Leased Access Rules Change Vote Raises Admin. Law Debate

Approved 5-0 were a modernization of decades-old rules on how first responders and other emergency personnel can get priority access to communications networks and two safe harbors to shield certain telecom providers from liability for the unintended or inadvertent blocking of wanted phone calls, as expected (see 2007150040).

Cases of concurrences leaving the fate of votes in doubt don't come up much at other agencies, with the FCC famous for divided opinions, while they are much rarer at other commissions, emailed University of Colorado Law associate professor Sharon Jacobs.

Pai and Commissioner Mike O'Rielly voted to approve the leased access draft order. Rosenworcel and Commissioner Geoffrey Starks concurred, with Starks saying he disagreed with its assertion the video market clearly no longer supports the need for leased access rules and no market study had been undertaken to back that up.

Also concurring was Commissioner Brendan Carr, criticizing the leased access rules regime as raising First Amendment issues. He said the agency can't eliminate the rules established by Congress but could have adopted a market-based rate structure that would have given cable operators more relief. "We should have gone further," he said. The cable industry also argued the leased access rules aren't constitutional (see 2007090054). The leased access rules regime "is a relic of the past that continues to burden cable operators' speech based on a video marketplace that no longer exists," NCTA said, noting the new rate formula lessens the burden.

After Rosenworcel questioned whether three concurrences affects its status as adopted, Carr twice clarified his vote. He made clear he approved of the item but his concurrence was about going beyond that.

Boizelle said FCC rules are such that a concurrence is a vote to approve and an item can be adopted without three formal approvals. She pointed to the 2010 open internet order and 2014 net neutrality NPRM. "The bottom line is ... it's been adopted," Pai said after the meeting.

The effect of concurrences depends on what each concurrence, emailed George Washington University administrative law professor Richard Pierce. "Thus, for instance, if 2 Commissioners approve of 4 actions and 3 commissioners only approve of 3 of those actions, only 3 actions would be approved," he said. "If three concurring Commissioners agree to take an action but state different reasons, the action is approved."

Jacobs said the law on separate statements "is not as clear-cut at the administrative level as it is in the courts." She said agencies sometimes have internal voting rules. In a court situation, a concurrence would suffice to make the order stand, though if the concurrence were narrower than the majority opinion the narrowest view is what would be considered the “holding” that could be used as precedent in future cases, she said. "This is all much fuzzier at the administrative level, since the case law is not as well-developed and the concept of precedent works differently," she said. Jacobs said the FCC order likely should still be considered adopted, especially since Carr made clear he approved the order.

Robocalls

The robocalls safe harbors are meant to encourage providers to implement more-robust robocall blocking. The commission signaled its work on combating illegal robocalls isn't done. Pai vowed to remain vigilant against unwanted calls because "as with zombies, where there’s one, there’s more.”

The first safe harbor protects phone companies that use "reasonable analytics" to block illegal or unwanted calls from liability, the FCC said. The second protects providers that block call traffic from bad actor upstream voice service providers that pass illegal or unwanted calls along to other providers, when those upstream providers have been notified but fail to take action to stop these calls. This advances a Further NPRM in docket 17-59 asking questions on whether phone providers must notify consumers for free when calls to them are blocked and how the FCC should specify redress mechanisms for callers whose calls were inadvertently blocked or mislabeled (see 2007100044).

Some commissioners said the language doesn't go far enough. It's important the agency clarifies "robocall blocking by carriers has to be free to consumers," Rosenworcel said. She said "consumers aren’t responsible for putting this junk on the line, so they shouldn’t have to pay to get rid of it." Rosenworcel also noted a case pending before the Supreme Court (see 2007130062) could loosen current law "and make autodialed robocalls even more common."

It's no "time to relax on our illegal robocall tracking and enforcement efforts," Starks said. "Call blocking is a powerful tool that can effectively stop bad actors in their tracks, but if misapplied it can also harm consumers by preventing them from receiving calls they want and, in fact, have given consent to receive."

'Punch List'

O'Rielly worked with interested parties on "a must-have punch list" for effective redress to legitimate callers inadvertently blocked, he said. "I am grateful to the chair for agreeing to implement some of that list, including requirements that providers offer complaint resolution free of charge to callers and that obtaining the protections of the safe harbors be contingent on implementation of the redress." Commissioner Brendan Carr looked forward to FCC expanded anti-robocall efforts and his upcoming participation in the agency's new Hospital Robocall Protection Group (see 2007140058).

“Access to accurate information in the middle of this health crisis is critical and can help save lives, which unfortunately means it’s no surprise that bad actors are using this pandemic to take advantage of people through illegal robocalls,” said Senate Communications Subcommittee Chairman John Thune, R-S.D., and Sen. Ed Markey, D-Mass. The FCC’s action “will help protect consumers from robocallers who are acting in bad faith. On top of everything else Americans are dealing with during this pandemic, now is not the time to worry about the scams.”

USTelecom CEO Jonathan Spalter said call blocking tools and data analytics engines used by its members are already helping stop billions of illegal and unwanted robocalls from reaching consumers. He agreed there's more work to do. AT&T will work with the FCC as it builds on the "anti-robocall tools and services we offer our customers," including its free call blocking and labeling tool, said Joan Marsh, executive vice president-regulatory and state external affairs. T-Mobile unveiled new anti-robocalls measures Thursday (see 2007160046).

"The wireless industry is committed to combating illegal and unwanted robocalls, and adopting a safe harbor will help providers do even more to protect consumers," said CTIA Senior Vice President-Regulatory Affairs Scott Bergmann. Incompas also applauded the safe harbor protection. "The FCC’s measured and incremental approach to safe harbors strikes the appropriate balance,” said Policy Adviser Chris Shipley.

Priority Communications

Tweaks on how government can use networks in emergencies drew less controversy than the leased access item.

Priority emergency communications rules "are woefully outdated," Pai said. The commission established rules for wireless priority services in 2000, and for telecom priority services in 1988, he said, "in era marked by copper wire and circuit-switched networks." The Public Safety Bureau will open an NPRM in docket 20-187.

"The number of switched access lines has precipitously declined," while internet-based forms of communications have been on the rise since the rules were adopted, said Rosenworcel. She said Thursday's effort "can help ensure that old voice-centric rules evolve in our new data-centric world."

O'Rielly said he would like to eliminate FCC oversight of service prioritization. He would like public safety service prioritization to be done contractually with service providers. He wants more uniformity in approach across technologies. "While some priority service programs are mandatory and some voluntary, I hear from providers that, even when voluntary, they feel obligated to participate for public and government relations reasons," O'Rielly said, "without the ability to provide much input. That is not an acceptable way to run such programs. We must ensure that they have a means to raise concerns and grievances, if they arise."

Carr said his colleagues agreed to his light edits to the draft notice to allow easier access by safety and emergency personnel in gaining priority access to Internet-based services without specific rules authorizing it. Carr said he reviewed the public safety service prioritization policy in a deep dive early in his tenure at the FCC and was concerned the earlier draft misconstrued industry concerns. Carr answered our query in a media call, saying he didn't know why commissioners' offices didn't hear input on the draft before the meeting but noted it wasn't a consumer-facing rulemaking.

Meeting Notebook

O’Rielly still hopes the FCC will take a closer look this year at reallocating part of the 3.1-3.55 GHz band for licensed use, he told reporters. O’Rielly earlier slammed an NTIA report on the band (see 2007080015). “Most folks from industry, and those that really acknowledge what’s happening in the marketplace, acknowledge that I’m actually right,” he said: “We’re going to need more of that band than was suggested” by NTIA. After the FCC auctions 3.5 GHz and the C band, the pipeline “is pretty much empty,” he said. “3.55 is the next logical, most talked about and most explored band,” he said. Reallocating the 4.9 GHz band “is complicated because it’s public safety” but is greatly underused, often not for actual public safety, O’Rielly said (see 2005040061). “We have to move on, we can’t leave 50 MHz just sitting out there with no usage,” he said. O’Rielly cited comments that the band would be appropriate for auto safety but said he hasn’t seen any auto industry support. “I’m not against that, per se,” he said. The band could also get another look as Congress considers T-band mandate repeal, he said (see 2007150068).

The FCC “has done its part” on clearing nonfederal users from part of the band, Pai said, citing an NPRM commissioners approved 5-0 in December (see 1912120063). “I have been very outspoken about the need to free up more commercial spectrum in mid-band and in particular in the 3.1-3.55 band,” Pai said. “The FCC is very interested in moving ahead on this band. We may not have seen the progress that we will need to see in order to move aggressively.”