While an FCC staffer suing the agency for workplace retaliation (see 1609300016) obviously suffered "frustration with her employment and her chronic inability to work cooperatively with colleagues," she didn't suffer any violation of her rights, the DOJ Civil Division said in a motion (in Pacer) Friday in U.S. District Court in Washington seeking summary judgment on Sharon Stewart's complaint. DOJ said that while the FCC doesn't condone its workers looking at nude or semi-nude images in their cubicles, that Stewart sometimes caught a glimpse doesn't create a hostile work environment -- especially when a co-worker doing such viewing tried to hide the images from her. Instead, the plaintiff is "cobbl[ing] together a hostile work environment claim" even though the viewing habits weren't directed at all at her. It said there's no evidence that no one took any action on Stewart's complaint because of her gender or other protected characteristic, as a hostile work environment claim requires. The agency also said that while Stewart has argued she was denied performance bonuses in 2012 and 2015 as a form of retaliation, she also was disciplined for misconduct in both of those years, so the FCC "had a legitimate, non-retaliatory reason for its actions." Justice disputed that Stewart was retaliated against when she was relieved of her duties regarding Section 610 reports -- annual lists of 10-year-old agency reports -- since the reports were put on hold for years and no one at the FCC was doing them. Regardless, removal of such administrative responsibilities doesn't count as materially adverse since there is no proof they would have resulted in Stewart's being promoted, DOJ said. The motion also retells multiple past equal employment opportunity and other complaints Stewart filed against co-workers and supervisors when she worked at the Department of Health and Human Services and then at the FCC since starting there in 2001. Stewart's counsel, Noah Peters of Bailey & Ehrenberg, emailed us Monday, "We look forward to responding to the Agency’s motion and are confident we will prevail."

ISPs and the groups that represent them are proposing privacy principles to the FCC as an alternative to controversial 2016 rules. The principles include transparency, consumer choice, data security and the need for data breach notifications, a news release said. “These principles are consistent with the FTC’s privacy framework, which has proved to be a successful privacy regime for many years and which continues to apply to non-ISPs, including social media networks, operating systems, search engines, browsers, and other edge providers that collect and use the same online data as ISPs,” the Friday release said. “That framework has protected consumers’ privacy while fostering unprecedented investment and innovation. The principles are also consistent with the FCC’s May 2015 Enforcement Advisory, which applied to ISPs for almost two years while the FCC’s broadband privacy rules were being considered.” Advocates for Rural Broadband, Altice USA, the American Cable Association, AT&T, Charter Communications, Citizens Telephone and Cablevision, Comcast, Cox Communications, CTIA, ITTA, NCTA, NTCA, T-Mobile, USTelecom, Verizon, VTX1 Cos., the Wireless ISP Association and WTA were among those that endorsed the principles. “As we previously noted, the framework adopted last fall by the FCC significantly departed from the FTC regime, most importantly in the treatment of web browsing and app history data,” said Joan Marsh, AT&T senior vice president-federal regulatory, in a blog post. “The FCC’s order failed to recognize that consumers want their information protected based on the sensitivity of the information, not the entity collecting it. The FCC’s divergent, and illogical, approach will serve only to confuse consumers, who will continue to see ads based on their web browsing history collected by edge providers even after being told by their service provider that their consent is required for use of such information.”

House GOP leadership is privately saying that any Congressional Review Act resolution of disapproval of FCC ISP privacy rules must come with some assurances that such a resolution could make it through the Senate, one telecom industry lobbyist told us Monday. The lobbyist thought some GOP senators would step up but referred to mixed signals on whether the bicameral GOP leadership offices really want to use the tool -- which would nix the regulations and prevent the FCC from developing similar ones absent congressional authorization -- on the rules at all. The lobbyist saw potential for securing all Republican senators' support and that of some Democrats. Coalitions of industry and free-market groups sent Congress two letters on the topic last week (see 1701270062 and 1701260042). Some Capitol Hill Democrats and public interest advocates have slammed the idea of using this tool against the rules. House Majority Leader Kevin McCarthy, R-Calif., is seen as taking point on how to advance with these resolutions. GOP leadership aides from multiple offices didn't comment. “Congress should act to repeal those rules with a resolution of disapproval under the Congressional Review Act,” wrote Scott Cleland, chairman of ISP-funded NetCompetition, in a blog post for The Hill Monday, calling the FCC rules a mess that consumers cannot understand. “Any representative or senator that is trying to make sense of this issue need only ask one question: How does it protect consumer privacy when the FCC makes an ISP treat some consumer information as confidential, but allows every other company in the world to treat that same information nonconfidential?”

FCC Chairman Ajit Pai withdrew a draft report on advanced telecom deployment (ATC) under Telecom Act Section 706 from the agency's circulation list last week. Then-Chairman Tom Wheeler circulated a draft report Jan. 9, which was due to be released by Tuesday (see 1701130069). The final Section 706 report under then-Chairman Julius Genachowski was issued in 2012, and Wheeler's first such report didn't come out until January 2015, so "delay is not atypical in a transition," said a commission spokesman. Network engineer Richard Bennett, who filed comments on an August notice of inquiry, emailed: "The Commission should take as much time as it needs to do the job right. A hastily-prepared, politically-driven report doesn’t do the nation any favors. If 98% of the nation has ATC, as most surveys show, the report should say so." Parties had filed mixed comments on whether advanced telecom capability was being deployed adequately to satisfy the Section 706 mandate (see 1609070039 and 1609220058). Also no longer on circulation are orders on business data services and set-top box rules (see 1701280001).

Center for Democracy & Technology President Nuala O'Connor called the Trump administration executive order that removed Privacy Act protections for foreigners "shocking" (see 1701260015). "The message this action sends is clear: people who don’t hold a U.S. passport or current green card are not entitled to the same dignity as those of us who do," she said in a Friday blog post. O'Connor said the privacy protections were extended to those who aren't U.S. citizens or permanent residents when she worked as the Department of Homeland Security's first chief privacy officer during the George W. Bush administration. It gave all people the ability to request their information held by the department, she said. Beyond respect for human dignity, the action is "profoundly bad for American business," said O'Connor. She said it sends a "clear shot across the bow of our trading partners and allies" and puts the "fragile" EU-U.S. Privacy Shield data-transfer agreement at risk. The White House again had no comment on this issue.

Verizon received nearly 130,000 U.S. law enforcement demands for customer data in the second half of 2016, it reported Friday. The figure is about 6,500 less than the first six months of 2016 and more than 10,000 less than the same period in 2015. Of the nearly 130,000 demands, more than 60,000 were subpoenas, more than 28,000 were orders, more than 10,000 were warrants and about 27,000 were emergency requests. General Counsel Craig Silliman said in a blog post that protecting its customers' privacy is a "bedrock commitment" and the company scrutinizes each law enforcement demand it gets. The company said it received 0-499 national security letters (NSLs) in the second half of 2016 from the FBI. The agency sought between 1,000-1,499 selectors or identifiers that typically refer to a phone number specifying a customer. The number of selectors is usually higher than the number of customer accounts, it said. Silliman said the company "received three NSLs over the past few years for which the non-disclosure requirements have been lifted."

FCC Commissioner Mike O'Rielly cited blog posts criticizing the Public Safety Bureau's recent cybersecurity white paper, in a pair of tweets Thursday, saying the posts were “helpful” in highlighting issues with the commission's “authority & involvement in cybersecurity issues.” Tech Knowledge Director Fred Campbell and Shane Tews, visiting fellow at the American Enterprise Institute's Center for Internet, Communications and Technology Policy, separately criticized the white paper for exceeding its authority by proposing that the federal government needs to assert “appropriate” regulatory oversight over ISPs’ cybersecurity practices in the absence of clear market incentives to drive improvements (see 1701260020). Multiple industry lawyers said they believe the white paper is unlikely to influence FCC cybersecurity policies under new Chairman Ajit Pai (see 1701250077).

FCC Commissioner Mignon Clyburn wants consumers frustrated with their phone, TV or broadband provider to tweet about their issues with the hashtag #consumersfirst, she said in a tweet Thursday. “Use #consumersfirst to share your story,” Clyburn said. “As an @FCC Cmmr [commissioner] I want to hear about it.” Putting consumers first means “robust #competition, #reliable service, no #surprisebilling, #innovation and an #openInternet for all,” she said in another tweet. Clyburn criticized the set-top box market as not being pro-consumer. “Consumers pay avg of $200+ per year to rent their #SetTopBox, grossing video providers more than $20b annually. Is this #consumersfirst?”

The FCC imposed conditions on a waiver it gave New York to use $170.4 million in Connect America Fund auction money for the state's own auction of rural broadband subsidies, but Commissioner Mike O'Rielly still partially dissented due to concerns (see 1701260047). The commission will maintain control over the CAF Phase II subsidy funds at all times, including by specifying where they can be awarded, limiting the amounts, and ensuring recipients comply with CAF oversight, said the order issued Thursday in docket 10-90. It conditioned the waiver on New York ensuring any state auction rule modifications are consistent with federal communications law, allow for the provision of CAF funds only to eligible entities, and don't conflict with other FCC requirements. The order said a core FCC objective is to ensure support doesn't go to areas where unsubsidized competitors already are providing qualifying broadband/voice services, and it ordered the Wireline Bureau to publish an updated list of such unserved census blocks in New York to determine which would be eligible for the CAF support. The FCC said it would condition its funding on New York committing to provide at least the same amount of support in subsidized areas, noting the state intends to make at least $200 million available. The commission also set reserve price restrictions on the federal distributions; and it waived CAF II auction broadband performance tier requirements but clarified that New York recipients of federal funding would face FCC public service obligations to ensure the rural services are reasonably comparable to urban services. In a statement, O'Rielly said he appreciated the FCC oversight and commended Chairman Ajit Pai "for his willingness to commit to pull the plug on this whole effort if it is not consistent with our universal service objectives." But O'Rielly said he was concerned the funding wouldn't be used efficiently, and said New York is a state that diverts 911 fees to unrelated purposes: "We should have received assurances that New York would cease this disgraceful practice." Without New York assurances of a "multi-round reverse auction or scarcity to drive down bids," he said the program could overpay for deployment in some areas. He voiced concern the waiver would also reduce competitive pressures in the FCC's nationwide CAF II auction.

The FCC should allow the Department of Homeland Security to be the lead agency on cybersecurity, said Shane Tews, visiting fellow at the American Enterprise Institute’s Center for Internet, Communications and Technology Policy, in a Thursday blog post. The FCC Public Safety Bureau issued a white paper last week, before former Chairman Tom Wheeler's resignation, saying the commission can’t rely on organic market incentives alone to reduce cyber risk within the communications sector. The federal government needs to assert “appropriate” regulatory oversight over ISPs’ cybersecurity practices in the absence of clear market incentives to drive improvements, the white paper said (see 1701180082). Tews and others said they don't believe new FCC Chairman Ajit Pai will consider making the paper's proposals commission policy (see 1701250077). Congress would do well to instead consider House Homeland Security Committee Chairman Michael McCaul's, R-Texas, planned DHS Reform and Improvement Act as the “best way for the government to facilitate information sharing in this way,” Tews said. McCaul said this month he planned to soon reintroduce the bill, which would reorganize DHS' National Protection and Programs Directorate as the Cybersecurity and Infrastructure Protection Agency in a bid to elevate DHS' cybersecurity focus (see 1701050073). Pai has said other agencies have better legal standing and expertise to handle cybersecurity issues than the FCC, and the commission should only be a consulting agency, Tews said. “Establishing a systematic, reliable reporting process and a trusted repository for information-sharing across industries and the government would be a step in the right direction,” she said. “Now is the time to embrace the importance of the internet for our digital economy and to acknowledge the risks that come with the rewards.”