FCC Chairman Pai Proposes New Regulatory Framework for Broadband ISPs, Seeks Comment on Net Neutrality Rules
Sunday, April 30, 2017
In a widely anticipated step, FCC Chairman Ajit Pai has released1 a draft Notice of Proposed Rulemaking (“NPRM”) on the legal framework that governs broadband providers and related net neutrality questions. Most notably from a privacy perspective, the draft NPRM proposes to find that broadband Internet access service is an “information service” under the Communication Act, reversing the 2015 “telecommunications service” classification that had brought broadband providers under the statutory privacy requirements of Title II of that Act. The draft NPRM states that the 2015 reclassification “stripped FTC authority over Internet service providers,” in light of the common carrier exemption in Section 5 of the FTC Act. By reversing the FCC’s prior finding that broadband is a common carrier service, the draft NPRM proposes to “return jurisdiction over Internet service providers’ privacy practices to the FTC, with its decades of experience and expertise in this area.”
The scope of the FTC’s enforcement jurisdiction over non-common carrier activities of communications providers–a category that would include broadband under the NPRM’s proposed framework–was the subject of a recent Ninth Circuit decision2. The draft NPRM points out that the FCC has supported the FTC’s petition for rehearing of that decision, which interpreted the scope of FTC Act’s common carrier exemption in a broad manner.
In addition to undoing the 2015 reclassification, the NPRM would, among other things:
- Propose to eliminate the “Internet conduct standard,” through which the FCC makes case-by-case determinations about whether conduct not covered by bright-line rules is harmful to net neutrality principles (which has included review of practices alternately referred to as “zero rating” or “free data”);
- Solicit comment on whether to retain, modify, or eliminate bright-line rules adopted in 2015 that generally prohibit broadband providers from blocking, throttling, or paid prioritization of lawful content;
- Solicit comment on whether to retain, modify, or eliminate the transparency rule, which requires broadband providers to disclose publicly their commercial terms, network management practices, and network performance; and
- Solicit comment on the sources of legal authority and costs and benefits of net neutrality regulation.
Chairman Pai has asked his fellow Commissioners to vote on the NPRM at the FCC’s next monthly meeting, scheduled for May 18, 2017. If adopted in its current form, the NPRM would set the deadline for comments on July 17, 2017, with reply comments due August 16, 2017.
(C) 2017 Covington & Burling LLP
Lords’ demand for 30Mbps service obligation falls foul of rush to get Digital Economy Act through before general election
A push by peers to secure much faster broadband speeds in hard-to-reach areas has fallen victim to the general election.
A 2020 deadline for the beefed up universal service obligation (USO) to be introduced has also been dropped, after Parliament was wound up three years early. In February, the House of Lords threw out the Government’s flagship plans for the USO, branding them “tinkering without success”, by passing an amendment to the Digital Economy Bill. They demanded the USO specify minimum download speeds of 30Mbps – three times the 10 Mbps pledged by ministers. The amendment would also have legally required the USO to come into force by 2020, a date set out only as an aspiration by the Department for Culture, Media and Sport (DCMS).
It set the stage for a battle in the Commons, where many Conservative MPs in rural areas share the peers’ frustration about relatively slow broadband speeds. But the Lords gave way in order to secure the passage of the Digital Economy Bill before the election. It is also designed to tackle spam email, nuisance calls, ticket touts and to protect children from online pornography. Lord Fox, for the Liberal Democrats, said hopes of creating “a really revolutionary revolution for our digital network to enable the whole country to participate in the digital economy” had been jeopardised.
“Without a requirement for a fast digital delivery, and a date for the arrival of that fast digital network, we will struggle,” he warned.
The DCMS had insisted the requirement for 30 Mbps was not legally enforceable, because of surprisingly low take-up of superfast broadband so far. Although just under 93% of premises could tap into superfast speeds, only around 30% have done so – making it impossible to argue it must be universal, officials have claimed.
The amended act now states that communications watchdog Ofcom must carry out a review of the requirements of the USO once take-up reaches 75%, which could take 10 years on current trends. Also, it no longer states the USO must be in place by 2020, although – subject to the coming Conservative manifesto – that remains the Government’s intention.
Lord Fox added: “We are closing the door on a fresh, shiny new bill which still smells of new paint, but – just as with my house – I cannot help thinking that we will be raising the floorboards on this issue time and again in Parliaments to come.”
Ofcom has said that 1.4 million homes and businesses are still not connected to a “standard” broadband line of 10Mbps.
Rows over a minimum speed threatened to delay progress as BT was unwilling to start planning how to increase broadband services until it had certainty over what was required.
NSW: A Wagga cul-de-sac could be deprived of phone and internet services for three months. A WAGGA cul-de-sac could be deprived of phone and internet services for three months after another “blunder” by the National Broadband Network (NBN).
Dave Wall is furious at the lack of communication he is receiving from NBN. Copper wires delivering high-speed broadband to properties on Quambi Place, Mount Austin have been severed by builders, creating a headache for technicians.
Residents claim the infrastructure was installed just centimetres below the ground, making it a “matter of time” before something went wrong. Dave Wall is furious at the lack of communication he is receiving from NBN in regards to the repair. Mr Wall, who works from home and relies on his high-speed network to make ends meet, claims NBN staff have constantly contradicted one another during the ordeal.
He has been forced to hot-spot from his phone for nine days, and was recently told he and his neighbours may face a 12 week wait for internet.
“It just takes so long to get any proper answers from NBN or get them to do anything at all,” he said.
“One technician told us it would be a matter of days and the next one said it could take up to three months.
“The procedure for trying to get any assistance whatsoever through NBN is just abysmal.”
Mr Wall said he has called NBN three times and they are yet to confirm that the issue has been logged.
“When we had Telstra looking after the infrastructure it was always fixed timely,” he said. The failure is just one in a series of reported NBN shortcomings, driving frustrated residents to breaking point. Wagga’s Aydan Heron was also left without a phone or internet connection for almost 11 weeks, despite making multiple complaints.
Mr Heron claims NBN technicians no-showed an appointment to carry out repairs on damaged copper wires after he took a day off work to let them inside the property.
“The missed appointments are probably the most frustrating thing,” Mr Heron said.
“You take time off work to be home and you wait for them to come and then they’re a no-show.”
A NBN spokeswoman said those with problems should call their service provider.
“This is important because there can often be issues affecting a service that is outside of the network, like equipment, software and how each service provider designs a network,” she said.