The FCC released an order “taking a necessary procedural step so that the Code of Federal Regulations contains an accurate reflection of the Commission’s current privacy rules.” The Thursday order clarifies that the FCC’s pre-2016 privacy order rules that apply to wireless and wireline carriers have been reinstated. The FCC said the step was necessary after Congress rejected ISP privacy rules approved under former Chairman Tom Wheeler, through a Congressional Review Act resolution (see 1704040059). FCC Commissioner Mignon Clyburn partially dissented and partially concurred. “Because Congress has invalidated the 2016 Privacy Order, we simply make clear that the privacy rules that were in effect prior to 2016 are once again effective,” Chairman Ajit Pai said in a statement. The Wireline Bureau “was slated to perform this ministerial act,” he said. “But when Commissioner Clyburn asked for this matter to be addressed at the Commission level, we brought it up for a Commission vote.” Clyburn said in a statement it was “facile and bull-headed” to move forward on the order without seeking comment on how the CRA affects the proceeding. Clyburn noted this was the first time the CRA has been used to reject an FCC order. “I must disagree both with the simplistic treatment of the Congressional Review Act found in this item, and more significantly, leaving out any requirements for broadband providers,” she said. “I believe the better course would have been to close out the existing proceeding (or initiate a new proceeding) to come up with another holistic approach to voice and broadband.” Key questions remain unanswered, Clyburn said. “Are aspects of the legacy voice rules substantially similar to the harmonized rules the Commission adopted last year?” she asked. “Does the CRA work to undo the modified adopted rule but leave in place the extinguishing of the original rule? We do not grapple with any of these fundamental interpretational issues.” Commissioner Mike O’Rielly voted for the order but didn’t issue a statement. The 2016 rules, opposed by the two FCC Republicans, were seen as ripe for early rejection by the FCC, absent the eventual CRA, in the days after Donald Trump was elected president (see 1611090034). “The FCC has provided confirmation for consumers that broadband providers are obligated to protect their customers' private information," a USTelecom spokeswoman said. "Consumers deserve and expect consistent, clear privacy rules that don’t stifle economic growth or innovation and apply uniformly across the entire internet ecosystem.”

FCC General Counsel Brendan Carr's nomination to the commission's vacant GOP seat poses as many questions as it answers about the path forward for his confirmation process and those of Democratic FCC nominee Jessica Rosenworcel and FCC Chairman Ajit Pai, who requires a vote on his own renomination, industry lobbyists told us. President Donald Trump formally sent Carr's nomination to the Senate at our deadline Thursday. The White House said Wednesday Trump would nominate Carr to both the remainder of the vacant seat's current term, which ends June 13, 2018, and an additional five-year term that expires in June 2023 (see 1706280068). Industry observers told us the Carr and Rosenworcel nominations could signal an imminent period of relative stability at the FCC (see 1706290065).

Some recent court decisions have “nibbled away” at the concept of Chevron deference, attorneys from the FCC Office of General Counsel said at an FCBA CLE Monday evening. The legal principle that courts should give deference to expert agencies on matters of interpreting legislation is “in flux,” said Litigation Division Chief Jacob Lewis. “Chevron lives, it’s still healthy,” Lewis said, but the doctrine is facing “more serious challenges.

Incompas and Sprint opposed an FCC motion that a court remand business data service tariff litigation in which AT&T is challenging a 2016 agency order that found certain incumbent telco BDS tariff provisions unlawful (see 1706140012). Granting the commission's request, which cited a 2006 BellSouth v. FCC ruling, "would needlessly delay resolution of a case" affecting much of the telecom industry, said the two intervenors in their opposition (in Pacer) Friday to the U.S. Court of Appeals for the D.C. Circuit in AT&T v. FCC, No. 16-1166. Incompas and Sprint also said they intend to ask the 8th U.S. Circuit Court of Appeals to transfer separate challenges to the FCC's recent deregulatory BDS order to the D.C. Circuit "so that both cases may be heard by the same panel." Windstream and others asked the FCC to stay that BDS order (see 1706260054). In their opposition, Incompas and Sprint noted the FCC's 2016 tariff investigation order required AT&T and other major ILECs to remove from their pricing plans "unjust and unreasonable" contract provisions, including "all-or-nothing" terms and some volume-shortfall and early-termination penalties. They said voluntary remand is usually granted when there's new evidence or a new event that may affect the validity of agency actions. "None of those circumstances has occurred here," said their opposition. "Instead, the Commission asks -- without confessing error -- for remand to consider an eleven-year-old case that ... is not relevant." Meanwhile, the FCC Friday in a status report (in Pacer) asked the D.C. Circuit to continue to hold in abeyance a USTelecom case challenging an interim technology transitions wholesale access rule that will expire with the implementation of new special access (BDS) rules, which were adopted in April and most of which take effect Aug. 1 (see 1706020060). In USTelecom v. FCC, No. 15-1414, the telco group also is challenging the previous FCC's interpretation of Communications Act Section 214, which the current commission proposed to reverse in a recent wireline broadband deployment NPRM that drew many comments this month (see 1706160041).

FCC commissioners approved 3-0 a notice of inquiry on ways to improve broadband deployment, competition and innovation in residential and commercial multiple tenant environments (MTEs). Commissioners also unanimously approved a payphone order and NPRM that would waive certain auditing and reporting duties while the agency considers eliminating the requirements. Both Wireline Bureau items were adopted at the commissioners' meeting Thursday.

The fight between the Phoenix Center and Free Press intensified Tuesday, with a center paper refuting claims in a May Free Press study. Free Press said aggregate capital investments at publicly traded ISPs were 5 percent higher during the two-year period after FCC commissioners' 2015 net neutrality vote than in the previous two years (see 1705150061). “Recent releases of data from USTelecom and CTIA both reveal very large reductions in capital spending by telecommunications firms in 2016,” said the report by George Ford, Phoenix chief economist. “Even a recent report by Free Press -- a zealous proponent of aggressive Internet regulation -- backs up FCC Chairman Ajit Pai’s claim that investment declined subsequent to reclassification.” Financial data “tells a consistent story about investment in 2016 -- capital spending is down, and way down,” Ford said. The center blames the 2015 order, which reclassified broadband as a Communications Act Title II service. Free Press Policy Director Matt Wood questioned in an email whether the Phoenix Center report makes sense. “Just look at their AT&T section,” Wood said. “They claim that we did not account for DirecTV, but in fact we did. Perhaps George didn't have the stamina or the brainpower to read our full report.” Free Press reported AT&T spending declined temporarily after the 2015 vote because the company completed a massive upgrade in 2014, Wood said. “We haven't accused the ISPs of misleading the FCC, because NONE OF THEM tell the FCC or their investors that Title II had any impact on their investment.” Free State Foundation submitted a filing Tuesday in docket 17-108 including recent papers by FSF Senior Fellow Theodore Bolema: “Too Much Unnecessary Regulation Is Impeding Telecom Investment” and "Allow Paid Prioritization on the Internet for More, Not Less, Capital Investment."

House and Senate Democrats spoke out Monday and this weekend against the FCC May NPRM on the 2015 net neutrality order and reclassification of broadband as a Communications Act Title II service (see 1705180029). “There’s nothing broken” that "needs to be fixed,” said Rep. Anna Eshoo, D-Calif., Monday during a Mozilla-sponsored roundtable discussion with Gigi Sohn, ex-aide to former FCC Chairman Tom Wheeler, and other neutrality supporters. Eshoo draws “great comfort and confidence in the legality of the 2015 rules" given the FCC victory in USTelecom v. FCC, which upheld the order. Industry supporters of the 2015 order should lean on Congress to enact net neutrality legislation since the FCC is likely to divide along partisan lines in favor of rolling back the existing rules despite the proliferation of comments to the commission in favor of keeping them, Eshoo said. FCC Chairman Ajit Pai “thinks like a 110-year-old guy” and millions of pro-neutrality comments are unlikely to sway him to keep the 2015 rules in place, she said. The FCC has received almost 5 million comments. House Commerce Committee ranking member Frank Pallone, D-N.J., began circulating an e-newsletter to supporters Monday decrying the potential rollback. “At its most basic level, net neutrality means that we, the people, can decide for ourselves what we do online,” Pallone said. “Nobody gets to influence that choice: Not the government, and not the companies that run the networks.” Sens. Al Franken, D-Minn., Ed Markey, D-Mass., and Ron Wyden, D-Ore., called in a Saturday joint NowThis opinion video for citizens to speak out against rescinding the 2015 rules. “This is insane,” Franken said in the video. “We need your voices heard.”

FCC efforts to spur wireline broadband advances sparked a strong response, as scores of parties submitted a wide range of views on a rulemaking notice and related items aimed at removing barriers to fiber network deployment. Telecom, cable and fiber providers generally supported the commission's direction, backing steps to ease pole attachments. Incumbent telcos also sought reduced copper-retirement regulation, but CLECs and consumer and labor groups opposed relaxation. Numerous localities and some state interests opposed possible FCC pre-emption of their oversight, and the electric utility industry objected to any heavy-handed pole-attachment intervention, though some supported "one-touch, make-ready" (OTMR) changes if properly conditioned.

FCC Commissioner Michael O'Rielly and telco officials said Wednesday that Congress needs to tackle open internet issues, even as the agency carries out a rulemaking aimed at undoing Title II broadband regulation under the Communications Act. Speaking at a Phoenix Center event, they agreed broadband Title II classification made no sense, but they said lawmakers should give regulators a clearer statutory mandate in order to bring more policy stability.

NTCA and USTelecom asked the FCC to give rural telcos broadband USF contribution relief while the agency seeks to revise the subsidy system's assessments of industry for funding. The commission should provide "targeted, temporary forbearance from the application of USF contribution requirements ... with respect to broadband Internet access transmission services provided by RLECs pending the completion of comprehensive USF contributions reform," they said in a petition Wednesday in docket 06-122. The groups sought the USF contribution relief for such RLEC broadband services until the commission decides whether any and all broadband services "should be required to contribute to support of federal USF programs or completes some other form of contributions reform." They said regulatory forbearance would have a "de minimis effect" on USF contributions. RLECs are being subjected to "discriminatory and anti-competitive treatment" under a 2005 wireline broadband order that allowed them to offer broadband on a common-carrier basis -- to recover costs for such service via access rates and USF -- but only if they agreed to make USF contributions, NTCA and USTelecom said. Other providers haven't been required to make USF contributions, even under the 2015 net neutrality order that reclassified broadband as a Communications Act Title II telecom service because the agency provided USF contribution forbearance, they said. A federal-state joint board is looking at USF contribution issues in an effort to make recommendations to the FCC for possible changes. The FCC, CTIA, NTCA and Public Knowledge didn't comment.