Federal judges questioned the sustainability of FCC inmate calling service regulations contained in a 2015 order that limited ICS rates and charges, major parts of which the new Republican-run commission is no longer defending. Citing the agency's shift, Judge Laurence Silberman seemed skeptical about the legal justification for much of the order, and Judge Harry Edwards also raised some doubts, while Judge Cornelia Pillard hypothesized the panel could still uphold the order. The three judges of the U.S. Court of Appeals for the D.C. Circuit pressed litigants to clarify what they wanted their panel to do about the case, Global Tel*Link v. FCC, No. 15-1461, as they struggled to sort out various complexities in oral argument Monday that ran 90 minutes, after being scheduled for 40 minutes.
Sen. Joe Manchin, D-W.Va., introduced S-277 Thursday to “establish a Rural Telecommunications and Broadband Advisory Committee” within the FCC. It has no co-sponsors and was referred to the Commerce Committee, where Manchin was a member last Congress. “The Rural Telecommunications and Broadband Service Act would bring these voices to the table to ensure that the Federal Communications Commission (FCC) and Congress live up to the promise of universal service and help define what that means in today’s 21st century economy,” Manchin said in a statement Friday. “Running a business should not force you to choose between your hometown and a fast and reliable broadband connection.” His news release cited his efforts to press the FCC on Mobility Fund Phase II (see 1702020025).
FCC Chairman Ajit Pai has gotten off to an active start in his first two weeks in the job. Several former FCC officials said early on, in contrast to former Chairman Tom Wheeler, Pai could have a tough time figuring out what to do once designated to lead the regulator, especially given the Republican emphasis on less rather than more regulation and the strong possibility Congress, not the FCC, will address ISP privacy and net neutrality rules. But Pai is already moving forward with a busy agenda, teeing up six items for the Feb. 23 commissioners meeting. Much of his early emphasis has been on closing the digital divide. But controversy arose Friday (see 1702030070).
FCC bureaus Friday afternoon undid numerous orders and other items (see 1702030058) enacted under former FCC Chairman Tom Wheeler, reversing actions on zero rating, media ownership, video streaming and other matters. Commissioner Mignon Clyburn criticized it as “Take out the trash day” and a “Friday news dump.” The reversed items are all “last minute actions” that weren't supported by a majority of commissioners when they were taken and that “ran contrary to the wishes expressed by the leadership of our congressional oversight committees,” said Chairman Ajit Pai in a statement Friday. "In some cases, Commissioners were given no advance notice of these midnight regulations." The actions also were a subject of our earlier story (see 1701240020).
Wi-Fi advocates told the FCC it shouldn’t make changes to its rules for high-frequency spectrum that would be detrimental to unlicensed use of the bands. Microsoft, Public Knowledge and the Open Technology Institute and the Wi-Fi Alliance were among those weighing in. In December, wireless carriers sought changes (see 1612150067). Oppositions to the recon petitions were due at the FCC Tuesday in docket 14-177. Wireless industry commenters, meanwhile, opposed satellite industry petitions asking for the FCC to give fixed satellite service (FSS) downlink spectrum in the 42 GHz band and for less stringent rules on locating earth stations (see 1612160019).
FCC ISP privacy rules were a frequent topic during the Senate Commerce Committee’s hearing Wednesday on regulatory burdens. House Commerce Committee Chairman Greg Walden, R-Ore., told reporters Tuesday that “I think you’ll see both bodies put legislation in” for a Congressional Review Act resolution of disapproval against the rules, unsure of which one "goes first” (see 1701310071). “Anything CRA-wise is going to originate” in the House, Senate Commerce Committee Chairman John Thune, R-S.D., told us Wednesday.
NARUC and 12 states said an FCC Lifeline order improperly bypassed state authority to designate USF-eligible telecom carriers (ETCs) under the federal Communications Act. NARUC said the commission's Lifeline broadband provider designation process order "displays a purposeful disregard of the Congressional scheme and lack of reasoned decision making" and deserved no judicial deference under the Chevron precedent. "Congress specified that State commissions, in the first instance, designate all ETCs," said the state regulators' association brief (in Pacer) Monday to the U.S. Court of Appeals for the D.C. Circuit in NARUC v. FCC, No. 16-1170. The order "claims to 'preempt' that §214(e)(2) State procedure based on the facially illogical claim that this Congressional mandate 'thwart[s] federal universal service goals.' Instead, the Order permits only the FCC to designate a new category of the federal Lifeline carriers -- Lifeline broadband internet access service providers," a process that also "undermines State universal service programs, service quality to the end-user, and increases the chances for ETC fraud and abuse," NARUC said. It asked the court to vacate the designation process and other aspects of the order, including FCC decisions giving federal ETCs the initial say over low-income consumer access to state Lifeline subsidies and using forbearance authority to eliminate state service mandates. Twelve states led by Wisconsin's attorney general filed another brief (in Pacer) saying the order "attempted to amend federal law by regulatory fiat to increase its own authority, while taking away the States' statutory rights." Joining were officials from Arkansas, Connecticut, Idaho, Indiana, Michigan, Mississippi, Montana, Nebraska, South Dakota, Utah and Vermont. An intervenor brief from the National Association of State Utility Consumer Advocates is due Monday. The FCC brief is due March 16.
State commissioners stressed the importance of federalism and state oversight in three telecom resolutions set for consideration this month at NARUC's winter meeting. NARUC released the proposed resolutions Tuesday. The Feb. 12-15 meeting in Washington will be the group's first since President Donald Trump took office and Ajit Pai became FCC chairman. The meeting will include a keynote by House Commerce Committee Chairman Greg Walden, R-Ore., and a congressional staff panel, said a recent agenda.
New Chairman Ajit Pai is likely to restructure the FCC to create an economics bureau, or something similar, industry officials said. The focus on economics comports with the long-standing Republican focus on cost-benefit analysis of orders and other agency actions. Pai, in his first news conference on his new job, said Tuesday he hasn’t made any decisions on process reform or agency restructuring (see 1701310056).
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).