Rosenworcel Makes Moves Exploring Data Caps, Gateway Security
The FCC is getting more aggressive on data and cybersecurity, with Chairwoman Jessica Rosenworcel on Friday announcing a July 31 hearing on improving the security of the border gateway protocol (BGP). Rosenworcel also said she circulated a notice of inquiry for a commissioner vote about how broadband providers use data caps as part of subscriber plans. Earlier in the week, Rosenworcel said the FCC was taking a closer look at data privacy, launching a Privacy and Data Protection Task Force (see 230615004).
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The July hearing follows a 2022 NOI seeking comment on the cybersecurity vulnerabilities of the internet’s global routing system (see 2202250062). “The workshop will build on this effort by focusing on concrete steps stakeholders can take to enhance internet traffic routing security,” Rosenworcel said.
“BGP’s initial design, which remains widely deployed today, does not include explicit security features to ensure trust in this exchanged information,” said an FCC news release: “As a result, a bad network actor may deliberately falsify BGP reachability information to redirect traffic. These ‘BGP hijacks’ can expose a consumer’s personal information, enable theft, extortion, and state-level espionage, and disrupt otherwise-secure transactions.”
Along with the data cap NOI, the FCC is launching a new portal for consumers to share information on how data caps have affected them. “The agency would like to better understand the current state of data caps, their impact on consumers, and whether the Commission should consider taking action to ensure that data caps do not cause harm to competition or consumers’ ability to access broadband Internet services,” said a release in Fridays Daily Digest.
“Internet access is no longer nice-to-have, but need-to-have for everyone, everywhere,” Rosenworcel said: “As we emerge from the pandemic, there are many lessons to learn about what worked and what didn’t work, especially around what it takes to keep us all connected.”
The FCC said the NOI seeks comment on “why the use of data caps continues to persist despite increased broadband needs of consumers and providers’ demonstrated technical ability to offer unlimited data plans” and “current trends in consumer data usage.” It also asks about the FCC’s legal authority to take action on data caps.
Public Knowledge applauded the NOI. “Data caps are one of the most confusing and pernicious aspects of subscribing to broadband,” said Senior Vice President Harold Feld: “How on earth can a wireless carrier offer multiple ‘unlimited’ plans, each with different consequences for exceeding a different ‘soft’ limit? How can subscribers measure their data consumption with any accuracy? This isn’t like minutes or number of texts. And what about subscribers with no choice but a cable or satellite plan that imposes a data cap?”
The launch of the new task force and other statements by Rosenworcel Wednesday remain controversial. TechFreedom President Berin Szoka said Rosenworcel was “clearly invoking” part of the FCC's 2016 broadband privacy order “that fundamentally reinterpreted Section 222” of the Communications Act. “Without that, the new task force won't have much to do,” he emailed. That order “transformed the statute into a blank check to regulate privacy, not merely a set of specific prohibitions focused on the misuse of sensitive information for anti-competitive purposes by providers of telecommunications services,” he said.
In 2017, Congress rejected the privacy rules approved under former Chairman Tom Wheeler, through a Congressional Review Act resolution (see 1704040059). “The stage is set for a fascinating legal battle,” Szoka said. The CRA blocks the FCC from reissuing a rule that's "substantially the same" as the earlier rule, he said: “What, exactly, that means has not yet been litigated. It's possible courts will interpret that prohibition to block the FCC from re-adopting the 2016 order's reinterpretation of 222(a) as an interpretive rule unto itself, even if the agency doesn't attempt to reissue the entire order. … The courts should do so. But even if they don't, it's far from clear that the FCC would prevail when its interpretation of Section 222(a) is challenged.”