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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).

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FCC

FCC Institutes ACP Transparency Data Collection

The FCC stated that it will lean on the newly mandated broadband nutrition labels.

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Photo of people working on computers, cropped, in 2011 by Victor Grigas

WASHINGTON, November 23, 2022 – The Federal Communications Commission last week adopted an order that mandated annual reporting from all providers participating in the Affordable Connectivity Program, a federal initiative that subsidizes the internet-service and device costs of low-income Americans.

The FCC order establishing the ACP Transparency Data Collection, not released until Wednesday, requires ACP-affiliated providers to disclose prices, subscription rates, and other plan characteristics on yearly basis. The FCC stated that it will lean on the newly mandated broadband nutrition labels, which, it says, will ease regulatory burdens for providers.

The FCC created the Transparency Data Collection pursuant to the statutory requirements of the Infrastructure, Investment and Jobs Act of 2021. The commission adopted a notice of proposed rulemaking in June.

Earlier this year, T-Mobile endorsed the nutrition-label method of collection. Industry associations including IMCOMPAS and the Wireless Internet Service Providers Associations warned the FCC against instituting excessive reporting burdens.

“To find out whether this program is working as Congress intended, we need to know who is participating, and how they are using the benefit,” said Chairwoman Jessica Rosenworcel.  “So we’re doing just that.  The data we collect will help us know where we are, and where we need to go. We’re also standardizing the way we collect data, and looking for other ways to paint a fuller picture of how many eligible households are participating in the ACP.  We want all eligible households to know about this important benefit for affordable internet service.”

Although the ACP is highly touted by the FCC, the White House, and industry experts, there is evidence the fund has been exploited by fraudsters, according to a watchdog. In September, the FCC Office of Inspector General issued a report that found the ACP handed out more than $1 million in improper benefits. In multiple instances, according to the OIG, the information of a qualifying individual was improperly used for hundreds of applications, achieving payouts of hundreds of thousands of dollars.

Last month, Rep. Frank Pallone, D-N.J., contacted 13 leading internet service providers, requesting details on alleged fishy business practices connected to the ACP and its predecessor, the Emergency Broadband Benefit Program.

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Broadband's Impact

Federal Communications Commission Mandates Broadband ‘Nutrition’ Labels

The FCC also mandated that internet service provider labels be machine-readable.

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Federal Communications Commission Chairwoman Jessica Rosenworcel

WASHINGTON, November 18, 2022 – The Federal Communications Commission on Thursday afternoon ordered internet providers to display broadband “nutrition” labels at points of sale that include internet plans’ performance metrics, monthly rates, and other information that may inform consumers’ purchasing decisions.

The agency released the requirement less than 24 hours before it released the first draft of its updated broadband map.

The FCC mandated that labels be machine-readable, which is designed to facilitate third-party data-gathering and analysis. The commission also requires that the labels to be made available in customers’ online portals with the provide the and “accessible” to non-English speakers.

In addition to the broadband speeds promised by the providers, the new labels must also display typical latency, time-of-purchase fees, discount information, data limits, and provider-contact information.

“Broadband is an essential service, for everyone, everywhere. Because of this, consumers need to know what they are paying for, and how it compares with other service offerings,”  FCC Chairwoman Jessica Rosenworcel said in a statement. 

“For over 25 years, consumers have enjoyed the convenience of nutrition labels on food products.  We’re now requiring internet service providers to display broadband labels for both wireless and wired services.  Consumers deserve to get accurate information about price, speed, data allowances, and other terms of service up front.”

Industry players robustly debated the proper parameters for broadband labels in a flurry of filings with the FCC. Free Press, an advocacy group, argued for machine-readable labels and accommodations for non-English speakers, measures which were largely opposed by trade groups. Free Press also advocated a requirement that labels to be included on monthly internet bills, without which the FCC “risks merely replicating the status quo wherein consumers must navigate fine print, poorly designed websites, and byzantine hyperlinks,” group wrote.

“The failure to require the label’s display on a customer’s monthly bill is a disappointing concession to monopolist ISPs like AT&T and Comcast and a big loss for consumers,” Joshua Stager, policy director of Free Press, said Friday.

The Wireless Internet Service Providers Association clashed with Free Press in its FCC filing and supported the point-of-sale requirement.

“WISPA welcomes today’s release of the FCC’s new broadband label,” said Vice President of Policy Louis Peraertz. “It will help consumers better understand their internet access purchases, enabling them to quickly see ‘under the hood,’ and allow for an effective apples-to-apples comparison tool when shopping for services in the marketplace.”

Image of the FCC’s sample broadband nutrition label

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Funding

After FCC Map Release Date, NTIA Says Infrastructure Money to Be Allocated by June 2023

The NTIA urged eligible entities to submit challenges to the FCC’s broadband map by January 13, 2023.

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Photo of NTIA Administrator Alan Davidson, in January 2015 used with permission

WASHINGTON, November 10, 2022 – The National Telecommunications and Information Administration said Thursday its intention to announce allocations from the $42.5-billion Broadband Equity, Access, and Deployment program by June 30, 2023.

The announcement comes on the heels of the FCC announcing Thursday that a preliminary draft of the commission’s national broadband map will be released and available for public challenge on November 18, which was required for the NTIA to begin moving the broadband infrastructure money out of the door to the states. The challenge process is the primary mechanism to correct for errors in the map’s data.

Don’t miss the discussion about “What’s the State of IIJA?” at Digital Infrastructure Investment–Washington on November 17, 2022: Nearly one year into the passage of the Infrastructure Investment and Jobs Act, what is its state of implementation? How are state broadband offices feeling about the pace of the National Telecommunications and Information Administration? What are they doing to prepare for it? How big of a jolt to the broadband industry will the IIJA be?

“The next eight weeks are critical for our federal efforts to connect the unconnected,” said NTIA Administrator Alan Davidson. “The FCC’s upcoming challenge process is one of the best chances to ensure that we have accurate maps guiding us as we allocate major…awards in 2023. I urge every state and community that believes it can offer improvements to be part of this process so that we can deliver on the promise of affordable, reliable high-speed internet service for everyone in America.”

To ensure public input is considered in the allocation process, the NTIA urged eligible entities Thursday to submit challenges to the FCC’s national broadband map – the dataset that will shape the distribution of BEAD grants – by January 13, 2023.

To promote a robust challenge process, the NTIA said it will offer technical assistance to state governments, informational webinars to the public, and regular engagement with state officials to identify and resolve issues.

Clarification: A previous headline said the NTIA would “finalize” money by June 2023. In actuality, the NTIA will initially announce BEAD “allocations” by June 2023, then eligible entities must submit proposals to the NTIA for approval before the money is fully disbursed, which could be sometime after June 2023. 

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