|House Republicans Warn Genachowski Not to
Adopt Internet Regulation Order at December Meeting
11/19. Some participants in the long running debate over network neutrality mandates
(regulation of the network management practices of broadband internet access service providers)
are now acting as though the Federal Communications Commission (FCC) plans to adopt an order at its
December meeting that contains network neutrality rules. However, the FCC has issued no public
notice or statement to this effect.
Nineteen Republicans on the House Commerce
Committee (HCC) sent a
letter [PDF] to FCC Chairman Julius Genachowski on November 19 warning him that it would
be a "mistake" to adopt a "network neutrality order" at the FCC's December
They wrote that "It has been productive to halt activity on network neutrality absent
clear direction from Congress." They added that "Approximately 300 members of the
House and Senate from both sides of the aisle have indicated that the questions raised in the
network neutrality rulemaking are better left to Congress."
"We understand you are considering circulating a network
neutrality order for vote at the December FCC meeting. That is a mistake", the
nineteen wrote. "We ask you not to circulate such an order."
In addition, Rep. Cliff Stearns
(R-FL), who signed the above referenced letter, also issued a
on November 19 in which he stated that "Recent reports seem to indicate that the Federal
Communications Commission may consider Chairman Genachowski's job killing and investment
freezing net neutrality proposal at the Commission's December meeting".
Rep. Stearns (at right) is the
current ranking Republican on the HCC's Subcommittee on Communications, Technology and the
Internet. He is also vying to become Chairman of the HCC in the 112th Congress.
He added that "Ramming through Internet regulations would ignore the will of a
bipartisan majority of Congress and the American public. It would further impede economic
growth and job creation. Furthermore, since the December meeting agenda will be released next
week when Congress is in recess, it appears that Chairman Genachowski is trying to slip it
under the radar and hope no one notices."
The Commission will hold events titled "open meeting" on November 30 and
December 15, 2010. The FCC has already released a
agenda for the November 30 event. See also, story titled "FCC Releases Tentative
Agenda for November 30 Event" in TLJ Daily E-Mail Alert No. 2,150, November 8, 2010.
Genachowski gave a
November 15 at the National Association of Regulatory
Utility Commissioners (NARUC) annual convention in Atlanta, Georgia, without discussing
network neutrality, or regulation of the network management practices of broadband internet
access service providers.
He praised broadband, 4G wireless technology, and said that more spectrum needs to be
allocated for wireless broadband. He added that "The sooner incentive auction legislation
is adopted, the sooner we can unleash spectrum for mobile broadband". He also discussed
the agenda for the November 30 meeting, but not the agenda for the December 15 meeting.
He also discussed universal service, expansion of universal service, and intercarrier
|Copps Again Advocates FCC
Reclassification and Regulation of Broadband
11/16. Federal Communications Commission (FCC) Commissioner
Michael Copps gave a
pages in PDF] in Albuquerque, New Mexico, in which he again argued that the FCC should
reclassify broadband and regulate it.
Copps recycled text from prior speeches. See, for example, Copps' August 19, 2010,
Minneapolis, Minnesota, and story titled "Copps Pans Google Verizon Deal"
in TLJ Daily E-Mail
Alert No. 2,127, August 20, 2010.
In his November 16 speech he advocated "media democracy", "online
freedom", and "openness of the Internet". He decried "powerful corporate
interests", "a powerful few", and "special interests and gatekeepers and
toll-booth collectors" generally.
He criticized media consolidation, and broadcasters.
He criticized the Google Verizon proposal of August 9, 2010. He complained that it excludes
wireless broadband from regulation, and conceives a tiered internet based upon managed services.
See, story titled
"Verizon and Google Announce Legislative Proposal on Internet Regulation" and related
stories in TLJ Daily E-Mail
Alert No. 2,121, August 9, 2010.
Copps (at left) called for reclassifying broadband,
now, by the FCC, as a Title II telecommunications service, and then regulating broadband.
He rejected arguments that the FCC should "wait for Congress to act". He said that
"moving legislation is no easy feat".
With respect to this FCC regulation of the network management practices of broadband internet
access service providers, he said that "we need a policy that reclassifies these services
as the telecommunications they are and then guarantees an Open internet where you can access
any legal content of your choice, run the applications and attach the devices you want, enjoy
the fruits of a more competitive environment, be assured of non-discrimination, and also
receive maximum transparency so that you, me and the FCC can know what these companies are up
to and we can do something about it when they stray over the line."
With respect to broadcasters, he said that "We need to turn the sham of automatic,
eight-year broadcast relicensing with no questions asked into a process wherein the FCC
examines whether stations are serving the public interest, reflecting the diversity of their
local communities, and providing real news that people can use to make their decisions when
they go to the polls."
He said that there now is "a market controlled by a handful of players, too often
providing little more than infotainment, canned music and program homogenization. Newsrooms
were shuttered, reporters were fired, and investigative journalism consigned to the endangered
|Baker Says FCC
Should Focus on Spectrum, Universal Service Reform and Intercarrier Compensation
11/17. Federal Communications Commission (FCC) Commissioner
Meredith Baker gave a
speech [PDF] titled "Making the 90s Work: Governing Within the ’96 Act". She
offered a summary of the state of telecommunications and the internet in 1996, and reviewed
the contents of 1996 Act. She said that "My tenure at the FCC has been dominated by the
Broadband Plan, and the Net Neutrality and Title7nbsp;II debate."
Baker (at right) also stated that
the "The National Broadband Plan is the clearest evidence of how limited our authority
is over the Internet ecosystem. Of the 207 recommendations detailed in the Plan, the Team
concluded that only half were within the FCC’s authority. The Plan should serve as a constant
reminder that so much of the challenges facing the nation with respect to broadband services
will be resolved beyond our agency -- in the private sector or by other governmental
She said that going forward, the FCC should focus on its "core competencies",
including establishing a "national spectrum plan" and addressing "Universal
service and intercarrier compensation". She elaborated that "when we reach beyond
our core competencies that we too often find ourselves in a political and legal morass. The
Title II fight has underscored that this agency has limited authority and cannot create
jurisdiction on its own".
She also discussed Congressional legislation. She said that "a complete overhaul may not
be likely". She also said that the FCC "needs to do a better job communicating with
the Hill as to the need for targeted legislation to strengthen the FCC's authority to move
forward with its agenda. An area warranting legislative attention next term is spectrum reform
to give both the FCC and NTIA the tools and means to manage spectrum for a digital age. To be
successful, we need to highlight discrete issues that can attract a clear consensus."
|FCC Files Brief in Challenge to Its Program
Access Rules Order
11/17. The Federal Communications Commission (FCC) filed its
brief [101 pages in PDF] with the U.S. Court of
Appeals (DCCir) in Cablevision v. FCC, challenges to the FCC's expansion
of its program access rules to cover terrestrially delivered programming.
The FCC adopted and released the
First Report and
Order [84 pages in PDF] under review on January 20, 2010. That (R&O) is FCC
10-17 in MB Docket No. 07-198.
As with its 2007 Multiple Dwelling Unit Access Order, the FCC relies for
authority upon Section 628 of the Communications Act, which is codified at
47 U.S.C. § 548. In both orders the FCC asserted that Section 628 gives it
more authority than its plain language discloses. The Court of Appeals winked at
the MDU order. The FCC hopes for similar judicial leniency for regulatory
overreach in the present challenge.
Subsection 628(b) provides that "It shall be unlawful for a cable operator, a
satellite cable programming vendor in which a cable operator has an attributable interest, or
a satellite broadcast programming vendor to engage in unfair methods of competition or unfair
or deceptive acts or practices, the purpose or effect of which is to hinder significantly or
to prevent any multichannel video programming distributor from providing satellite cable
programming or satellite broadcast programming to subscribers or consumers." Subsection
(c) authorizes the FCC to writes implementing rules.
The FCC argues in its brief that Section 628 "authorizes it to adopt rules addressing
anticompetitive practices involving terrestrially delivered, cable-affiliated programming"
and its January 20, 2010 R&O "adopted a carefully calibrated approach to the increasing
problem of anticompetitive acts in the context of terrestrially delivered programming".
This case is Cablevision Systems Corp., at al. v. FCC and USA,
U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 10-1062 and
10-1088, petitions for review of a final order of the FCC.
|FCC Argues AT&T and Other Corporations Are
Not Entitled to Privacy Under FOIA
11/9. The Federal Communications Commission (FCC) filed its
merits brief [69 pages in PDF] with the
Supreme Court in FCC v. AT&T,
a case regarding a request for records of the FCC under the federal Freedom of
Information Act (FOIA), which is codified at
5 U.S.C. § 552. AT&T asserts that it is entitled to invoke the statute's personal
privacy exemption. The FCC asserts that the exemption only applies to individuals. The Court of Appeals
SBC (now AT&T) disclosed to the FCC that it had overcharged on an e-rate project. The
FCC investigated. AT&T provided records to the FCC. That matter was long ago resolved by
consent decree. CompTel submitted a request to the FCC
for the AT&T e-rate investigation file, pursuant to the federal FOIA.
AT&T asserted that the FCC could not release the file, because it was
prohibited from doing so under Subsection 552(b)(7(C). It provides that "This
section does not apply to matters that are ... records or information compiled
for law enforcement purposes, but only to the extent that the production of such
law enforcement records or information ... could reasonably be expected to
constitute an unwarranted invasion of personal privacy".
The FCC's Enforcement Bureau (EB) concluded that this subsection is inapplicable to
AT&T, a corporation, because it only applies to "personal" privacy. It does not
apply to a corporation. The FCC issued a
Memorandum Opinion and Order [PDF] rejecting AT&T's request for review of
the EB order. That order is FCC 08-207.
AT&T filed a petition for review of that order with the
U.S. Court of Appeals (3rdCir).
Comptel intervened. On September 22, 2009, the Court of Appeals issued its
opinion [16 pages
in PDF], also reported at 582 F.3d 490, granting the petition, and remanding to
the FCC. The Court of Appeals held, among other things, that under exemption
7(C) and FCC rules, corporations are entitled to privacy. See, story titled "3rd
Circuit Rules in FCC FOIA Case" in
TLJ Daily E-Mail
Alert No. 2,000, October 9, 2009.
The FCC and Department of Justice's (DOJ)
Office of the Solicitor General (OSG)
filed a petition for writ of certiorari with the Supreme Court. The Supreme
Court granted certiorari on September 28, 2010. Oral argument is scheduled for
Wednesday, January 19, 2011, at 10:00 AM. See, Supreme Court
On November 1, the Supreme Court issued an order, stating that "The motion of the
Acting Solicitor General to dispense with printing the joint appendix is granted. Justice Kagan
took no part in the consideration or decision of motion." See, November 1, 2010,
List [25 pages in PDF] at page 1.
The FCC and DOJ argue that "Congress intended the Exemption to protect
individuals, not corporations". It continued that the Court of Appeals' "novel
construction would erroneously create a new and amorphous ``privacy´´ right not
only for corporations but also for local, state, and foreign governments. It
would also leave federal agencies and courts with no meaningful benchmarks
against which to measure whether any invasion of that unprecedented ``privacy´´
interest would be ``unwarranted.´´"
This case is FCC v. AT&T, Supreme Court of the U.S., Sup. Ct. No.
09-1279, a petition for writ of certiorari to the U.S. Court of Appeals for the
3rd Circuit, App. Ct. No. 08-4024. Judge Chagares wrote the opinion of the Court
of Appeals, in which Judges Fuentes and Wallace Tashima (USCA/9thCir) joined.
The Court of Appeals granted a petition for review of a final order of the FCC.
|This issue contains the following items:
• House Republicans Warn Genachowski Not to Adopt Internet Regulation Order at
• Copps Again Advocates FCC Reclassification and Regulation of Broadband
• Baker Says FCC Should Focus on Spectrum, Universal Service Reform and Intercarrier
• FCC Files Brief in Challenge to Its Program Access Rules Order
• FCC Argues AT&T and Other Corporations Are Not Entitled to Privacy Under FOIA
New items are highlighted in
|Monday, November 22
The House will not meet. It will next meet on
Monday, November 29, 2010, at 2:00 PM. See,
The Senate will not meet. It will next meet on
Monday, November 29, 2010, at 2:00 PM.
9:30 - 11:00 AM. The Information
Technology and Innovation Foundation (ITIF) and will host an event to discuss a
report [107 pages in PDF] titled "The Good, The Bad, and The Ugly (and The
Self-Destructive) of Innovation Policy", by Steven Ezell (ITIF) and
Robert Atkinson (ITIF). The
speakers will be Atkinson, Grant Aldonas (Split Rock International), Marcus Noland
(Peterson Institute for International Economics), and
Bruce Stokes (National Journal). See,
notice. This event is free and open to the public. Location: ITIF/ITIC, 6th floor, 1101
K St., NW.
11:00 AM. The Free Press (FP)
will host a news conference by teleconference to release and discuss a report titled
"Restoring FCC Authority to Make Broadband Policy: A Way Forward After Comcast v.
FCC". The speakers will be Tim
Wu (Columbia University law school),
Crawford (Yeshiva University law school), Aparna Sridhar (FP), and Josh Silver (FP). The
call in number is 888-792-8352; the conference ID is 24410747.
12:00 NOON. Deadline to submit written comments to the
Office of the U.S. Trade Representative (OUSTR)
regarding Malaysia's participation in ongoing negotiation of a Trans-Pacific Partnership
(TPP) trade agreement. The OUSTR seeks comments on, among other things, "electronic
commerce issues" and "trade-related intellectual property rights issues that
should be addressed in the negotiations". See,
notice in the
Federal Register, October 20, 2010, Vol. 75, No. 202, at Pages 64778-64779.
Deadline to submit reply comments to the Federal
Communications Commission (FCC) in response to its
Notice of Proposed Rulemaking (NPRM) [79 pages in PDF] regarding expanding the FCC's
disability access technology mandates. The FCC adopted and released this item on August
5, 2010. It is FCC 10-145 in WT Docket No. 07-250. See,
notice in the Federal
Register: September 8, 2010, Vol. 75, No. 173, at Pages 54546-54560. See also,
"FCC Adopts Disability Access Policy Statement, Order, and NPRM" in
TLJ Daily E-Mail Alert No.
2,120, August 6, 2010.
Deadline to submit reply comments to the Federal Communications
Commission (FCC) in response to its
Notice of Proposed Rulemaking and Notice of Inquiry [102 pages in PDF] regarding the
use of microwave for wireless backhaul. The FCC adopted and released this item on
August 5, 2010. It is FCC 10-146 in WT Docket Nos. 10-153, 09-106, and 07-121. See, story
titled "FCC Adopts Wireless Backhaul NPRM and NOI" in
TLJ Daily E-Mail Alert No.
2,120, August 6, 2010, and
notice in the Federal Register, August 24, 2010, Vol. 75, No. 163, at Pages
Deadline to submit comments to the
Copyright Office (CO) regarding its proposed rules
changes affecting deposit account holders. The CO notice states that it proposes to
"set the minimum level of activity required to hold a deposit account at 12
transactions per year; require deposit account holders to maintain a minimum balance in
that account; mandate the closure of a deposit account the second time it is overdrawn; and
offer deposit account holders the option of automatic replenishment of their account via
their bank account or credit card." See,
notice in the
Federal Register, October 8, 2010, Vol. 75, No. 195, at Pages 62345-62348.
|Tuesday, November 23
|The House will not meet.
The Senate will not meet.
Supreme Court conference day (discussion of argued
cases, and decision on cert petitions). Closed.
10:30 AM - 12:00 NOON. The
Heritage Foundation will host a panel
discussion titled "Southeast Asian Economic Community and American
Interests". The speakers will include
Barbara Weisel, Assistant U. S. Trade Representative for Southeast
Asia and the Pacific. See,
notice. The HF will
webcast this event. Location: HF, 214 Massachusetts Ave., NE.
|Wednesday, November 24
Deadline to submit initial comments to the Federal
Communications Commission (FCC) in response to its October 25, 2010,
Public Notice (PN) regarding its closed captioning rules. This PN
is DA 10-2050 in CG Docket 05-231, ET Docket No. 99-254. See,
notice in the
Federal Register, November 17, 2010, Vol. 75, No. 221, at Pages 70168-70169.
|Thursday, November 25
Thanksgiving Day. This is a federal holiday. See, Office of
Personnel Management's (OPM)
page titled "2010 Federal Holidays".
|Friday, November 26
Deadline to submit comments to the Department of Defense (DOD) in response
to its notice of proposed rulemaking regarding amending its Defense Federal Acquisition
Regulation Supplement (DFARS) regarding patents, data, and copyrights, including for
software. See, notice in
the Federal Register, September 27, 2010, Vol. 75, No. 186, at Pages 59411-59468.
|Monday, November 29
The House will meet at 2:00 PM. See,
The Senate will meet at 2:00 PM.
9:00 AM. The House Ethics
Committee (House Committee on Standards of Official Conduct) will hold its
"adjudicatory hearing" in the matter of Rep.
Maxine Waters (D-CA). See,
Deadline to submit initial comments to the Federal Communications
Commission (FCC) in response to its
Notice of Proposed Rulemaking (NPRM) [25 pages in PDF] regarding commercial radio
operator licenses for maritime and aviation radio stations who perform certain functions
performed within the commercial radio operators service. The FCC adopted this item on
August 31, 2010, and released the text on September 8, 2010. It is FCC 10-154 in WT Docket
No. 10-177. See, notice in
the Federal Register, October 29, 2010, Vol. 75, No. 209, at Pages 66709-66715.
Deadline to submit comments to the Copyright Royalty Judges (CRJ) in
response to the CRJ's request for comments on a motion of Phase I claimants
for partial distribution in connection with the 2008 cable royalty funds.
The CRJ also request comments as to the existence of Phase I and Phase II
controversies with respect to the distribution of 2008 cable royalty funds.
See, notice in
the Federal Register, October 29, 2010, Vol. 75, No. 209, at Pages 66798-66799.
Deadline to submit comments to the Copyright Royalty Judges (CRJ) in
response to the CRJ's request for comments on a motion of Phase I claimants for partial
distribution in connection with the 2008 satellite royalty funds. The CRJs also
request comments as to the existence of Phase I and Phase II controversies with respect
to the distribution of 2008 satellite royalty funds. See,
notice in the
Federal Register, October 29, 2010, Vol. 75, No. 209, at Pages 66799-66800.
|About Tech Law
Tech Law Journal publishes a free access web site and
a subscription e-mail alert. The basic rate for a subscription
to the TLJ Daily E-Mail Alert is $250 per year for a single
recipient. There are discounts for subscribers with multiple
Free one month trial subscriptions are available. Also,
free subscriptions are available for federal
elected officials, and employees of the Congress, courts, and
executive branch. The TLJ web site is free access. However,
copies of the TLJ Daily E-Mail Alert are not published in the
web site until two months after writing.
For information about subscriptions, see
subscription information page.
Tech Law Journal now accepts credit card payments. See, TLJ
card payments page.
TLJ is published by
carney at techlawjournal dot com
P.O. Box 4851, Washington DC, 20008.
Copyright 1998-2010 David Carney. All rights reserved.