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Washington Report: the calm before the storm

By Bob Deegan, senior government relations counsel, and Colin Sandy, senior regulatory attorney

As you may have heard, we are in a presidential election year. (Now there's an understatement!)  As a result, Congress is on extended summer recess, returning after Labor Day. While Congressional staff might be enjoying a bit of a breather after a run of telecom activity in the weeks leading up to the break, FCC staff continues to labor through a long, hot DC summer. 

FCC issues garner attention on the Hill 

The FCC's Internet Privacy NPRM continues to be a hot button issue, with three recent hearings by the House Subcommittee on Communications and Technology, the Senate Judiciary Committee and the Senate Committee on Commerce, Science, and Transportation. 

Another hot topic is the set-top box proposal, which seems to be raising bipartisan concern, stemming largely from the need to protect copyright holders. The concern has prompted some on the Hill to encourage continued talks between the FCC and industry to reach a satisfactory solution. 

Congress has also focused on the level of waste, fraud and abuse in the FCC's Lifeline program. The concern appears to be bipartisan, as Republicans and Democrats from the House Energy and Commerce Committee are performing their own investigations. Discussion of the issue was among the most contentious portions of a recent FCC Oversight Hearing before the House Subcommittee on Communications and Technology, where all five FCC Commissioners appeared. See below for discussion of the FCC's recent Lifeline Order and its aftermath.

FCC funding once again going to the 11th hour

The appropriate Senate and House committees have moved their respective bills to fund the FCC in fiscal year 2017 forward and the proposed funding levels are lower than what was provided in FY2016 and what was requested for FY2017, especially so in the House bill. Notably, while there were reservations over the level of funding provided to the FCC, the Senate's bill passed through committee with bipartisan support and without any contentious riders. However, the same cannot be said for the version passed by the House, which includes riders regarding net neutrality, FCC process reform and the proposed set-top box rules. The White House has already let it be known that the bill would be vetoed in its current state. With the number of days on the 2016 legislative calendar dwindling, it looks like the appropriations process will once again come down to the wire and likely involve a continuing resolution or two to keep the government operating. 

It's politics as usual

Despite all this activity, the lack of legislative time and the Senate's continued failure to reconfirm Commissioner Rosenworcel, have put a damper on the ability to significantly move anything through the legislative process. Democratic senators have held up telecom legislation in response to the GOP's failure to reconfirm Rosenworcel, despite an alleged promise to do so when Commissioner O'Rielly was confirmed. GOP holds have been placed on the Rosenworcel confirmation due to GOP frustration with Chairman Wheeler's agenda. Supposedly, the holds would be released if Wheeler would commit to resign at the end of President Obama's administration, something which he has steadfastly refused to do. If Commissioner Rosenworcel is not reconfirmed by the end of the year her nomination will expire and she will have to vacate her Commission seat.

RLEC issues not forgotten

Although it looks unlikely that any telecom bills will be passed into law before the end of the year, issues of concern to RLECs have not been forgotten on the Hill. In fact, the Senate has just formed its own Rural Broadband Caucus similar to the one formed in the House earlier this year. The stated purpose of the caucus is to engage in discussions on broadband issues and focus on strengthening broadband infrastructure and deployment across the country. Founding members of the Senate caucus are: Shelley Moore Capito (R-W. Va.); Angus King (I-Maine); Amy Klobuchar (D-Minn.); Heidi Heitkamp (D-N.D.); and, John Boozman (R-Ark.). Additionally, Sen. Klobuchar's call completion bill, S. 827, Improving Rural Call Quality and Reliability Act of 2015, passed unanimously through the Senate Committee on Commerce, Science, and Transportation. [See NECA, associations continue to press for resolution of call completion problems.] The Senate Committee also followed the full House and approved S. 2283, the Small Business Broadband Deployment Act of 2015, which would exempt small ISPs from the enhanced transparency rules of the Open Internet Order. 

Telecom activity keeps courts busy

Among FCC issues various parties have appealed to the courts on are open internet and Lifeline. Here's where those proceedings stand.

Open internet

The FCC received a complete victory from the U.S. District Court of Appeals for the District of Columbia Circuit on June 14 when the Court upheld its 2015 Open Internet rules by rejecting petitions for review from several industry participants. The Court had rejected two earlier attempts by the FCC to promulgate so-called network neutrality rules. This time around the DC Circuit ruled the Commission has statutory authority to classify broadband internet access service as a common carrier Title II service instead of an information service under Title I of the Telecommunications Act. The court also denied challenges to the Commission's decision to forbear from numerous provisions of the Communications Act, and rejected challenges to the rules that ban blocking, throttling, paid prioritization, and impose a general conduct rule and an enhanced transparency rule.

As expected, appeals of the Court's ruling have been filed. Petitions for rehearing en banc were filed with the DC Circuit Court of Appeals by AT&T, USTelecom and Century Link, CTIA, NCTA and ACA, Alamo and Tech Freedom. Chairman Wheeler said he was not surprised the "big dogs" challenged the earlier Court ruling.  However, even these petitions do not indicate the end of the road is near for the Open Internet Order litigation as parties will still have the option to file a Petition for Writ of Certiorari (Review) with the Supreme Court within 90 days of the DC Circuit Court either denying the requests for rehearing en banc or entry of a final judgement. 

Lifeline

In May the FCC released its Lifeline Modernization Order. Among its most significant reforms was the inclusion of broadband internet access as a supported service. The Order also included development of a national verifier system, minimum service standards, eligibility standards, usage requirements, and other process changes. According to the FCC, these new reforms are designed to improve the efficacy, efficiency and accountability of the Lifeline program as it meets the modern needs of program recipients. 

The Order prompted several petitions for reconsideration and at least one court challenge. Petitions for reconsideration focused on speed standards, phasing out of support for voice-only fixed and mobile service, issues related to the National Verifier, the decision not to provide streamlined ETC application processing for voice-only Lifeline services, and clarification of the rolling recertification rule. 

NARUC filed a Petition for Review with the D.C. Circuit Court on June 2 claiming the FCC's order ignores the U.S. Constitution's concept of separation of powers, along with the clear text and unambiguous structure of the Telecommunications Act of 1996.

Is the election over yet?

By the time you read this, the two major parties will have officially nominated their presidential picks. As citizens, we are about to face an onslaught of radio and TV ads, mailers, etc. about where they stand on the major issues. As telco industry participants we are particularly interested in where they stand on telecom issues. We hope to hear more on the candidates' positions in that area in the coming months leading up to the November 8 general elections. And to hear what the results mean, come to EXPO and listen to political pundit Norm Ornstein sort it all out.

 

Filed under August 2016, Tagged with Congress, FCC, Lifeline, Open internet


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