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June 18, 2010, Alert No. 2,097.
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FCC Adopts Broadband Reclassification NOI

6/17. The Federal Communications Commission (FCC) adopted a Notice of Inquiry (NOI) [64 pages in PDF] that proposes to reclassify broadband internet access services as Title II services, by a vote of 3-2.

The providers of broadband internet access services, and their supporters, criticized the NOI. Companies that do not build broadband networks, but whose services to their customers entail usage of broadband networks, and their supporters, praised the NOI. See, related stories in this issue titled "Reaction to FCC Reclassification NOI".

The FCC is proceeding with unusual speed. FCC Chairman Julius Genachowski first publicly advanced this proposal on May 6, 2010. See, story titled "Three FCC Democratic Commissioners Back Plan to Regulate Broadband Internet Access Services under Title II" and related stories in TLJ Daily E-Mail Alert No. 2,083, May 6, 2010.

The FCC has already released the NOI, and set fast track comment deadlines. Initial comments are due by July 15, 2010. Reply comments are due by August 12, 2010.

Julius GenachowskiGenachowski (at left) may be trying to institute this reclassification scheme before the November elections, and before the next Congress can block his proposal, for example, via an appropriations rider. See also, related story titled "FCC Employs Fast Tracking and Stacking in Reclassification Proceeding" in the next issue.

TLJ articles on this issue have used the term "broadband internet access service". This is term that the FCC has used, for example, in the 2008 Comcast order [67 pages in PDF], and in Genachowski's May 6, 2010, paper [6 pages in PDF] proposing reclassification. However, this NOI employs the term "broadband Internet service". The FCC drops the word "access" in order to also encompass "other services such as e-mail and online storage". Although, much of the NOI then poses questions about the "connectivity" component of "broadband Internet service".

The NOI also asks whether or not terrestrial wireless and satellite broadband access services should be reclassified along with "wired" services. The NOI also asks how the FCC should classify non-facilities based broadband internet access services.

The NOI maintains that internet content and applications remain Title I services.

The NOI elaborates that "we do not intend to address in this proceeding the classification of information services such as e-mail hosting, web-based content and applications, voicemail, interactive menu services, video conferencing, cloud computing, or any other offering aside from broadband Internet service. Services that utilize telecommunications to afford access to particular stored content, such as content delivery networks, also are outside the scope of this proceeding. Nor do we intend here to address or disturb our treatment of services that are not sold by facilities-based Internet service providers to end users in the retail market, including, for example, Internet backbone connectivity arrangements." (Footnotes omitted.)

Nominally, this NOI sets forth three proposals, and seeks comments on all three. This is in part done for polemic purposes. The only proposal that is likely to garner three votes for adoption is for reclassification and forbearance. The other two are inserted, in part, to enable supporters to spin their proposal as a "third way" and a middle ground. The other two are Title II reclassification without forbearance, and maintaining the current regulatory regime.

The NOI proposes reclassifying "wired broadband Internet connectivity as a telecommunications service ... but simultaneously forbearing from applying most requirements of Title II to that connectivity service, save for a small number of provisions". Those provisions are 47 U.S.C. §§ 201, 201, 208, 222, 254, and 255. These would give the FCC authority over broadband internet service providers, as if they were common carriers, for the purposes of price regulation, services regulation, non-discrimination regulation, complaints and adjudications, CPNI privacy regulation, universal service taxation, and disability access regulation.

There was no debate at the FCC's meeting. Three representatives of the FCC's Office of General Counsel introduced the NOI. Then, each of the five Commissioners read a prepared speech. All reiterated points that they have made in prior speeches. Finally, they voted. Democrats Genachowski, Copps and Clyburn voted for adopting this NOI. Republicans McDowell and Baker voted against.

See, speech of Genachowski, speech of Michael Copps, speech of Mignon Clyburn, speech of Robert McDowell, and speech of Meredith Baker.

Comcast Opinion. The proposal in this NOI is a reaction to the April 6, 2010, opinion [36 pages in PDF] of the U.S. Court of Appeals (DCCir) in Comcast v. FCC. This opinion vacated the August 2008 order of the FCC that asserted authority to regulate the network management practices of broadband internet access providers.

The Court held that the FCC lacks statutory authority to do this. See also, story titled "Court of Appeals Vacates FCC's Comcast Order", and related stories, in TLJ Daily E-Mail Alert No. 2,072, April 7, 2010.

This opinion is significant, not just because it overturns the Comcast order, and because it holds that the FCC currently lacks statutory authority to regulate the network management practices of broadband internet access providers, but because the FCC's arguments that it has authority to writes rules in this area are the same arguments rejected in the just decided case.

The Comcast opinion thus undermined the proceeding initiated on October 22, 2009, by adoption of a Notice of Proposed Rulemaking (NPRM) [107 pages in PDF] that proposed to regulate the network management practices of broadband internet access service providers. This proceeding is titled "In the Matter of Preserving the Open Internet Broadband Industry Practices". This NPRM is FCC 09-93 in GN Docket No. 09-191 and WC Docket No. 07-52. See also, stories titled "FCC Adopts Internet Regulation NPRM" and "Statutory Authority and Ancillary Jurisdiction", and related stories, in TLJ Daily E-Mail Alert No. 2,008, October 23, 2009.

The just released NOI reflects an alternative plan by Chairman Genachowski and the two other Democratic Commissioners for regulating broadband internet access providers.

The five Commissioners offered divergent views on the consequences of the Comcast opinion at the June 17 meeting. The three Democrats argued that it imperiled a wide range of FCC activities, including universal service, privacy protection and disability access.

Title II Regulatory Regime to Be Applied. The NOI identifies six sections in Title II that would be applied to broadband internet services. It would forbear as to the other sections. The core powers to be asserted by the FCC are enumerated in Sections 201, 202 and 208. These include price, service and nondiscrimination regulation.

47 U.S.C. § 201 treats service providers as common carriers, requires them to provide service, requires interconnection, requires that all "charges ... be just and reasonable", and authorizes the FCC to write "rules and regulations as may be necessary in the public interest".

47 U.S.C. § 202 provides, in part, that "It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage."

47 U.S.C. § 208 provides that anyone may file a complaint against a common carrier, and that the FCC has adjudicatory authority with respect to that complaint.

47 U.S.C. § 222 requires that carriers keep confidential customer proprietary network information (CPNI).

47 U.S.C. § 254 provides for FCC administered universal service tax and subsidy programs.

47 U.S.C. § 255 pertains to access by persons with disabilities.

Forbearance. The NOI proposes to use the forbearance statute in a manner that was not intended by the Congress, and that is not consistent with the language of the statute.

47 U.S.C. § 160 provides, in part, that the FCC "shall forbear from applying any regulation or any provision of this chapter to a telecommunications carrier or telecommunications service, or class of telecommunications carriers or telecommunications services, in any or some of its or their geographic markets, if the Commission determines that --- (1) enforcement of such regulation or provision is not necessary to ensure that the charges, practices, classifications, or regulations by, for, or in connection with that telecommunications carrier or telecommunications service are just and reasonable and are not unjustly or unreasonably discriminatory; (2) enforcement of such regulation or provision is not necessary for the protection of consumers; and (3) forbearance from applying such provision or regulation is consistent with the public interest."

The forbearance section provides that the process begins with the filing of a petition by a carrier. It states that "Any telecommunications carrier, or class of telecommunications carriers, may submit a petition to the Commission requesting that the Commission exercise the authority granted under this section with respect to that carrier or those carriers, or any service offered by that carrier or carriers."

However, the FCC's just released NOI provides that the FCC will make forbearance determinations sua sponte, without waiting for the filing of forbearance petitions.

Carriers, and broadband internet access service providers, in most circumstances, have little interest in stopping the FCC from forbearing. On the other hand, others may want the FCC not to forbear as to many sections of Title II. Some of these entities may file petitions for review of the FCC's final order or other disposition in this proceeding.

FCC personnel cite two precedents for the FCC forbearing on its own initiative: in instituting a regulatory regime in 1993 for wireless carriers, and in the 2005 DSL order.

One consequence of forbearance in this proceeding is that petitions for review may be filed, not only by the broadband internet access service providers, who challenge the Title II reclassification, but also by entities seeking broader regulation than the order provides, and object to forbearance.

The broadband providers are likely to file in the DC Circuit, which may view the FCC's reclassification order as a crass attempt to circumvent its Comcast opinion. The other entities are likely to file in other circuits, such as the 3rd and 9th Circuits. It is possible that the outcome of judicial challenges may be determined by the judicial lottery conducted by the Judicial Panel on Multidistrict Litigation.

Many legal questions are likely to arise, such as (1) whether the FCC does have sua sponte forbearance authority, (2) would the FCC have the requisite factual basis to make these forbearance determinations, (3) can the FCC make sua sponte forbearance determinations without making the three determinations required by the statute, (4) what determinations constitute final orders subject to judicial review, and (5) who has standing to challenge forbearance determinations.

Perhaps it should be noted too that while the NOI proposes to apply key core sections of Title II, it also proposes to forbear from applying forty-two other sections. In the past, forbearance orders have been long and complex, even though they have dealt only with a limited range of statutory sections, markets and companies. In contrast, the FCC is proposing to issue an order that covers forty-two sections, the large number of companies providing broadband service, and every market in the U.S. The FCC may not be capable of reaching determinations on each of the statute's three prongs for so many sections, companies and markets.

The NOI suggests that the FCC may not even attempt to do so.

Finally, it is possible that a court would uphold the reclassification, but overturn some or all of the forbearance portion of the order. It is also possible that even if the courts were to uphold the forbearance portions of the order, the Commission might, in the future, unforbear, just as it is now seeking to undo its Title I classifications.

Legal Authority for Reclassification. This NOI is missing a section. There is no part that asserts the statutory authority for this NOI, and the reclassification proposal that it contains.

On the other hand, while some opponents state that it may be overturned on judicial review, few offer any specific legal arguments.

Here are some possible legal issues presented by a final order or ruling that includes reclassification.

First, opponents may argue that neither broadband internet access service nor broadband internet service, nor access, e-mail, or online storage, are telecommunications within the meaning of Title II of the Communications Act.

Sections 201 (price and service regulation) and 202 (non-discrimination), for example, only cover "a common carrier" providing a "communication service". Section 208 (adjudicatory authority) only reaches a "common carrier". Section 222 (CPNI privacy) only covers a "telecommunications carrier". Section 254 (universal service) only imposes obligations on "Every telecommunications carrier that provides interstate telecommunications services". However, it provides for support for "advanced telecommunications and information services". Section 255 (disability access) only reaches a "manufacturer of telecommunications equipment or customer premises equipment" and a "provider of telecommunications service".

Second, 47 U.S.C. § 230, which was enacted as part of the Telecommunications Act of 1996, provides that "It is the policy of the United States ... to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation".

Section 230 also recites in its findings that "The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation".

Third, the ultimate order's overinclusiveness and/or underinclusiveness may give rise to various arguments that the order is Constitutionally defective.

Fourth, opponents have argued that the order will be defective because there is no change in circumstances that warrants reclassification. Supporters have argued that circumstances have changed and that the FCC, under the Fox opinion, is free to change course.

Last year, the Supreme Court issued its opinion [PDF] in FCC v. Fox Television Stations, 556 U.S. __. It held that the FCC can change its policies. However, the question in Fox was whether the FCC's action was arbitrary and capricious under the Administrative Procedure Act (APA), and not whether the FCC's interpretation of a statute was entitled to Chevron deference. A challenge to reclassification based upon lack of statutory authority would involve Chevron deference. See, the Supreme Court's 1984 opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837.

Moreover, the Supreme Court applied Chevron deference to the FCC's original classification of cable modem service as a Title I service in its 2005 opinion [59 pages in PDF] in NCTA v. Brand X, 545 U.S. 967. Chairman Genachowski now seeks to reverse that classification. See also, story titled “Supreme Court Rules in Brand X Case” in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

The Court wrote in dicta in Brand X that the FCC "is free within the limits of reasoned interpretation to change course if it adequately justifies the change". The Court thus considered that reclassifications are permissible. However, its use of the phrases "reasoned interpretation" and "adequately justifies" suggest that the Court might apply a higher standard to reclassifications that to original classifications.

Also, if the FCC were to implement Genachowski's proposal, since the FCC for years adhered to its Title I determinations, and only changed it classifications in the wake of the Comcast opinion, the courts may view the reclassification either as (1) a failure to adequately justify, or (2) not as a expert determination entitled to deference, but a crude attempt evade the Comcast opinion.

There are also several legal issues raised by the forbearance part of the proposal. These are addressed above in the subsection titled "Forbearance".

Procedural Matters. Austin Schlick (FCC General Counsel), Julie Veach (Deputy General Counsel), and David Tannenbaum (Office of General Counsel) presented this item to the five Commissioners. Schlick provided an introduction. Veach offered a historical interpretation of the statutes, court opinions, FCC orders and ruling, and other matters relevant to this NOI. Tannenbaum discussed the contents of the NOI. Schlick also answered questions from reporters at a news conference after the FCC meeting.

This NOI states that this is a permit but disclose proceeding within the meaning of the FCC's rules regarding ex parte communications.

This NOI is FCC 10-114 in GN Docket No. 10-127.

Reaction to FCC Reclassification NOI

6/17. The present debate over how to regulate broadband networks pits two large industry coalitions against each other. On the one hand, the telecom, cable and wireless companies that build broadband networks and provide broadband internet access services oppose Federal Communications Commission (FCC) Julius Genachowski's proposal to reclassify these services as Title II services.

On the other hand, a collection of companies that do not build broadband networks, but whose services to their customers entail usage of broadband networks, support Genachowski's proposal.

Industry Support. Google's Rick Whitt stated in a release on June 17 that "This morning the FCC asked for public comment on its proposed ``third way,´´ a light-touch approach that would restore legal clarity after the recent Comcast decision. As we have said before, broadband infrastructure is too important to be left outside of any oversight. Google, along with a dozen other tech companies, have written in support of Chairman Genachowski’s proposed ``third way´´ as a straightforward way to protect consumers and the open Internet."

On May 6, 2010, when Genachowski announced his proposal to reclassify, Amazon, Dish Network, Data Foundry, EarthLink, eBay, Google, IAC, Netflix, Skype, Sling Media, Sony Electronics, and XO Communications sent a letter of support. These companies have formed a coalition titled "Open Internet Coalition".

Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "Genachowski's proposal narrowly regulates Internet access providers without regulating the Internet itself. It's the best solution for both entrepreneurial innovation and Internet users. ... How the FCC handles this will map out how much freedom newcomers will have to launch innovative applications and services that can freely be discovered by others wandering the Internet. We hope the FCC is able to withstand the political backlash it will no doubt face from entrenched stakeholders who want to hang on to deregulation as long as possible."

Gary Shapiro, head of the Consumer Electronics Association (CEA), stated in a release that "The FCC must ensure that consumers can enjoy unfettered access to broadband networks and content without overly regulating the Internet, the engine of technology driving our innovation economy. A robust competitive marketplace is key to broadband deployment."

He added that "CEA commends the Commission for moving expeditiously to solicit public input in order to avoid any regulatory uncertainty that could leave consumers in limbo and chill innovation. Following the D.C. Circuit’s Comcast decision, the Commission has proposed some creative solutions that are worthy of honest and thorough discussion. We look forward to providing our comments to the Commission consistent with these principles."

Industry Opposition. The companies that provide broadband internet access services, and which are the target of Genachowski's reclassification proposal, along with the groups that represent them, expressed opposition.

Kyle McSlarrow, head of the National Cable and Telecommunications Association (NCTA), stated in a release that "Over the past decade, broadband deployment in America has been an unparalleled success story. That success has been greatly aided by the farsighted judgment of prior Democratic and Republican Commissions to promote innovation and investment in new networks through the exercise of regulatory restraint. As we revisit this question with the start of today’s inquiry, we see little benefit to changing course and great danger in attempting to shoehorn modern broadband services into a Depression-era regulatory regime without serious collateral effects to investment, employment, and innovation."

Walter McCormick, head of the U.S. Telecom, stated in a release that "We are confident that a fully developed record will clearly demonstrate that to subject broadband Internet access to 20th Century monopoly telephone regulation is legally unsustainable, and will stifle job creation, investment and economic growth. We are also confident that the record will reaffirm the FCC’s own data showing that over 90 percent of consumers are happy with their broadband service, and will show that if the Commission wants new authority over the Internet, it should seek that authority from the United States Congress."

Steve Largent, head of the CTIA, which represents wireless service providers, stated in a release that "We are disappointed that the Commission continues to consider the application of monopoly-era rules for the U.S. mobile broadband ecosystem. Despite the fact the FCC has heard from more than half of the elected officials in Congress that this approach is wrong, the Commission has chosen to ignore this diverse and bi-partisan group of Senators and Representatives from around the country. Instead, the Commission’s action is a dangerous solution in search of a non-existent problem.

Largent added that "The U.S. wireless industry is open, innovative, competitive and low-cost. In short, it is everything that consumers in America want. Today, the FCC seeks to justify its action based on the nation's positive experience with light-touch regulation in the wireless market."

Jim Cicconi, General Counsel of AT&T, stated in a release that "Today's decision by the FCC is troubling and, in many respects, unsettling. It will create investment uncertainty at a time when certainty is most needed. It will no doubt damage jobs in a period of far-too-high unemployment. It will also undermine the FCC's own goals for the National Broadband Plan. A better and more proper approach is for the FCC to defer the question of its legal authority to the US Congress. A clear and bipartisan majority of Congress has urged this".

He continued that "the FCC proposes to regulate broadband networks virtually end to end under a regulatory structure devised in 1934 for monopoly telephone networks. This is impossible to justify on either a policy or legal basis, and we remain confident that if the FCC persists in its course -- and we truly hope it does not -- the courts will surely overturn their action. We would also note that, significantly, the FCC’s proposal today fails to articulate any legal theory on which it feels it can proceed with a Title II reclassification."

Groups' Reactions. Gigi Sohn, head of the Public Knowledge, stated in a release that "The Commission has been attacked unmercifully by multi-billion dollar companies using threats, intimidation and fabrications, among other distasteful tactics. They have used captive or unwitting legislators, in the face if common sense, to further their corporate goals".

Andrew Schwartzman of the Media Access Project (MAP) stated in a release that "This vote will help protect competition, consumer rights, and democracy on the Internet. Classifying Internet services under Title II is the right thing to do, and now is the right time to do it."

Adam Thierer, head of the Progress & Freedom Foundation (PFF), stated in a release that "Chairman Genachowski's FCC continues to flaunt the rule of law and magically invent its own authority as it goes along. If this Chairman wants to bring the Net under his thumb and regulate broadband networks like plain-vanilla public utilities, he should ask Congress for the authority to pursue such imperial ambitions. As the law stands today, the FCC has no such authority. Indeed, the unambiguously deregulatory thrust of the Telecom Act of 1996 stands in stark contrast to Chairman Genachowski's outdated vision for Big Government Broadband."

Thierer added that "The FCC stands on the cusp of killing one of the great deregulatory success stories of modern economic history by reviving the discredited regulatory industrial policies of the 19th Century."

The Information Technology and Innovation Foundation (ITIF) released a short paper by Richard Bennett on June 17 titled "Move the Broadband Policy Debate to Congress".

"Congress has never issued a clear directive to the FCC regarding Internet policy that the agency can enforce without legal uncertainty." Bennett also wrote that "In the absence of a clear statement of policy from the Congress, the FCC has been forced to improvise a broadband Internet regulatory framework in response to a series of court decisions going back as at least as far as AT&T v. City of Portland in 1999."

See, June 4, 1999, opinion of the U.S. District Court (DOre), and June 22, 2000, opinion of the U.S. Court of Appeals (9thCir). See also, TLJ web page titled "Summary of AT&T v. City of Portland".

Bennett continued that "The FCC now proposes to answer the overall Internet policy question on its own, but Congress is not well disposed to accept its solution. While some influential members of the Congress have apparently endorsed the FCC's plan, a majority of members of the House have signed letters to the effect that the FCC should not enact its ``Third Way´´ proposal. It's reasonably clear that the FCC will be challenged in court if it does embark on its ``Third Way´´, so there is little certainty to be gained by enacting a broadband Internet policy that's unlikely to survive very long."

Randolph, head of the Free State Foundation (FSF), stated in a release that "It is sad but true that Don Quixote-like, Chairman Genachowski is leading the Commission on an ill-fated journey, all in the name of searching for solutions to non-existent problems. The quest is to put in place Internet regulations, despite the lack of evidence of market failure or consumer abuses. But in light of the serious legal hurdles confronting Genachowski's proposal, the Third Way looks more like the Impossible Dream. The saddest fact of all is that this quixotic quest to regulate Internet providers continues to divert the Commission from focusing on what ought to be its real priorities - fostering broadband deployment to the few remaining unserved areas, restructuring the universal service program, reforming spectrum policy, and reinventing its own institutional operations."

In This Issue
This issue contains the following items:
 • FCC Adopts Broadband Reclassification NOI
 • Reaction to FCC Reclassification NOI
 • Congress, the FCC, and Broadband Regulation
Washington Tech Calendar
New items are highlighted in red.
Friday, June 18

The House will not meet. The House did not consider HR 5175 [LOC | WW], the "Democracy is Strengthened by Casting Light on Spending in Elections Act" or "DISCLOSE Act", this week. However, it may take up this bill next week.

The Senate will meet at 9:45 AM for morning business.

11:30 AM - 12:00 PM. The Federal Communications Commission (FCC) will hold a news teleconference titled "Teleconference to discuss expansion of mobile broadband spectrum under the National Broadband Plan". The speakers will be Ruth Milkman (Chief of the Wireless Telecommunications Bureau), Julius Knapp (Chief of the Office of Engineering and Technology), Mindel De La Torre (Chief of the International Bureau), and Paul de Sa (Chief of the Office of Strategic Planning). The call in number is 1-888-566-5973. The PIN is 6574611. Register to participate by contacting Robert Kenny at robert dot kenny at fcc dot gov or 202-418-2668 by 10:00 AM on June 18.

12:30 - 1:30 PM. The American Bar Association (ABA) will host a brown bag lunch titled "Introduction to U.S. Privacy and Information Security Law". The speakers will be Carla Hine (McDermott Will & Emery), Megan Olsen (Kelley Drye & Warren), Joel Samuels (Axinn Veltrop & Harkrider), and Katie Brin (Federal Trade Commission). See, notice. This event is free. Location: undisclosed.

5:00 PM. Deadline to submit comments to the National Coordination Office for Networking and Information Technology Research and Development regarding federal cyber security research activities. See, notice in the Federal Register, May 13, 2010, Vol. 75, No 92, at Pages 27006-27007.

Deadline to submit written comments to the U.S. Patent and Trademark Office (USPTO) regarding "Enhancement in the Quality of Patents and on United States Patent and Trademark Office Patent Quality Metrics". See, notice in the Federal Register, April 27, 2010, Vol. 75, No. 80, at Pages 22120-22121.

Sunday, June 20

Fathers Day.

Monday, June 21

The House will meet at 11:00 AM.

9:30 - 11:00 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Where does the US Really Stand in Broadband and Why?". The speakers will be Robert Atkinson (ITIF), Sacha Meinrath (New America Foundation), George Ford (Phoenix Center) and Matthew Wood (Media Access Project). See, notice. Location: ITIF, Room 610, 1101 K St., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association (FCBA) will host a brown bag lunch titled "The Satellite Television Extension and Localism Act of 2010". The speakers will be Seth Davidson (Fleischman & Harding), Mike Nilsson (Wiltshire & Grannis), and Linda Kinney (Echostar). Location: Dow Lohnes, 1200 New Hampshire Ave., NW.

Effective date of the Federal Communications Commission's (FCC) Order adopting rules for the FCC's Emergency Response Interoperability Center (ERIC). This Order is FCC 10-67 in GN Docket No. 09-51 and PS Docket No. 06-229. See, notice in the Federal Register, May 20, 2010, Vol. 75, No. 97, at Pages 28206-28207.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding robocalls, and revisions to FCC rules under the Telephone Consumer Protection Act (TCPA) that would harmonize those rules with the Federal Trade Commission's (FTC) recently amended Telemarketing Sales Rule (TSR). This FCC adopted this NPRM on January 20, 2010, and released the text [37 pages in PDF] on January 22, 2010. It is FCC 10-18 in CG Docket No. 02-278. See, notice in the Federal Register, March 22, 2010, Vol. 75, No. 54, at Pages 13471-13482. See also, story titled "FCC Adopts NPRM Regarding Limiting Some Robocalls" in TLJ Daily E-Mail Alert No. 2,037, January 20, 2010.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking [45 pages in PDF] regarding universal service low income subsidy programs in Puerto Rico. The FCC adopted and released this item on April 16, 2010. It is FCC 10-57 in WC Docket No. 05-337, CC Docket No. 96-45, and WC Docket No. 03-109. See, notice in the Federal Register, May 7, 2010, Vol. 75, No. 88, at Pages 25156-25159.

Deadline to submit comments to the National Telecommunications and Information Administration (NTIA) regarding Domain Name System Security Extensions (DNSSEC). See, notice in the Federal Register, June 9, 2010, Vol. 75, No. 110, at Page 32748. See also, NTIA's June 7, 2010, report [10 pages in PDF] titled "Final Report on DNSSEC Deployment Testing and Evaluation in the Root Zone".

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [45 pages in PDF] regarding low income universal service subsidies in Puerto Rico. The FCC adopted and released this item on April 16, 2010. This item is FCC 10-57 in WC Docket No. 05-337, CC Docket No. 96-45, and WC Docket No. 03-109. See, notice in the Federal Register, May 7, 2010, Vol. 75, No. 88, at Pages 25156-25159.

Tuesday, June 22

10:00 AM - 1:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's Privacy & Security Tiger Team will meet by teleconference. See, notice in the Federal Register, June 16, 2010, Vol. 75, No. 115, at Page 34141.

2:30 PM. The Senate Commerce Committee's (SCC) Subcommittee on Competitiveness, Innovation and Export Promotion will hold a hearing titled "Innovation in America: Opportunities and Obstacles". See, notice. Location: Room 253, Russell Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its May 21, 2010, Public Notice (PN) regarding Puerto Rico Telephone Company's (PRTC) petition for reconsideration of the FCC's decision declining to establish a new universal service high cost support mechanism for non-rural insular carriers. See, notice in the Federal Register, May 28, 2010, Vol. 75, No. 103, at Pages 30024-30025.

Deadline to submit post hearing briefs and statements to the U.S. International Trade Commission (USITC) in its proceeding titled "China: Intellectual Property Infringement, Indigenous Innovation Policies, and Frameworks for Measuring the Effects on the U.S. Economy". See, notice in the Federal Register, May 10, 2010, Vol. 75, No. 89, at Pages 25883-25884.

Wednesday, June 23

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the Office of the Intellectual Property Enforcement Coordinator". The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "The U.S. -- China Trade Relationship: Finding a New Path Forward". The witnesses will be Gary Locke (Secretary of Commerce) and Ron Kirk (U.S. Trade Representative). See, notice. Location: Room 215, Dirksen Building.

10:00 AM. The U.S. District Court (DC) will hold a status conference in US v. Microsoft, D.C. No. 98-1232 (CKK), and New York, et al. v. Microsoft, D.C. No. 98-1233 (CKK). Location: Courtroom 28A.

12:00 NOON - 1:30 PM. The American Bar Association's (ABA) Section of Antitrust Law will host an on site and teleconferenced panel discussion titled "Apple, Google and More: Recent Issues in Identifying and Addressing Problems Involving Interlocking Directorates". The speakers will be Yvonne Quinn (Sullivan & Cromwell), Andrew Finch (Paul Weiss), Pat Robinson (Federal Reserve Board), and Darren Tucker (Attorney Advisor to FTC Commissioner Thomas Rosch). See, notice. Location: Wilson Sonsini, 5th floor, 1700 K St., NW.

1:00 - 2:30 PM. The American Bar Association's (ABA) Forum on the Entertainment and Sports Industries will host a seminar titled "Network to Blog -- Old vs. New Media: What You Need to Know in Sports Deals". The speakers will be Douglas Hand (Hand Baldachin & Amburgey) and Maidie Oliveau (Arent Fox). See, notice. Prices vary. This event qualifies for continuing legal education (CLE) credits. The ABA will teleconference and webcast this event.

Thursday, June 24

8:30 AM - 5:00 PM. The American Antitrust Institute (AAI) will host a one day conference titled "Public and Private: Are the Boundaries in Transition?". Christine Varney, Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division will give a speech at 9:00 AM. There will be a panel discussion on telecommunications at 11:00 AM. See, schedule. The price to attend ranges from $120 to $500. Location: National Press Club.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on the Constitution, Civil Rights, and Civil Liberties will hold a hearing titled "ECPA Reform and the Revolution in Location Based Technologies and Services". See, notice. Location: Room 2237, Rayburn Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Universal Service: Transforming the High-Cost Fund for the Broadband Era". See, notice. The SCC will webcast this event. Location: Room 253, Russell Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

11:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing titled "Civil Division of the United States Department of Justice". See, notice. Location: Room 2237, Rayburn Building.

12:00 NOON - 1:00 PM. The American Bar Association's (ABA) Section of Antitrust Law will host an on site and teleconferenced panel discussion titled "Google/AdMob: Lessons from the FTC Investigation". The speakers will be Randall Long (FTC), Logan Breed (Hogan Lovells, counsel for AdMob), Leah Brannon (Cleary Gottlieb, counsel for Google), and Ken Glazer (K&L Gates). See, notice. Location: K&L Gates, 1601 K St., NW.

1:00 - 2:30 PM. The American Bar Association's (ABA) Forum on the Entertainment and Sports Industries will host a seminar titled "The Complex World of Licensing Songs and Composing Scores for the Television, Film and Videogame". The speakers will be Jeff Brabec (Chrysalis Music Group) and Todd Brabec. See, notice. Prices vary. This event qualifies for continuing legal education (CLE) credits. The ABA will teleconference and webcast this event.

6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Happy Hour". For more information, contact Ben Arden at barden at williamsmullen dot com or Mark Brennan at mark dot brennan at hoganlovells dot com. Location: Brasserie Beck, 1101 K St., NW.

Friday, June 25

9:00 - 10:00 AM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's Enrollment Workgroup will meet  by teleconference. See, notice in the Federal Register, June 16, 2010, Vol. 75, No. 115, at Page 34141.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "Bridging the Gap: Broadband 101 -- An Introduction to Broadband Regulation and Policy". The speaker will be Dan Brenner (Hogan Lovells). For more information, contact Micah Caldwell at mcaldwell at fh-law dot com or Mark Brennan at mark dot brennan at hoganlovells dot com. Location: __.

3:00 PM. The Federal Communications Commission (FCC) will host an event titled "Broadcast Engineering Forum". See, notice. Location: FCC, Commission Meeting Room, 445 12th St., SW.

Deadline to submit comments to the Federal Communications Commission (FCC) and Food and Drug Administration (FDA) in advance of their joint meeting titled "Enabling the Convergence of Communications and Medical Systems: Ways to Update Regulatory and Information Processes", to be held on July 26 and 27, 2010. See, FCC Public Notice (DA 10-1071 in ET Docket No. 10-120).

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [12 pages in PDF] regarding the survivability in broadband communications networks and ways to reduce network vulnerability to failures in network equipment or severe overload conditions, such as would occur in natural disasters and pandemics. The FCC adopted and released this item on April 21, 2010. It is FCC 10-62 in PS Docket No. 10-92. See, notice in the Federal Register, May 11, 2010, Vol. 75, No. 90, at Pages 26180-26183.

Congress, the FCC, and Broadband Regulation

6/17. Opponents of the Federal Communications Commission's (FCC) proposal to regulate broadband internet access service providers under Title II argue that the Congress has not yet legislated on this subject, and this matter should be left to Congressional legislation.

On the other hand, the FCC frequently acts in a legislative manner, and at the direction of certain members of Congress and administration.

It is difficult to enact legislation. One of the functions of administrative agencies is to provide an end around the legislative process. Moreover, some of the companies that are now complaining that the Congress must first legislate have a history of pursuing policy goals through FCC action when they have failed to obtain legislative relief from the Congress.

However, usually when agencies act in a legislative capacity, it is because a minority of legislators, such as key members of one committee, hold up legislation. The present NOI is unusual because a majority of members of Congress are opposed to this legislative action of the FCC.

Rep. Joe Barton (R-TX) put the number at "More than 285 Members". FCC Commissioner Robert McDowell stated at the FCC meeting on June 17 that the number is "291". However, he advised people to check their e-mail to learn of the latest increases.

Genachowski wrote in his June 17 statement, which he read at the FCC's meeting, that "I fully support this Congressional effort."

"Meanwhile", he continued, "as the Congressional Chairs have requested, the FCC has an obligation to move forward". He added that "The Congressional and FCC processes are complementary."

While the FCC and private parties who submit written comments to the FCC, and engage in ex parte communications with FCC people, have certain public disclosure obligations, there is no law that requires that communications between the Congress and the FCC be disclosed. In this respect, some of the most significant elements of the FCC's administrative process are secretive and non-transparent.

Although, sometimes members of Congress issue public statements that touch upon their non-public communications with the FCC.

Rep. Henry Waxman (D-CA), the Chairman of the House Commerce Committee (HCC), issued a statement on June 17, 2010: "Now that the Commission has opened a proceeding to identify the best legal framework for broadband Internet access, I want to reiterate the views expressed in my joint letter of May 5, 2010, with Senator Rockefeller".

The two wrote in their May 5, 2010, letter that "in the near term, we want the agency to use all of its existing authority to protect consumers and pursue the broad objectives of the National Broadband Plan", and "To accomplish these objectives, the Commission should consider all viable options. This includes a change in classification, provided that doing so entails a light regulatory touch, with appropriate use of forbearance authority."

Rep. Waxman (at left) concluded in his June 17 statement that "Although Senator Rockefeller and I recently announced our intention the initiate a process to develop proposals to update the Communications Act, I view this as complementary to what the FCC is doing to affirm the Commission’s authority over broadband. The recently announced Congressional process should in no way hinder or delay the FCC’s efforts."

Sen. John Rockefeller (D-WV), the Chairman of the Senate Commerce Committee (SCC), stated in a release on June 17 that "The recent court decision in the Comcast case was unfortunate -- it created big questions about the FCC’s ability to meaningfully protect consumers in this new broadband age. For this reason, I support the agency seeking comment. As I have said previously, in the short term this is the right course and the right thing to do. In the long term, however, I believe we need to develop consensus to update the law, further safeguard consumers, and spur universal broadband deployment."

Sen. Kay Hutchison (R-TX), the ranking Republican on the SCC, stated in a release that "Today is yet another sign that this Administration does not understand the risks associated with government intervention into what, so far, has been a vibrant and creative platform ... Unfortunately, the FCC has taken the step forward to create new burdensome regulations that threaten to stifle the growth of America’s broadband services. I am hopeful that Congress can move forward on a new path that preserves the openness of the Internet as a platform for innovation and economic growth without expanding the government’s regulatory footprint."

Rep. Joe Barton (R-TX) and Rep. Cliff Stearns (R-FL), the ranking Republicans on the HCC and its Subcommittee on Communications, Technology and the Internet (SCTI), sent a letter to Rep. Waxman and Rep. Rick Boucher (D-VA), the Chairmen of the HCC and its SCTI, asking for a hearing on "the legal validity and policy consequences" on the FCC's proposed reclassification of broadband internet access services.

Rep. Marsha 
BlackburnRep. Marsha Blackburn (R-TN) (at right), a member of the HCC, stated in a release that "In the face of strong bi-partisan opposition, the FCC has decided that laws written to regulate Morse Code will now apply to megabytes. This is a bureaucratic overreach of the first order. I am confident that my colleagues and I will act to overturn it."

For more on the FCC and Congress, see:

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