Legislative Activity

This Week’s Hearings:

  • Tuesday, May 20: The House Commerce Subcommittee on Communications and Technology will hold an oversight hearing on the Federal Communications Commission (FCC). FCC Chairman Tom Wheeler is scheduled to testify.
  • Thursday, May 22: The House Commerce Subcommittee on Commerce, Manufacturing and Trade will hold a hearing on legislation to enhance federal and state action against fraudulent patent demand letters.
  • Thursday, May 22: The Senate Judiciary Committee is scheduled to consider the Patent Transparency and Improvements Act of 2013 (S. 1720).

Regulatory Activity

FCC Open Meeting

At its open meeting last Thursday, May 15, the FCC adopted the following items:

  • Open Internet Notice of Proposed Rulemaking (NPRM): The FCC voted 3-2 along party lines to adopt an NPRM proposing new net neutrality rules in the wake of Verizon v. FCC, in which the U.S. Court of Appeals for the District of Columbia Circuit overturned portions of the FCC’s 2010 Open Internet Order. First, the NPRM, which has been met with criticism from many net neutrality advocates, generally proposes to retain the definitions and scope of the 2010 open Internet rules. Second, the NPRM tentatively concludes that the FCC should enhance the transparency rule that was upheld by the court in Verizon v. FCC. Specifically, broadband providers would be required to disclose “meaningful information” about their services, including (1) tailored disclosures to end users; (2) congestion that may adversely impact the experience of end users, including at interconnection points; and (3) information about new practices, such as any paid prioritization, to the extent that it is otherwise permitted. Third, the FCC tentatively concludes that the FCC should adopt the text of the no-blocking rule from the 2010 Open Internet Order with a revised rationale, in order to ensure that all end users and edge providers can enjoy the use of robust, fast Internet access. Fourth, where conduct would otherwise be permissible under the no-blocking rule, the NPRM proposes to create a separate screen that requires broadband providers to adhere to an enforceable legal standard of commercially reasonable practices. In particular, the NPRM asks how harm can best be identified and prohibited and whether certain practices, such as paid prioritization, should be banned altogether. Fifth, the NPRM proposes a multi-faceted dispute resolution process and the creation of an ombudsperson to represent the interests of consumers. Finally, the FCC asks how either Section 706 of the Telecommunications Act of 1996 or Title II of the Communications Act could provide legal authority for the FCC’s net neutrality regulations. The FCC is providing an extended four-month public comment period, with initial comments due July 15 and reply comments due September 10.
  • Incentive Auction Report and Order: The FCC also voted along party lines to adopt rules to implement the planned broadcast television spectrum incentive auction. While the FCC noted that it will continue to seek public input on the final auction procedures, the agency provided a detailed summary of what the process will entail. The rules comprise four distinct parts: (1) the reorganized 600 MHz Band; (2) the incentive auction process and design; (3) the post-auction transition for all incumbents in the 600 MHz band; and (4) post-transition regulatory issues, such as channel sharing.  The order includes a new 600 MHz band plan – consisting of paired uplink and downlink bands composed of 5 MHz building blocks – designed to maximize the value of the spectrum and give large and small bidders a chance to acquire spectrum. To ease the transition period after the auction, the rules also require that repurposed spectrum be cleared within 39 months after the effective date of the repacking process. Each broadcast station will be assigned a transition deadline. In addition, the rules will grandfather broadcast stations that no longer comply with current media ownership rules due to the auction. The FCC also will adopt new interoperability and build-out rules for the new 600 MHz band similar to those of the 700 MHz band.
  • Mobile Spectrum Holdings Report and Order: The FCC adopted a Report and Order revising rules for its mobile spectrum holding policies. With respect to reviews of proposed transactions, the FCC added and removed certain spectrum to the screen to reflect spectrum that is currently suitable and available for mobile broadband. If a proposed transaction would result in a wireless provider holding approximately 1/3 or more of available spectrum licenses in a given market, that transaction will continue to trigger a more detailed, case-by-case competitive analysis. Second, with respect to transactions involving low-band (below 1 GHz) spectrum, the FCC will continue to use a case-by-case review. Aggregation of approximately 1/3 or more of available low-band spectrum will be an “enhanced factor” in the competitive analysis of a proposed transaction. Finally, the FCC set policies for the upcoming AWS-3 auction and broadcast television spectrum incentive auction. In particular, the FCC set no auction-specific spectrum aggregation limits for qualified bidders in the AWS-3 auction. For the broadcast incentive auction, the new rules establish a market-based reserve of no more than 30 MHz of spectrum targeted for providers that hold less than 1/3 of available low-band spectrum in a license area.
  • Wireless Microphones Report and Order:  The FCC adopted a Report and Order that expands Part 74 license eligibility for qualifying users of low power auxiliary stations – including wireless microphones – to include professional sound companies and venues that routinely use 50 or more wireless microphones, where the use of wireless microphones is an integral part of the major productions or events they host. The order concludes that these users generally have the same need for interference protection as other Part 74 licensees, as well as the knowledge and ability to properly manage and use wireless microphones. Wireless microphone users outside the parameters established by the order may continue to operate their stations but must do so on an unlicensed basis.