Legislative Activity

Bill Introduced to Reform FCC Rulemaking

On February 2, Rep. Bob Latta (R-OH) introduced a bill, H.R.655,that would reform the Federal Communications Commission’s (FCC’s) rulemaking processes. Specifically, the bill requires an analysis of the costs and benefits during the rulemaking process and creates certain presumptions regarding regulatory forbearance and biennial regulatory review determinations. The bill was referred to the House Committee on Energy and Commerce.

House Members Push to Block Warrantless Harvest of Emails and Location Data

On February 2, Reps. Zoe Lofgren (D-CA), Suzan DelBene (D-WA), and Ted Poe (R-TX) introduced H.R.656, the Online Communications and Geolocation Protection Act. The bill updates the 1986 Electronic Communications Privacy Act (ECPA) by requiring government agencies to obtain a search warrant, supported by probable cause, prior to intercepting or compelling disclosure of electronic communications or geolocation data. Under the current version of the ECPA, law enforcement may access email and other electronic content without a warrant if the information is more than 180 days old by issuing a subpoena to the service provider. The bill would also bar the use of geolocation data that was obtained unlawfully and create penalties if law enforcement improperly intercepted or disclosed a customer’s location data. The bill has been referred to the House Judiciary Committee and the Permanent Select Committee on Intelligence.  Sens. Patrick Leahy (D-VT) and Mike Lee (R-UT) recently stated that they would be introducing companion legislation in the Senate.

This Week’s Hearings:

  • Wednesday, February 11: The Senate Commerce, Science, & Transportation Committee will hold a hearing entitled The Connected World: Examining the Internet of Things.

Regulatory Activity

FCC Chairman Wheeler Proposes Title II Regulation for Broadband Internet Access

On February 4, the FCC released a Fact Sheet outlining FCC Chairman Wheeler’s forthcoming Order containing new rules to preserve and protect the Open Internet.  The FCC will vote on the Order at its February 26 Open Meeting. Chairman Wheeler’s proposal would reclassify “broadband internet access service” (retail broadband service) under Title II of the Communications Act (Title II) while forbearing from (i.e., not applying) certain provisions not relevant to modern broadband service. It further clarifies that the service that broadband providers make available to “edge providers” (i.e., Internet content and application providers) is also a Title II telecommunications service.

The proposal rests on two sources of legal authority: (1) Title II, and (2) Section 706 of the Telecommunications Act of 1996. It cites the D.C. Circuit’s decision in Verizon v. FCC to support the proposition that Section 706 is an independent grant of authority that supports adoption of Open Internet rules. Furthermore, it states that Title II’s “just and reasonable” standard and the D.C. Circuit’s finding that Section 706 authorizes the FCC to protect the “virtuous circle” of network innovation and infrastructure development provide standards for the FCC to protect Internet openness.  The new rules would apply to mobile broadband, and the draft Order rebuts claims that Title III of the Communications Act does not allow classification of mobile broadband as a telecommunications service.

The Fact Sheet states that an Open Internet will promote consumer choice, foster innovation and competition, allow free expression to blossom, and give innovators predictable rules of the road. In brief, the proposal contains the following principles and rules:

  • No Blocking. Broadband providers may not block access to legal content, applications, services or non-harmful devices.
  • No Throttling. Broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services or devices.
  • No Paid Prioritization. Broadband providers may not favor some lawful Internet traffic over other traffic in exchange for consideration (i.e., no fast lanes). This also bans Internet Service Providers (ISPs) from prioritizing content and services of their affiliates.
  • Standard for Future Conduct. The proposal would create a general Open Internet conduct standard that ISPs cannot harm consumers or edge providers.
  • Greater Transparency. Enhanced transparency rules.
  • Reasonable Network Management. Other than paid prioritization, an ISP may take reasonable measures to manage the technical and engineering aspects of their networks. The FCC’s proposed standard for reasonable management would take account of the particular engineering attributes of the technology involved. However, the network practice must be primarily used for and tailored to achieving a legitimate network management–and not commercial–purpose.
  • Broad Protection. Protections to ensure that services that do not go over the public Internet (and therefore would not be subject to Title II) do not undermine the Open Internet.
  • Interconnection. The FCC will have the authority to hear complaints and take enforcement action if it determines that the interconnection activities of ISPs are not just and reasonable.
  • Provisions of Title II that will apply: (1) No “unjust and unreasonable practices” under Sections 201 and 202; (2) consumer complaint investigations under Section 208 and related enforcement provisions under Sections 206, 207, 209, 216 and 217; (3) consumer privacy protections of Section 222; (4) fair access to poles and conduits under Section 224; (5) protections for persons with disabilities under Sections 225 and 255; and (6) universal service fund support through partial application of Section 254.

Certain provisions of Title II will be subject to forbearance, meaning that they will not apply:

  • Rate Regulation. Broadband providers will not be subject to tariffs or other forms of rate approval, unbundling, or utility regulation.
  • Universal Service Contributions. The draft Order does not require broadband providers to contribute to the Universal Service Fund under Section 254.
  • Furthermore, the proposal will not impose, suggest or authorize any new taxes or fees, such as Universal service fees, and affirms that the congressional moratorium on Internet taxation applies to broadband.

Finally, according to the Fact Sheet, Chairman Wheeler’s proposal will modernize Title II, encouraging ISPs to invest in their networks.  The proposal will not include any utility-style rate regulation, tariffs, last-mile unbundling, or burdensome filing requirements or accounting standards.

FCC Announces Tentative Agenda for February 26 Open Meeting

On February 5, the FCC announced that the following two items will tentatively be on the agenda for the February 26 Open Meeting:

  •    Open Internet: The FCC will consider a Report and Order on Remand, Declaratory Ruling and Order to respond to the Verizon court’s remand and adopt new Open Internet rules.
  •    Community Broadband: The FCC will consider a Memorandum Opinion and Order addressing petitions asking that the FCC preempt provisions of state laws in North Carolina and Tennessee that restrict the abilities of communities to provide broadband service.

The Open Meeting will be held at 10:30 a.m. in Room TW-C305 of the FCC headquarters and streamed live at FCC.gov/live.

FCC Releases New Rules to Ensure Location Accuracy for Emergency Calls

At its January 29 Open Meeting, the FCC adopted new rules to enhance the ability of emergency responders to accurately identify the location of wireless 911 callers from calls made indoors. The new rules, which were released February 3, establish timeframes for Commercial Mobile Radio Service (CMRS) providers to improve wireless 911 location accuracy and are summarized here:

  • Horizontal Location: CMRS providers must be able to provide a dispatchable location (i.e., an address plus sufficient information to identify the location of the caller in a building) or x and y coordinates within 50 meters for: (1) 40 percent of all wireless 911 calls within 2 years, (2) 50 percent of all wireless 911 calls within 3 years, (3) 70 percent of all wireless 911 within 5 years, and (4) 80 percent of all wireless 911 calls within 6 years.
  • Vertical Location: CMRS providers must (1) within 3 years, make barometric data available to emergency responders and develop a z-axis accuracy threshold for FCC approval, (2) within 6 years, deploy dispatchable location or FCC-approved z-axis technology in the top 25 Cellular Market Areas (CMAs), and (3) within 8 years, deploy dispatchable location or FCC-approved z-axis technology in the top 50 CMAs.

To ensure compliance, the new rules require that: (1) within 18 months of the effective date of the rules, CMRS providers must begin to submit quarterly live 911 call data in six cities, (2) emergency responders are entitled to obtain live call data from CMRS providers and seek FCC enforcement of the location accuracy rules, and (3) CMRS providers must submit initial and periodic reports on their plans and progress for implementing the location accuracy rules. Non-nationwide CMRS providers are subject to the same requirements but are afforded more time for certain compliance deadlines.

FCC Seeks Comments on the Impact of its ORBIT Act Privatization Efforts

On February 4, the FCC issued a Public Notice seeking comment on the FCC’s progress in carrying out the directives of the Open-Market Reorganization for the Betterment of International Telecommunications Act (ORBIT Act). Comments are due March 5, and reply comments are due March 20. According to the Public Notice, the purpose of the ORBIT Act is to “promote a fully competitive global market” for satellite communications services by fully privatizing INTELSAT and Inmarsat. In particular, the FCC seeks comment on the impact of privatization on U.S. industry, jobs, and industry access to the global marketplace. Comments will be reflected in the FCC’s report to Congress, which the FCC is required to provide annually under the ORBIT Act. The FCC’s 2014 ORBIT Act Report was submitted to Congress on June 11, 2014.