A federal judge peppered New York with questions on how the state’s law requiring $15 monthly low-income plans squares with the FCC 2018 net neutrality order. Judge Denis Hurley asked no questions of the ISPs challenging the policy at a teleconferenced oral argument Thursday in U.S. District Court for Eastern New York. Meanwhile, large telcos are seeking DSL exemptions from the law at the Public Service Commission.
ISP and internet groups allied before the 4th U.S. Circuit Court of Appeals Tuesday in amicus briefs in support of Cox's appeal of a U.S. District Court's upholding a jury's $1 billion verdict that it's liable for subscriber copyright infringement (see 2101130025). NTCA, CTIA and USTelecom said (in Pacer, docket 21-1168) the 4th Circuit should clarify when, if ever, an ISP has specific knowledge that its services are being used for infringing purposes and thus must cut off access. They said for an ISP to be liable for contributory copyright infringement, it must know that it can do something about it, but transmission ISPs aren't able to do anything but cut off service on the assumption future infringements might happen. Because of the verdict against Cox, "transmission ISPs may have no choice but to terminate consumers’ internet access on a massive scale," they said. The Internet Commerce Coalition warned of "crippling damages." It's "Draconian" to require ISPs, on the basis of vicarious and contributory copyright liability, to terminate service to users accused of piracy, the Internet Association said. It said the lower court wrongly says Cox benefits from infringements by its subscribers since those are a minority of subs. IA said terminating access isn't reasonable "because it is a grossly disproportionate response to accusations of illegal downloading." The Electronic Frontier Foundation, Center for Democracy and Technology, American Library Association, Association of College and Research Libraries, Association of Research Libraries and Public Knowledge said affirming the lower court "would have dangerous consequences" because terminating an account "potentially cuts off every household member," and lack of broadband competition may mean no other way to connect. They said the "staggering and poorly justified" $1 billion statutory damages award against Cox "thwarts basic principles of due process and the public interest." IP law professors said there's no proof the infringing activity is a draw for subs, thus no proof Cox received direct financial benefit from piracy.
ISPs protested a NARUC task force’s focus on electric utilities expanding into broadband. Utility officials at the group’s virtual meeting Wednesday applauded a proposed recommendation to reduce barriers to nontraditional providers. Don’t forget wireless or anchor institutions, said other commenters.
Revisions to the FCC rules on pro forma assignments and transfers of control should start with a declaratory ruling clarifying existing requirements, and an NPRM on proposals to streamline post-closing procedures to pro forma transactions, the Satellite Industry Association said Tuesday in docket 20-186. "As CTIA and USTelecom have correctly noted, the FCC has ample authority to proceed." SIA said the declaratory ruling would clear up uncertainty about such items as whether non-substantial changes in ownership constitute an assignment or transfer of control that necessitates filings and if pro forma filings are required only if a license is assigned or if a transfer of control affects the licensee's parent.
ISPs’ lawsuit against New York’s broadband affordability law raises similar preemption issues to cases industry lost in other venues, but law experts disagreed in interviews which side would win. Plaintiffs at U.S. District Court for Eastern New York (case 21-cv-2389) make the same arguments that failed in Maine ISP privacy and California net neutrality cases, which are “structurally almost identical” to the New York case, argued Stanford Law School professor Barbara van Schewick. Former FCC General Counsel Thomas Johnson countered that 2nd U.S. Circuit Court of Appeals case law gives ISP plaintiffs an “additional arrow in their quiver.”
USTelecom disputed Free Press' Thursday claim that its Wednesday report on broadband pricing is misleading (see 2105270079). “The facts, data and methodology in the report are incontrovertible," emailed a spokesperson Friday: "Americans are paying less in 2021 for broadband service than in 2020. This continues a years-long story of declining prices" and "accelerating speeds."
USTelecom's Wednesday report on broadband prices is "flawed and misleading," said Free Press Thursday (see 2105260063). It "grossly manipulates FCC data on standalone non-promotional advertised rates," said Research Director Derek Turner. USTelecom didn't comment.
The price of the most popular tier of broadband service declined 7.5% in 2021 vs. 2020, according to the FCC’s 2021 Urban Rate Survey, USTelecom said Wednesday. The report by Telcodata's Arthur Menko said the consumer choice broadband price index of the most popular tiers dropped 34% since 2015 and when adjusted for inflation.
CTIA and USTelecom said the FCC can issue a declaratory ruling clarifying pro forma procedures, in a filing posted Thursday in docket 20-186 after discussions with staff. The Communications Act, Administrative Procedure Act and commission precedent support this, clarifying issues involving the filings and starting a rulemaking "to apply post-closing notification procedures to all pro forma transactions no matter the license type,” they said. The groups sought the change in June (see 2006050039).
Oppositions are due June 4, replies June 14 on USTelecom's petition for reconsideration in docket 17-59 asking the FCC to clarify a notification requirement, said Thursday's Federal Register. USTelecom asked to "confirm that the notification and blocked call list requirements are only required for analytics-based blocking, whether opt-in or opt-out, and not for contexts in which there would not be any reasonable expectation for them."