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Supreme Court Hears Oral Arguments About Robocalls Over the Telephone

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Photo of Justice Ginsburg by the European University Institute used with permission

May 6, 2020 – The Supreme Court on Wednesday used the telephone to hear arguments on the constitutionality of political messages sent over the telephone.

The case, Barr v. American Association of Political Consultants Inc., concerns the Telephone Consumer Protection Act of 1991, which places limits on the number of robocalls, or machine-generated telephone calls, that corporations can lawfully perform.

The audio feeds of the Supreme Court’s arguments on Tuesday and Wednesday were distributed live to media outlets. The high court has very rarely made audio recordings and transcripts available soon after the fact.

But owing to the coronavirus pandemic, the Supreme Court this week allowed “remote” participation in oral arguments — and made them available to the public — as they were happening.

In 2015, Congress passed an amendment that allows robocalls for government debt collection. The TCPA’s government debt exception has been in the hot seat in lower courts and in fact was ruled unconstitutional in the Fourth Circuit. The restrictions on other robocalls were left in place.

At the core of the case is the constitutionality of content-based discrimination of robocalls.

If the Court ultimately determines that the government debt exception is unconstitutional, it will mean that more robocalls fall under the banner of free speech, preventing the government from restricting them under the TCPA.

Such a ruling could impact the number of automated robocalls to American homes.

The Supreme Court’s 2015 ruling that a municipality could not impose content-based restrictions on signage, in Reed v. Town of Gilbert, heavily influenced the hearing.

Roman Martinez, Attorney for the American Association of Political Consultants, argued that while some restrictions on robocalls are constitutional and would survive strict scrutiny, the current legislation inappropriately bans certain types of calls based on their content.

“Courts should not be making more speech illegal,” Martinez said, “because if courts take that certain type of speech that Congress expressly chose to allow, they’re essentially stepping into the legislative shoes.”

Martinez also alluded to potentially ill-advised motivations for the government debt restriction. “Because of the fact that everyone has cell phones, the government has an especially strong interest now, from a revenue perspective, of making those revenue calls,” he said.

However, Deputy Solicitor General Malcolm Stewart argued that the content of the call is not the only factor in determining the TCPA’s application.

“It is true that often a court…would look in part to the content of the call,” said Stewart. “But you wouldn’t look exclusively to the content of the call.”

Justice Stephen Breyer, who dissented from the decision made in Reed v. Town of Gilbert, expressed concern about the definition of content discrimination.

“All human life is carried on through speech,” said Breyer. “Every single statute book is filled with all kinds of content discrimination.”

Justice Ruth Bader Ginsburg, calling from the hospital where she is recovering from a nonsurgical gallbladder treatment, questioned whether the debt exemption would avoid the content-based distinction label.

“Essential content is a debt owed to the government,” she said to Stewart. “You owe the government…the student loan, or whatever, then the message is okay. But if the message is ‘please contribute to our political organization,’ [it is not]. So, it’s based on what the message is.”

Elijah Labby was a Reporter with Broadband Breakfast. He was born in Pittsburgh, Pennsylvania and now resides in Orlando, Florida. He studies political science at Seminole State College, and enjoys reading and writing fiction (but not for Broadband Breakfast).

FCC

Housing, Public Interest Groups Oppose Multitenant Exclusivity Agreements

The FCC is looking at how to promote broadband competition and access in buildings.

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Photo of Jenna Leventoff from Internet Law & Policy Foundry

WASHINGTON, October 21, 2021 – Opponents of exclusivity arrangements that give tenants of multitenant buildings less choice of internet service provider are urging the Federal Communications Commission to eliminate all manifestations of these contracts that they say harms competition and locks landlords into burdensome long-term contracts.

While the FCC has previously banned exclusive access agreements that granted a single provider sole access to a building, it did not do so for exclusive wiring, marketing and revenue sharing arrangements. That means third party service providers cannot share the building wires with the telecom with that privilege and cannot market their services to the building’s residents.

The FCC launched a comment period in September to field arguments about what to do with these holdout issues that gave priority to ISPs. In an early submission, the internet and television association NCTA said the commission should deny all broadband providers exclusive access to these buildings, but not exclusive wiring agreements.

Internet and competitive networks association INCOMPAS said in its submission that the competitive environment has continued to suffer due to these exclusive deals and, in the case of retail shopping centers, their deals have been extended over the “last several years.”

It is asking for a complete ban on the wiring, marketing and revenue sharing arrangements, which they say “make it tougher for new entrants to effectively compete in MTEs.

“Competitive providers are still asked to participate in revenue sharing arrangements or are routinely denied access to MTEs because of exclusive wiring or marketing agreements,” INCOMPAS said, adding consumers and businesses “lose out on the faster speeds, lower pricing, and better customer service that competitors offer.”

Public Knowledge similarly said there is a lack of competition emerging from these practices that is increasing prices and restricting choice for tenants.

“Although the FCC has banned explicit exclusive agreements in multi-tenant environments (MTEs) such as apartment, condos, and office buildings, landlords and internet service providers have exploited loopholes to nevertheless create de facto monopolies in buildings,” said Jenna Leventoff, senior policy counsel at Public Knowledge.

The group is asking for a ban on “all types” of these arrangements that “negatively impact consumer choice, ensuring all ISPs have access to a building’s wiring regardless of the owner, creating a ‘rocket docket’ to quickly adjudicate supposed violations, and creating a single regulatory regime for both commercial and residential MTEs.”

In a joint submission on Wednesday, Consolidated Communications Holdings and Ziply Fiber said they “often confront such anti-competitive agreements,” with revenue sharing and marketing arrangements being the most “prevalent and troublesome.

“In practice, these agreements frequently work together as a complete bar to competing providers, giving the incumbent broadband provider a de facto exclusive service agreement with respect to an MTE,” the submission said, alleging MTE owners will “explicitly cite their lucrative revenue sharing agreements with an existing provider as their reason for not allowing our companies to access their buildings” and so to not to lose out on that compensation.

Harm on building owners

For the Stewards of Affordable Housing for the Future, exclusive wiring arrangements have not only limited choice for residents, but it has allegedly locked housing providers into “long-term onerous contracts that prohibit them from pursuing connectivity solutions, such as owner-provided broadband, at their properties.”

Members of the affordable housing group are recommending the FCC impose “reasonable standards” on such agreements, which require ISPs to offer low-cost programs or owner provided broadband at a competitive cost and give landlords an option to exit or renegotiate a contract after a certain time.

The FCC’s look into the issue 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.

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FCC

FCC Votes on Proposals Ranging From Emergency Response to SIM Swap Fraud in Open Meeting

The agency held an open meeting Thursday to hammer out votes on a range of issues.

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Acting FCC Chairwoman Jessica Rosenworcel.

WASHINGTON, September 30, 2021 — The Federal Communications Commission voted in an open meeting Thursday on several items, including expanding the E-Rate program and addressing SIM swap fraud and robocalls.

The commission voted to increase backup power to networks in case of emergencies and natural disasters and update outage reporting requirements. This follows an aggressive response from the agency during Hurricane Ida. The federal government lost $284 million of productivity during the winter storms last year.

Targeting robocalls from overseas, the FCC passed a set of rules for gateway voice service providers. Gateway providers will be asked to block calls from numbers the FCC lists, to authenticate caller ID and to submit to the FCC a certification of the practices they are using to block robocalls. This follows the June 30 deadline for large voice service providers to implement the STIR/SHAKEN regime, which requires telecoms to work to limit robocalls and ID spoofing or face fines and penalties.

In an effort to reduce SIM swapping and port-out fraud, rules were proposed which would require carriers to adhere to a set of secure methods of authenticating the identity of a customer before moving a customer’s phone number to another carrier or device.

SIM swapping is the act of identity theft whereby a person convinces a wireless carrier to transfer a victim’s cell service into the thief’s possession. Port-out fraud is when the thief creates an account with a new carrier and convinces the victim’s carrier to port out the victim’s service to the new carrier.

The notice also proposes that customers be alerted immediately whenever a SIM change or port request is made under a customer’s identity and account. FCC Acting Chairwoman Jessica Rosenworcel quoted senator Ron Wyden, D-Oregon, stating that “consumers are at the mercy of wireless carriers when it comes to being protected against SIM swaps.”

The FCC also updated the definition of library to include tribal libraries for use with their E-rate program, following a 2018 law from Congress. Many tribal libraries under the law were excluded from the program, which subsidizes broadband for schools and libraries, for over 20 years. Only 15 percent of tribal libraries reported having received E-Rate support.

The FCC also adopted and made transparent a series of questions that will be asked of foreign-owned companies wishing to participate in the US telecommunications market.

Questions include whether the applicants or investors have been charged with felonies, been subject to penalties for violating regulations of the US government, have undergone bankruptcy, are on the Specially Designated Nationals and Blocked Persons list and more.

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FCC

FCC Commissioner Simington Says Universal Fiber to the Home Can Wait

Simington also raised idea of Big Tech contributing to Universal Service Fund.

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FCC Commissioner Nathan Simington.

WASHINGTON, September 29, 2021 – Federal Communications Commissioner Nathan Simington said Tuesday that adoption issues for fiber is delaying the need to make universal fiber to the home a priority right now.

“I think we can push back on fiber to the home universally, at least in noting that there are edge cases and adoption issues there and that some degree of wireless is going to have to be part of the broadband future,” Simington said in a one-on-one conversation with the Internet Innovation Alliance.

A large part of the discourse surrounding the future of broadband expansion in the country is what kinds of technologies are most prudent to ensure connectivity now and scalability in the future. The Wireless Industry Association has pressed the fact that multiple technologies, including wireless, have a play in broadband’s future, while the Fiber Broadband Association and others have said fiber buildout is the best, most scalable technology.

The last mile, where the cable physically attaches to the home or business, was said at the Digital Infrastructure Investment conference this week to be a goal for broadband expansion.

But Simington said that while fiber is a “robust technology,” there’s a chunk of Americans that may not want it.

“I’m going to go out on a limb and say that there are some users who are not particularly interested in fiber,” Simington said. “That might be people who are, for example, device-only users and they don’t want a home broadband connection — that’s about 20 percent of the national population (of broadband users), although the question of want is sort of up in the air.

“Obviously to a person who is device-only, the only use that fiber would have would be to provide hotspot. And if you’re spending your entire day out and about working, what matters to you is having adequate wireless coverage in your area,” he added.

Simington touches on Universal Service Fund

Modernizing the Universal Service Fund has been one of the hot topics for broadband this year. The fund, which extends basic telecom services to all Americans, has been called unsustainable due to its reliance on shrinking voice revenues.

Some have suggested that the fund’s reliance be wholesale replaced with general taxation from Congress, while others have said that the fund’s revenue base should be extended to include the increasing broadband revenues.

Simington prefaced his comments by saying he didn’t want to get ahead of Congress, which would set the parameters of a new regime, but raised previous recommendations – including from FCC Commissioner Brendan Carr – that part of the money can come from big technology companies, like Facebook and Google.

“We might also say that there are companies that have built their model on there being universal broadband and have been the beneficiaries of the buildout without having to do much to contribute to it…that’s something that has been raised on both sides of the aisle,” he said.

He added that another approach “would simply be to say that broadband is essentially the equivalent of a telephone service back in the day and therefore we are going to put it on everyone’s broadband bill instead of on the relatively small installed base of phone line subject to the USF. That would certainly be one approach. It would smooth things out somewhat, it would presumably broaden the base very substantially.”

In any case, Simington said the USF is “absolutely vital” and that it’s failure would be “at minimum…immensely disruptive.”

Spectrum strategies and future technologies  

In his roughly hour-long chat, Simington touched on a myriad of other issues before the FCC, including the future of satellite technologies, spectrum strategies, and funding for programs to deliver telecommunications services to all Americans.

The commissioner noted that the FCC is prioritizing clearing spectrum for technologies including the next-generation 5G networks, and that the agency is looking to “squeeze every drop” of mid-band frequencies for that end. The FCC has already held a number of auctions for mid-band spectrum, including its massive C-Band auction.

FCC Acting Chairwoman Jessica Rosenworcel said earlier this year that the mid-band spectrum is a priority for the agency over millimeter wave spectrum to close the digital divide.

Simington also said spectrum sharing will increase as technological advances are made. The FCC is fielding comments about how to handle the 12 GHz spectrum band, which is effectively pitting satellite providers who say it can’t be shared and 5G providers who say that it can.

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