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Chairs Of FCC and FTC Point To Achievable Common Grounds Amid Political Discord

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Screenshot taken from FCBA event

March 30, 2021 – With a change in administration comes a change in the party leadership structure for federal agencies, but that won’t sway the bipartisan tradition at the Federal Communications Commission and Federal Trade Commission, according to the acting chairs of those agencies.

At a Federal Communications Bar Association event held Monday to celebrate Women’s History Month, the all-female panel of leaders spoke on the important bipartisan work their commissions were doing during the new Biden administration’s first few months in office.

“When we all work together, we go further and get more done,” Jessica Rosenworcel, Acting Chairwoman of the FCC, said in response to a question about political discord. Turning down the volume and finding ways to work in harmony will lead to success, she said.

Rebecca Kelly Slaughter, acting chairwoman at the FTC, expressed similar sentiment. There is a difference between strongly-held policy disagreements and personal vitriol, she said. Although we’ve had disagreements on policy, we maintain good relationships, she said, and those relationships are important to identifying where consensus is possible.

Both the FCC and FTC are comprised of five commissioners, selected by the president and approved by the senate. Three of the five members always share the current president’s political party. Because Joe Biden won the 2020 election, the majority party on each commission shifted from Republican to Democrat.

Challenges ahead

That’s not to say there aren’t disagreements, however, and how we see remedies and approach rulemaking at the FTC is “likely to change,” Slaughter said. She focused on a “whole-of-agency” approach to the challenges that have arisen from the COVID-19 pandemic, entering on racial justice and equity. Focus on COVID response and racial justice don’t need to be mutually exclusive, she said.

Slaughter added other challenges to that list, including ensuring small businesses have a fair competitive opportunity against big companies, issues with data privacy and telehealth, and fraud.

Congress has not been quiet about giving the FCC new responsibilities and challenges, Rosenworcel said, and we need to make those challenges a priority. Over $10 billion in funding has been appropriated for broadband programs for the agency to disburse, including the new Emergency Broadband Benefit Program and the Emergency Connectivity Fund. “We’re going to make a meaningful dent in the digital divide,” she said.

For Evelyn Remaley at the National Telecommunications and Information Administration, they have the challenge of distributing three new grant programs funded through the Consolidated Appropriations Act, the Broadband Infrastructure Program, the Tribal Broadband Connectivity Program, and the Connecting Minority Communities Program, aimed at expanding broadband for underserved Americans, including tribal lands, rural areas and minority communities.

A focus on female leadership

As a key component of the FCBA event was celebrating Women’s History Month, the three panelists were asked what it means to be a woman in their leadership positions.

Working during the pandemic has blurred the lines between work and home life, Remaley said. Men and women need to find ways to balance work and home and to be more productive in both, she said.  We need to continue expanding our definition of leadership and bring in more diverse voices, she said, and that’s not unique to just women — men recognize this as well in leadership.

Slaughter, who gave birth to a child within days of getting her job at the FTC in 2018, said it’s an exciting challenge to balance work and family life, and provided her a unique opportunity to exemplify that the FTC is a workplace that values personal life as well. Having a personal life outside of work is important, and contributes to being a better at work, she said.

Being the only female commissioner at the FCC, that’s something you notice, Rosenworcel said. She expressed desire to see greater diversity at the agency, saying that more diversity leads to better decisions. She quoted Shirley Chisholm, the first black woman elected to Congress in 1968: “If they don’t give you a seat at the table, bring a folding chair.” That’s great professional advice, Rosenworcel said.

Both Remaley and Slaughter said they thought of the many unheard-of women who have paved the way for them to be where they are now, including Slaughter’s grandma who worked as a secretary in the senate and whom she had never met.

FCC

Broadband Labels Should Include Practical Applications of Internet Packages: MIT Researchers

The FCC’s broadband label might include the number of movies one can watch at a time with a certain plan.

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Photo of MIT's David Clark used with permission

WASHINGTON, September 19, 2022 – The Federal Communications Commission’s upcoming broadband transparency labels should include “interpretive” information that helps consumers understand the practical implications of their internet performance, such as the number of movies they can watch at a time, according to researchers Friday at the Massachusetts Institute of Technology.

As directed by Congress in the Infrastructure, Investment and Jobs Act, the FCC is currently working on a “label” service providers will be required to fulfill that features details of broadband service plans, including monthly price, typical download and upload speeds, latency, packet loss, and other relevant information. The labels, which must be finalized by November, are meant to help consumers make a more informed decision when choosing an internet plan.

Because consumers are often unaware of how aspects of network performance affect the user experience, David Clark and Sara Wedeman of MIT’s Computer Science and Artificial Intelligence Laboratory said Friday at the TPRC 2022 conference that simply displaying technical metrics – e.g., an average upload speed of 20 Megabits per second (Mbps) – is unlikely to facilitate better user decision making.

The pair recommends the FCC adopt and require of service providers the equivalent of a nutritional label’s daily value field: a “Satisfactory Service Label.” Just as the daily value field makes complicated nutritional information actionable for the average consumer, the SSL will clarify how the technical metrics of an internet package affect performance, Clark said.

“One can propose a somewhat simple SSL for download speed by noting that for each simultaneous HD stream, no more than…about 9 mb/s is necessary. One could probably watch 3 HD streams at once over a 25 mb/s service,” said the paper on which Clark and Wedeman’s TPRC presentation was based.  

Difficulties in the labeling process

Paroma Sanyal and Divya Goel of the consulting firm Brattle Group also presented a paper on broadband labeling at TPRC. They argued that mandatory labeling will likely lead to lower prices and higher quality internet plans but also presents economic and legal risks if implemented incorrectly. Sanyal said that the standardized labeling regimes often introduce compliance costs and harm innovation, recommending instead a simple, clear system to minimize the emergence of unintended consequences.

Sanyal’s and Goel’s paper – coauthored with the Brattle Goup’s Coleman Bazelon – argues that the FCC’s current guidance doesn’t provide a specific definition of “typical” network performance, leaving much interpretation to broadband providers.

The paper also notes a multitude of technical factors outside the provider’s control that could affect performance. “For fixed broadband factors such as the vintage of equipment on the consumer premises…for mobile broadband, the vintage and type of handsets, weather, and location of the consumer are important,” the paper reads.

“As an illustration, typical speeds in a DC neighborhood may not be the typical speeds in a Baltimore neighborhood, which begs the question of how geographically targeted such labels should be, and, of course, the associated costs,” the paper adds.

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FTC

FTC Forum Hears Evidence that U.S. Should Follow European Union Privacy Model

The agency is proposing to use its own authority to regulate tech platforms for their ‘commercial surveillance’.

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Photo of Digital Content Next CEO Jason Kint from C-SPAN

WASHINGTON September 15, 2022 – The Federal Trade Commission should consider adopting standards established by the European Union’s General Data Protection Regulation to force Big Tech platforms to consent to the use of their user’s personal information, according to the CEO of a digital content trade organization.

The FTC proposed last month to use its authority under Section 18 of the FTC Act to bring “commercial surveillance” – the act of entities collecting personal information and selling them to third-party data brokers – under its authority to further regulate technology platforms. Section 18 is a statute of the FTC Act that grants the commission the authority to implement trade regulation rules for businesses that use tactics that are considered “unfair” or harmful to consumers.

Digital Content Next CEO Jason Kint said during an FTC public hearing on the matter on September 8 that the EU’s GDPR model provides an established practice of requiring companies and organizations to get consent to the use of their data in these contexts.

“Having a pop-up come up [for consent] every time you visit the site…that’s entirely in line with users’ expectations,” Kint said. To comply with GDPR principles, websites shown to users in the United States must ask visitors if they consent to the collection of their data in part to cater certain products to them.

“The user doesn’t want it to happen where their data is being tracked by third parties,” Kint said.

“So, if you’re the party that they’re choosing to interact with for service, providing them that data is very different.”

In August, the FTC announced an rulemaking to consider commercial surveillance as a Section 18 violation of the FTC Act. It its notice seeking comment, the FTC asked questions about what companies should disclose, who would administer the disclosure agreements, and if the FTC should impose limitations on the mechanisms companies use to hide their surveillance practices.

On July 20, the Senate Commerce Committee passed comprehensive privacy legislation a restricting collection and transfer of personal data of U.S. citizens without consent.

The measure has not yet passed the House, but in responding to the August announcement, Energy and Commerce Committee Chairman Frank Pallone, D-N.J., said that it is the responsibility of Congress, not the FTC, “to pass comprehensive federal privacy legislation.”

There are currently more than 120,000 comments on this issue. The FTC is still collecting public statements on this issue until October 21.

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FCC

Library and Education Technology Groups Pan FCC Proposal for New E-Rate Procurement

Responders fear that updating the E-Rate process will increase complexity for applicants.

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Photo of John Windhausen of Schools, Health & Libraries Broadband Coalition

WASHINGTON, August 26, 2022 – Responders to the Federal Communications Commission’s proposed rulemaking to force internet service providers to bid for school and library services through a new portal expressed concern that the proposal would needlessly complicate the process.

The FCC’s E-Rate program supplements schools and libraries securing affordable telecommunications and broadband services through the Universal Service Fund. Earlier this year, the FCC released a proposal that would “streamline program requirements for applicants and service providers, strengthen program integrity… and decrease the risk of fraud, waste, and abuse.”

The proposal suggests implementing a central document repository, called a bidding portal, through which internet service providers would submit bids to the program administrator, the Universal Service Administrative Company, instead of directly to applicants at a state and local level. Currently, libraries and schools announce they are seeking services and service providers apply directly to those institutions.

With the adoption of this proposal, applicants would be required to submit competitive bidding documentation that would enable applicants to compare competing bids and the USAC would establish timeframes on when applicants are able to review the bids that providers submit.

The proposal is in response to a September 2020 report by the Government Accountability Office which addressed what the GAO considers the E-Rate program’s key fraud risks. It reported that E-Rate participants could easily misrepresent self-certification statements by violating competitive-bidding rules or processes. These violations could occur without the Commission’s or USAC’s knowledge because they do not have direct access to the bidding information.

The GAO suggested that allowing the USAC direct access to obtain and monitor bidding information would improve security and strengthen program controls.

Proposal widely panned by CoSN and educational technology directors

However, response to the proposal was widely negative, with commenters raising concern that changing the process would needlessly complicate a system that, according to Verizon, is already promoting fair and open bidding on E-Rate contracts.

The Consortium for School Networking, the State Educational Technology Directors Association, and the National School Boards Association claimed that the Commission’s past reliance on state and local procurement requirements has been a success and has not led to an undue amount of fraud and abuse, negating the need to update the process.

Creating a national bidding portal could also interfere with existing state and local bidding requirements and unduly complicate the bidding process, hindering E-Rate participation, said the National Association of Telecommunications Officers and Advisors in its comment to the FCC.

“A bidding portal would interfere with existing state and local bidding and procurement processes, which would likely cause significant issues for applicants and may cause some to have to drop out of the E-Rate program,” read NATOA’s report.

The establishment of a national E-rate bidding portal would be “unnecessary, burdensome and will increase the complexity of, rather than simplify the E-rate program,” agreed South Dakota’s Department of Education in its statement.

National level or local level changes

Since the FCC’s announcement in December, the proposed changes have been subject to much debate. John Harrington, CEO of Funds for Learning, wrote in April that the E-Rate changes would be detrimental, claiming that procurement decisions are best made at the local level, rather than a “one-size-fits-all system.”

Furthermore, John Windhausen, executive director of the Schools, Health & Libraries Broadband Coalition, said in December that the proposal will burden applicants, despite the potential benefits of eliminating at least some forms of fraud. Windhausen claimed that there is not enough evidence to show that a new portal is needed.

However, the proposal has not been universally dismissed. In a comment filed last week, the United States Department of Justice, Antitrust Division, which is responsible for enforcing antitrust laws, expressed support for the proposal saying that it would “enhance the ability of the FCC’s Office of Inspector General to detect and deter fraud in the E-Rate program.”

The DOJ added that the update would allow for more robust enforcement of laws, including investigation and prosecution of antitrust and related crimes that occur during E-Rate procurements. “All responsive service providers and applicants are in a position to complete the additional step,” said the DOJ in response to critics citing undue burden.

The proposal remains in consideration at the FCC.

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