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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

FCC Seeks Comment on Higher Broadband Speeds and Increased Security Measures for Certain Carriers

FCC will consider raising the speed standard for certain carriers that receive fixed monthly funding from the agency.

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Screenshot of FCC Commissioner Geoffrey Sparks

WASHINGTON, May 19, 2022 – The Federal Communications Commission voted at its open meeting Thursday to seek comment on enhancing the Alternative Connect America Cost Model program, which would raise speed deployment obligations and align security goals with the Infrastructure, Investment and Jobs Act.

The ACAM program, established in 2016, provides fixed monthly funding to certain carriers serving high-cost and hard-to-reach areas in return for commitments to provide broadband service to all eligible locations.

The ACAM broadband coalition requested that broadband deployment obligations be raised from the current federal standard of 25 Megabits per second download and 3 Mbps upload to 100/20 Mbps, the standard now set by the IIJA that will then be required of ACAM carriers to deliver.

Baseline cybersecurity proposal

The FCC is also requesting comment on whether it should “require A-CAM carriers and carriers receiving high-cost support to have a baseline cybersecurity and supply chain risk management plans.”

Commissioner Geoffrey Sparks indicated that the FCC will focus its efforts on harmonizing ACAM’s modification proposal with cyber security standards indicated in the Broadband, Equity, Access and Deployment program, which is managed by the Commerce Department’s National Telecommunications and Information Administration and that will be disbursing billions in broadband infrastructure funding.

“Networks that are subsidized or built with federal funds must be secure,” Sparks said. “This is evident in the constant barrage of attacks on American networks from hostile state and non-state actors.”

FCC Chairwoman Jessica Rosenworcel, who said the FCC is looking to align its goals with the IIJA, concluded that “this is not the only effort we’re making to ensure that new broadband programs are working hand-in-glove with long-standing FCC efforts.”

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Funding

State Broadband Offices Need to Increase Their Capacity, Improve Data, and Communicate Well

NTIA’s Evan Feinman spoke about what states need to keep in mind as they prepare for BEAD funds.

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Photo of Evan Feinman from AEI

WASHINGTON, May 18, 2022 – The National Telecommunications and Information Administration webinar event on Tuesday focused on the Broadband Equity, Access, and Deployment Notice of Funding Opportunity. The webinar highlighted three important items to keep in mind as states begin to receive money for broadband planning.

The first, according to Evan Feinman, deputy associate administrator for BEAD, was for states to consider your office’s capacity. Each state will receive a minimum of $100 million. Very few states have the human resources required to adequately run a program of this magnitude, he said.

The second is to build up research and data collections of broadband coverage at a state level. The Federal Communications Commission will soon release a new mapping system. It will be necessary, said Feinman, to “engage meaningfully” with these maps using state’s own research and data. Furthermore, states should have the necessary data to engage with internet service providers and the NTIA as they determine who is served and unserved.

Third, states should develop a clear-cut plan for outreach and communication support with stakeholders. Stakeholders include telecom providers, tribal governments, local governments, and community organizations.

The planning step is a great point for stakeholders to become involved in the process, said Feinman. “There is an expectation that lives throughout this program that folks are going to engage really thoroughly and in an outgoing way with their stakeholders.”

See other articles on the NTIA webinars issues in the wake of the Notices of Funding Opportunity on the Broadband.Money community:

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FCC

Treasury Department Joins FCC, USDA and NTIA in Collaborating on Broadband Funding

Agency leaders sign pact to formalize information-sharing on broadband deployment projects.

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Photo of Janet Yellen from January 2018 by the European Central Bank

WASHINGTON, May 13, 2022—Just in advance of the deadline for the release of the funding requirements under the Infrastructure Investment and Jobs act, the four principal federal agencies responsible for broadband funding released an interagency agreement to share information about and collaborate regarding the collection and reporting of certain data and metrics relating to broadband deployment.

The agencies are the Federal Communications Commission, the U.S. Department of Agriculture, the National Telecommunications and Information Administration of the Commerce Department, and the U.S. Department of the Treasury.

The Memorandum of Understanding is the latest development in federal efforts to coordinate high-speed internet spending, and the Treasury Department is the new addition to agreement.

The other three agencies signed a prior memorandum in June 2021 to coordinate the distribution of federal high-speed internet funds. That June 2021 Memorandum of Understanding remains in effect.

The respective Cabinet and Agency leaders announced that their agencies will consult with one another and share information on data collected from programs administered by the FCC, the USDA’s Rural Utilities Service, programs administered or coordinated by NTIA, and Treasury’s Coronavirus Capital Projects Fund and State and Local Fiscal Recovery Fund.

“No matter who you are or where you live in this country, you need access to high-speed internet to have a fair shot at 21st century success. The FCC, NTIA, USDA and Treasury are working together like never before to meet this shared goal,” said FCC Chairwoman Jessica Rosenworcel. “Our new interagency agreement will allow us to collaborate more efficiently and deepen our current data sharing relationships[and] get everyone, everywhere connected to the high-speed internet they need.”

Agriculture Secretary Tom Vilsack said, “When we invest in rural infrastructure, we invest in the livelihoods and health of people in rural America. High-speed internet is the new electricity.  It is necessary for Americans to do their jobs, to participate equally in school learning, to have access to health care and to stay connected.”

“USDA remains committed to being a strong partner with rural communities and our state, Tribal and federal partners in building ‘future-proof’ broadband infrastructure in unserved and underserved areas so that we finally reach 100 percent high-speed broadband coverage across the country.”

“Our whole-of-government effort to expand broadband adoption must be coordinated and efficient if we are going to achieve our mission,” said Alan Davidson, Assistant Secretary of Commerce for Communications and Information and head of the NTIA, the agency responsible for administering the vast bulk of the broadband funding.

“This MOU will allow us to build the tools we need for even better data-sharing and transparency in the future,” he said.

“Treasury is proud to work with our federal agency partners to achieve President Biden’s goal of closing the nation’s digital divide,” said U.S. Treasury Secretary Janet L. Yellen.  “Access to affordable, high-speed internet is critical to the continued strength of our economy and a necessity for every American household, school, and business.”

As part of the signed agreement, each federal agency partner will share information about projects that have received or will receive funding from the previously mentioned federal funding sources.  More information on what the interagency Memorandum of Understanding entails can be found on the FCC’s website.  The agreement is effective at the date of its signing, May 11, 2022.

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