Rosenworcel, Clyburn Object to Proposed Section 7 Rules

Rosenworcel dissented, saying the FCC tried a similar approach in the 1990s with the failed Pioneer’s Preference Program. “We should have learned a lesson,” she said. “The FCC is poorly equipped to identify whether a proposed technology or service is in fact, new. That’s what makes the lack of any meaningful guidance in this rulemaking troubling.” The proposed rules are also ripe for abuse and don’t recognize that “genius takes time,” she said. New forms of communications raise novel questions, she said. “They rarely fit into existing regulatory paradigms. They often raise issues of classification and pose interference challenges.”

Clyburn questioned the need for the notice. “The absence of procedural rules to implement Section 7 has not impeded innovation in the technology and communications industries,” she said. She partially dissented because of concerns the rules wouldn’t require a commission-level vote at the request of a single commissioner. “This customary practice is an important check on new procedures that have the potential to adversely impact consumers, competition and innovation,” she said.

Commissioner Mike O’Rielly supported the notice, saying the FCC should impose a shot clock for decisions on other applications. “For now, this notice will start a worthwhile discussion,” he said. The NPRM also raises questions about how much staff should do under delegated authority, he said. “No one really knows what could be filed under … these procedures,” he said. “Commissioners appropriately should have a role.”

Pai took on both Democrats. Rosenworcel complained the item wasn’t workable, but no suggested changes were offered when the item was on the eighth floor, he said. “Nor was [a plan] offered during the many years in which the previous majority had a chance to implement this law,” he said. “Abstract ideas offered at the 11th hour are nice, but factual suggestions and a meaningful willingness to work in good faith are even nicer.”

Rosenworcel said after the meeting she didn’t offer suggestions for changes because she was fundamentally opposed to the NPRM. “We decided not to engage and to offer substantial edits,” she said.

“Today, we make up for lost time,” said Commissioner Brendan Carr. “There’s much the commission can do to encourage innovation and this is a solid step in the right direction.”

Meeting Notebook

Commissioners' unanimous approval Thursday of the draft NPRM on mid-term equal employment opportunity reports -- as expected (see 1802160024) -- saw O'Rielly briefly rebuking colleagues for last-minute edits. O'Rielly said the Form 397 material is now available in stations' public files, making the form irrelevant and so the filing requirement isn't "the right outcome." He said it's inappropriate "to hijack this item" to tackle unrelated issues, and there's a lack of "common courtesy" from colleagues when his office reaches out to make sure there are no issues with the item, only to find out at 5 p.m. Wednesday edits are in the works. "That is not right," said O'Rielly, saying in the future, he plans to oppose edits from colleagues not initiated at least 24 hours before the meeting. Clyburn said last week's talk with Common Cause about the item (see 1802200059) brought up questions about compliance practices to ensure the FCC is enforcing EEO rules effectively. Those questions seeking comment about the enforcement record, how it can improve enforcement and whether the elimination of Form 397 will affect enforcement were added to the item, she said. She didn't comment later. Rosenworcel said there can be last-minute disagreements and negotiations, and “we should be open to those things and not impose artificial deadlines.” She said the rulemaking "misses the mark" by focusing on reducing filing burdens and not focusing on EEO policies. She hopes the rulemaking could lead to modernized reporting duties.

Rosenworcel said Thursday she has "deep concerns" about Sinclair's sharing agreement that would see Chicago, New York and San Diego stations put into a divestiture trust (see 1802210062). Such sharing agreements are useful in small markets, where stations can run greater risk of shutting down, but "inherently more complex and difficult" in major markets, she said. She called it "curious" Pai last year rescinded 2014 FCC guidance on such sharing agreements and how it would assess them (see 1702030070). "I wonder how those two things are related," she said. Asked about Sinclair's sharing proposal, the Republican commissioners said they are reviewing it. Rosenworcel agrees with any inspector general review of Pai's actions on rulemakings that have benefited Sinclair. She said she hasn't talked with the IG. “Once again, Commissioner Rosenworcel has her facts wrong," an FCC spokesman emailed, adding that the agency proposing the largest fine ever against Sinclair for violations of the agency’s sponsorship identification rules (see 1712210042) "certainly didn’t benefit that company." Pai "has had a consistent position on [the shared service agreement] guidance at issue since it was issued way back in 2014,” the representative said.

Members approved 5-0 Thursday an order addressing various petitions for reconsideration of Mobility Fund II rules. The order clears the way for an MF-II auction, which will provide up to $4.53 billion in high-cost support over 10 years to extend high-speed mobile voice and broadband coverage to unserved and underserved areas across the U.S. The order clarifies the collocation requirement for MF-II applies to all newly constructed towers (see 1802010042). It also offers companies that want to bid an easier path to obtaining a letter of credit. But the FCC otherwise turned down requests for changes to the rules. “I have pushed to make this auction happen ever since the completion of Mobility Fund Phase I, so I am pleased that this item finally clears the decks of the last disputed policy details,” said Clyburn, regretting the rules weren’t revised to allow for a small business bidding credit. Pai noted he made rural broadband deployment his top focus: “Today, we take weedy but important steps toward addressing that priority.” The FCC should have front-loaded MF-II support “to better match initial capital outlays,” the Rural Wireless Association said. “Carriers will have substantial up-front deployment costs at the beginning of the support term. While carriers can take out loans to cover the deployment costs and then seek reimbursement, doing so comes at a price.” RWA said the FCC should have provided more money for the fund.

The FCC unveiled a new interactive national broadband map to help policymakers and others figure out the extent to which areas have high-speed internet access and competition, or not. Commissioners welcomed the update, with Pai calling it a "really incredible tool," though Democrats said the map and data need further improving. The cloud-based map of fixed (fiber, DSL, cable, satellite, fixed wireless and other) service deployment can be updated more frequently and has various other improvements over a previous platform, said a release. NTIA created the map seven years ago and the FCC took it over in 2015, said Wireline Bureau Chief Data Officer Steve Rosenberg. He said the new display uses December 2016 data from provider Form 477 filings, with 2017 data expected to be incorporated before summer. Users can pull up maps and data on broadband availability and service -- by providers, technologies and speeds -- for the nation, states, congressional districts, counties and census blocks, he said. O'Rielly noted high-cost USF providers are reporting more-granular, geo-coded broadband data to Universal Service Administrative Co., and he voiced interest in using that data to improve the tool. Rosenberg said the FCC is working with USAC on its version and is looking at how the two data sets could be joined, though there are challenges. He said USAC is "capable" when O'Rielly voiced concern about a "flop." Clyburn said the map was only as good as the data on which it's based, and called for improving Form 477 data; otherwise, the map just puts "lipstick on a pig." Rosenworcel called it a good start but said shortcomings must be addressed, including the need to incorporate mobile data. She said the system has errors, including on what's offered where she lives. She said the FCC should use crowdsourcing to channel public input to improve the map, and invited feedback at broadbandfail@fcc.gov. Carr told reporters he's for collecting more data, as long as it's not bad data. Rosenberg said staff was looking into crowdsourcing, but that raises technological and Paperwork Reduction Act issues.

Commissioners voted 5-0 to scrap payphone compensation audit, reporting and other rules that the agency said are outdated. The audit rules ensure that long-distance and other carriers handling payphone-originated calls compensate payphone providers fairly, said a release. With the rise of mobile phones, payphones dropped from 2.1 million in 1999 to fewer than 100,000, and "no complaints over improper compensation have been filed in recent years as clearinghouse vendors act as intermediaries between payphone providers and connecting carriers," it said. "The record clearly showed that, because of the dramatic decline in payphone revenues, the fixed costs of conducting audits and certifications outweighed any benefits associated with the regulations," Pai said. Carr said the audits sometimes cost hundreds of thousands of dollars. One provider reported audit costs were 18 times what it pays to payphone companies, the release said. Closely tracking a draft summary, Wireline Bureau attorney Michele Berlove said the order would "eliminate the payphone call tracking system audit and associated reporting requirements"; "permit a company official, including but no longer limited to the chief financial officer, to certify that a completing carrier’s quarterly compensation payments to payphone service providers are accurate and complete"; and "eliminate expired interim and intermediate per-payphone compensation rules that no longer apply to any entity." O'Rielly would have "gone further" in deregulating but hopes the FCC prunes more rules during its next biennial review starting later this year. AT&T (here) and USTelecom (here) praised the action.

Democrats backed the payphone item but also sought inmate calling service actions. Rosenworcel said payphones remain essential in prisons, but the price of an individual inmate call can be as much as what others pay for unlimited monthly plans. "This agency should be ashamed," she said, noting it took the FCC more than a decade to address "exorbitant rates" targeted by a petition. "Last year, the FCC gave up and refused to even defend this effort in court. There is something profoundly wrong here. The moral compass of this agency is broken. We can fix this problem." Clyburn said: "The one population in our country that still uses payphones daily, has no omnibus federal protection from exorbitant rates and fees. This commission has the ability to act, but to date, has done nothing. That needs to change."

Pai said he's reviewing the local number portability administrator transition and trying to figure out what to do after stakeholders indicated they are deadlocked over a contingency plan to roll back operations to incumbent Neustar if iconectiv's new systems initially fail (see 1802200051). Answering a reporter's question, Pai couldn't yet say what the next steps will be, as a scheduled April 8 initial regional system cutover from Neustar to iconectiv approaches.