exact opposite of the FCC’s claim.

After Johnson called the providers’ statements “ambiguous,” Millett interjected again: “What is ambiguous about, ‘it’s not going to affect us, we’re going to keep going ahead [with investment]?’” she asked, adding that companies’ statements to investors “have to be true.”

“It’s almost like someone doing something under oath. That’s pretty good evidence, if there’s a penalty if they’re lying or even engaging in misleading puffery,” she said.

Only the latest of many legal maneuverings regarding net neutrality

The third judge on the panel considering Mozilla Foundation v. FCC is Senior Judge Stephen Williams, who dissented from the 2-1 majority that ruled for the Wheeler FCC in the 2016 case US Telecom v. FCC. 

The two other judges in that case, David Tatel and Sri Srinivasan, were also Democratic appointees. When the matter went for an en banc review, Tatel and Srinivasan penned the majority opinion against overturning the panel’s decision.

Of the 11 full-time judges on the court at that time, eight participated in the review. Most notable were the two judges who dissented from denying the review: Janice Rogers Brown and Brett Kavanaugh, each of whom penned extensive opinions. Other than Tatel and Srinivasan denying review, and Brown and Kavanaugh favoring review, the positions of the other four judges who participated were not released — other than the fact that a majority denied review.

While the decision denying review was considered a minor victory by advocates of net neutrality, at that time the Pai FCC was already deep into its reconsideration of the Wheeler regulations. The agency effectively under a 180 degree turnabout — lifting the Wheeler rules and effectively eliminating all net neutrality protections except for transparency rules — in December 2017.

It is that new rule-making that is the subject of the new three-judge panel’s current judicial review of FCC regulations.

(President Barack Obama delivers a statement announcing the nomination of three candidates — now judges — on the U.S. Court of Appeals for the District of Columbia Circuit, in the Rose Garden of the White House, June 4, 2013. Nominees from left are: Robert Leon Wilkins, Cornelia “Nina” Pillard, and Patricia Ann Millett. Official White House photo by Chuck Kennedy.)

Andrew Feinberg is 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.

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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