|FCC Adopts Net Neutrality
5/15. The Federal Communications Commission (FCC) adopted and released a
Notice of Proposed Rulemaking (NPRM) that once again proposes rules for the regulation
of the network management practices of broadband internet access service (BIAS) providers.
The Commission divided 3-2 along party lines, as it did when it adopted rules in 2010. The
U.S. Court of Appeals (DCCir) vacated the key
parts of those rules. Tom Wheeler, Mignon Clyburn and Jessica Rosenworcel supported this
NPRM. Ajit Pai and Michael O'Reilly opposed it. Representatives and Senators also
divided along party lines.
The deadline to submit initial comments is July 15, 2014. The deadline to
submit reply comments is September 10, 2014.
Summary. This NPRM includes the text of proposed rules. These would reinstate much
of the text contained in the rules adopted in December of 2010. See, December 2010
Order (R&O) [194 pages in PDF]. See also, related story in this issue titled
"Summary of the FCC's Proposed Net Neutrality Rules".
The asserted authority for these rules remains Section 706 of the
Communications Act, which is codified at
47 U.S.C. § 1302. This section
merely contains the policy statement that the FCC and state commissions "shall encourage
the deployment on a reasonable and timely basis of advanced telecommunications
However, the NPRM asks for comments on the alternative approach of reclassifying BIAS
as a Title II (common carrier) service.
The 2010 rules banned the undefined practice of "discrimination". The Court of
Appeals vacated that part of the 2010 order, but suggested that the FCC might have authority
to regulate commercially unreasonable practices by BIAS providers without reclassification.
See, January 14, 2014
opinion in Verizon v. FCC, and December 4, 2012
opinion in Cellco Partnership v. FCC, which upheld the FCC's data roaming rules,
and created a "commercially reasonable" standard.
The new rules do ban commercially unreasonable practices, but provide no definition or
explanation of what this means. The proposed rules not state, for example, whether and
when pay for priority agreements between BIAS providers and edge providers are commercially
unreasonable practices. See also, related story in this issue titled "Net Neutrality
NPRM and Pay for Priority Agreements".
The 2010 rules banned certain blocking. The Court of Appeals also vacated
that. The new rules reinstate the vacated rules.
The 2010 rules imposed certain disclosure requirements. The Court of Appeals affirmed
that. The new rules would expand the data disclosure mandates imposed upon BIAS providers,
to put the public on notice regarding the nature of their services, and their business
practices. The rules label this "transparency".
Transparency, in the context of government regulation, entails written disclosure of the
rules in a manner that puts the public on notice regarding what is or is not prohibited. To
the extent that these rules are full of undefined terms of uncertain meaning, the FCC is
itself failing to act with transparency.
The proposed rules would impose a less regulatory regime for wireless BIAS
than for fixed BIAS. The ban on commercially unreasonable practices would only
applies to fixed BIAS providers, and the ban on blocking would be applied in a
less burdensome manner for wireless BIAS providers.
Many Congressional Republicans criticized the FCC for once again pursuing an unnecessary
regulatory regime. In contrast, many Congressional Democrats praised the FCC for promoting
an open internet. Some of these also urged the FCC to go further and regulate BIAS providers
as common carriers.
FCC Commissioners and Members of Congress offered vastly different interpretations
of this FCC NPRM.
FCC Chairman Tom Wheeler (at right) wrote in his
statement that "Today we take another step in what has been a decade -- long effort
to preserve and protect the Open Internet. Unfortunately, those previous efforts were blocked
twice by court challenges by those who sell Internet connections to consumers. Today this agency
moves to surmount that opposition and to stand up for consumers and the Open Internet."
FCC Commissioner Ajit Pai wrote in his
statement that "A dispute this fundamental is not for us, five unelected individuals,
to decide. Instead, it should be resolved by the people’s elected representatives, those who
choose the direction of government -- and those whom the American people can hold accountable
for that choice. I am therefore disappointed that today, rather than turning to Congress, we
have chosen to take matters into our own hands. It is all the more disappointing because we
have been down this road before. Our prior two attempts to go it alone ended in court defeats.
Even with the newfangled tools the FCC will try to pull out of its legal grab-bag, I am
skeptical that the third time will be the charm."
Pai argued that whether the FCC relies on Title II or Section 706, the
consequence will be to "wreak havoc on the Internet economy".
He lamented that "we are going to act like our own mini-legislature" and
"usurp Congress's role".
Another view would be that it is the Congress and President who have constituted the
FCC to act in a legislative manner. It is not usurpation. It is delegation. It is hard to
pass a bill. There are not enough votes to pass a net neutrality act. Proponents have tried
and failed many times. Yet, most House and Senate Democrats, and President Obama, favor some
sort of net neutrality regime. The FCC is acting as their agent, not their usurper, doing
for them what they cannot do through the Constitutionally ordained legislative process.
Congressional Republicans employed the FCC is a similar manner in other rule making
proceedings during the Bush administration.
The White House news office released a
statement that once again discloses that President Obama does not view the FCC as an
independent expert agency. It states that "we will carefully review their proposal",
and that "we are pleased to see that" Chairman Wheeler "is keeping all options
on the table." This statement concludes that "The President ... will consider any
option that might make sense."
Congressional Statements. Sen. John
Rockefeller (D-WV), Chairman of the Senate
Commerce Committee (SCC), stated in a
release that "The FCC took an important step forward today to preserve an open
Internet. The American people do not care what magic words the FCC uses to assert its
authority, they just want the assurance that the Internet will remain free and open. That
is why I am glad that all options are on the table, including Title II. It is critical
for the FCC to use its full authority to reinstate these critical consumer protections for
Sen. John Thune (R-SD), the ranking Republican
on the SCC, and Sen. Mitch McConnell
(R-KY) and the rest of the Senate Republican leadership, sent a
letter to FCC Chairman Wheeler on February 13 in
which they opposed this NPRM.
Sen. Thune (at right) "Unfortunately, you have
chosen to have the FCC again undertake a politically corrosive rulemaking, relying upon new
and untested court-defined powers rather than upon clear Congressional intent and statutory
They continued that "Of even greater concern would be using Title II of the
Communications Act to regulate broadband, which some voices have called for in recent days.
So-called ``net neutrality´´ restrictions are unnecessary, but using Title II
reclassification to impose them would create tremendous legal and marketplace uncertainty
and would undermine your ability to effectively lead the FCC."
Rep. Fred Upton (R-MI) and
Rep. Greg Walden (R-OR), the Chairman of the
House Commerce Committee (HCC) and the HCC's
Subcommittee on Communications and Technology (SCT), stated in a
joint release that "Free from regulation and government meddling, the Internet
as we know it has thrived. Sadly, these unnecessary rules the commission proposed today
will have a chilling effect on job creation and innovation without any corresponding
consumer benefit. These rules are a solution in search of a problem. Worse still, any
attempt to reclassify broadband Internet embarks on a worrisome course for its future ...
With so much at stake, Chairman Wheeler has ignored the bipartisan congressional calls
Rep. Anna Eshoo (D-CA), the ranking Democrat on
the HCC's SCT, stated in a
release that "the proposed rules must be strong enough to prevent online gatekeepers
from creating fast and slow lanes, and stand on strong legal ground to avoid yet another round
of legal challenges." She added that "I specifically welcome the Commission's
consideration of a stronger legal framework -- Title II -- that reclassifies broadband as a
Proponents of Title II Common Carrier Regulation. Ed Black, head of the
Computer and Communications Industry Association (CCIA),
stated in a
release that "We appreciate that the Commission has kept an open mind about the
best way forward in terms of a legal framework for guarding Internet openness. Wheeler
called the Internet a national asset that he will not allow to be compromised. We hope
that strong verbal commitment indicates the FCC is ready to in good faith explore all its
options including its authority under Title II of the Communications Act to protect
the Open Internet."
Michael Weinberg of the Public Knowledge (PK) stated in a
release that "The FCC’s proposal still falls well
short of real net neutrality rules. It would create a two-tier internet where
“commercially reasonable” discrimination is allowed on any connections that
exceed an unknown “minimum level of access” defined by the FCC. A two-tier
internet is anathema to a truly open internet, and rules under section 706
authority are insufficient to prevent harmful paid prioritization."
He added that "only robust net neutrality rules that prevent paid prioritization,
grounded in clear Title II authority, will suffice. Any rules that allow for
harmful discrimination cannot truly be called net neutrality. And any rules
based on creaky legal authority are just a waste of everyone's time."
Weinberg also wrote a
short piece on May 16 titled "How The FCC's Proposed Fast Lanes Would Actually
Candace Clement of the Free Press stated in a
that "the rules pay lip service to the idea of the open Internet while proposing
solutions that would create a two-tiered Internet with fast lanes for those who can afford
it -- and dirt roads for the rest of us." She added that "the FCC needs to
reclassify broadband providers as common carriers under Title II".
Gabe Rottman of the American Civil Liberties Union (ACLU) stated in a
release that "This proposed rule leaves the individual at the mercy of an increasingly
concentrated broadband market, in which the big players will be able to act as
gatekeepers for online speech, deciding what gets seen and when. Fortunately,
the FCC left the door open to fix this problem by reclassifying broadband
internet service as what it really is: a public utility, or in legal terms, a
`common carrier,´ which we will continue to vigorously advocate for. This is a
First Amendment issue because if broadband service providers are allowed to slow
or block some content at will, they will be able to stifle the speech of
BIAS Providers. BIAS providers condemned the idea of subjecting BIAS
to common carrier regulation.
Michael Powell, head of the National Cable &
Telecommunications Association (NCTA) stated in a
release that "we stand ready to work constructively with the FCC and other
stakeholders -- as we did in 2010 -- to develop a balanced approach that protects the open
Internet while fostering continued investment and innovation in America’s broadband networks.
But as we do so, we will continue to reiterate our unwavering opposition to any proposals
that attempt to reclassify broadband services under the heavy-handed regulatory
yoke of Title II. Treating broadband as a utility-like Title II service would
reverse years of settled precedent, dry up investment in broadband deployment
and network upgrades, and result in protracted litigation and marketplace
Walter McCormick, head of the US Telecom, stated in a
release that this NPRM "maps a path of questions and proposals that raise significant
issues for the Internet and our Internet economy. We fully support a broad public inquiry on
how best to maintain and improve an open and transparent Internet, and our industry remains
firmly committed to open Internet principles. But we believe that even raising the
spectre of regulation under Title II is ill-advised. The robust investment and
rapid innovation that characterizes the Internet today exists precisely because
prior administrations -- both Democratic and Republican -- have recognized the
importance of keeping 19th century regulation away from 21st century technology.
We believe today’s proceeding will lead to a renewed recognition of the
essential role that light-touch regulation has played in creating the world’s
leading Internet economy."
Steve Largent, head of the CTIA Wireless Association stated in a
release that "The defining characteristics of wireless broadband are that it
is fast-evolving, still-developing, and robustly competitive, and we urge policymakers
to not impede the wireless industry's virtuous cycle of investment and innovation."
Largent continued that "wireless remains inherently different from other forms of
broadband, whether considering that spectrum needed to fuel wireless broadband
is finite, the additional network management required to provide a high quality
experience in a mobile environment or the numerous competitive choices available
for mobile broadband consumers. In fact, 98 percent of Americans have at least
three or more providers to choose from. While we will carefully review the
Commission’s Notice of Proposed Rulemaking, we are deeply concerned about
proposals that would impose anachronistic Title II regulation on any broadband
Internet access offerings. Rotary-phone era regulation has no place applying to
next-generation, wireless broadband services and would deter investment in
network infrastructure, inhibit innovation and undercut U.S. competitiveness,
all to the detriment of American consumers."
Comcast is currently bound by all of the FCC's 2010 rules. It made a commitment to that
effect during the FCC's review of its merger with NBCU. It has offered to extend that
commitment in connection with its pending merger with Time Warner Cable.
Comcast's David Cohen stated in a
release that the 2010 rules "struck the appropriate balance", but that "any
proposal to reclassify broadband Internet access as a telecommunications service subject to
Title II of the Communications Act would spark massive instability, create investor and
marketplace uncertainty, derail planned investments, slow broadband adoption, and kill jobs
AT&T's Jim Cicconi stated in a
release that AT&T supported the FCC's 2010 rules, but "Going backwards 80 years
to the world of utility regulation would represent a tragic step in the wrong direction.
Utility regulation would strangle investment, hobble innovation, and put government regulators
in charge of nearly every aspect of Internet-based services."
Randal Milch of Verizon, which successfully challenged the FCC's 2010 rules, stated in a
release that "one thing is clear: For the FCC to impose 1930s utility regulation on
the Internet would lead to years of legal and regulatory uncertainty and would jeopardize
investment and innovation in broadband."
This NPRM is FCC 14-61 in GN Docket No. 14-28.
|Summary of the FCC's Proposed Net Neutrality
5/15. The following is a summary of the rules proposed by the Federal Communications
Commission's (FCC) May 15, 2014
of Proposed Rulemaking (NPRM), with comparisons to the rules adopted in December of 2010.
Purposes. The 2010 rules stated that "The purpose of this Part is to
preserve the Internet as an open platform enabling consumer choice, freedom of
expression, end-user control, competition, and the freedom to innovate without
The proposed new rules provide a revised version of this statement. The
old reference to preserving the internet is changed to protecting and promoting
the internet. Also, the new rules add a reference to encouragement of deployment
The statement of purpose in the just proposed rules is a follows (with
changes and additions shown in red): "The purpose of this Part is to
protect and promote the Internet as an open
platform enabling consumer choice, freedom of expression, end-user control,
competition, and the freedom to innovate without permission,
and thereby to encourage the deployment of advanced
telecommunications capability and remove barriers to infrastructure investment.
Mandatory Disclosures. The proposed rules would impose expanded
"Transparency" requirements on BIAS providers, requiring that they make certain
disclosures to the public. The new rules would impose many increased disclosure
requirements, both regarding the content of disclosures, and timeliness.
The 2010 rules provided that "A person engaged in the provision of broadband
Internet access service shall publicly disclose accurate information regarding the network
management practices, performance, and commercial terms of its broadband Internet access
services sufficient for consumers to make informed choices regarding use of such services
and for content, application, service, and device providers to develop, market, and maintain
The just proposed rules state that BIAS providers "shall publicly disclose accurate
information regarding the network management practices, performance, and commercial terms ...
in a manner tailored (i) for end users to make informed choices regarding use of such services,
(ii) for edge providers to develop, market, and maintain Internet offerings, and (iii) for the
Commission and members of the public to understand how such person complies with the requirements
described in" the proposed rules regarding "No Blocking" and "No
Commercially Unreasonable Practices".
More specifically, the proposed rules require BIAS providers to disclose "meaningful
information regarding the source, timing, speed, packet loss, and duration of congestion".
Moreover, BIAS providers must disclose "in a timely manner ... when they make changes to
their network practices as well as any instances of blocking, throttling, and pay-for-priority
arrangements, or the parameters of default or ``best effort´´ service as distinct from any
The new rules add the requirement that BIAS providers disclose "timing, speed,
packet loss, and duration of congestion" data. The new rules also add references to
"edge providers", "throttling", "pay-for-priority arrangements",
or "default" or "priority service".
However, the proposed rules do not define the term "throttling". Nor does the
discussion in the NPRM provide a definition or explanation. However, the NPRM does seek
comments on "throttling".
Restrictions on Blocking by Fixed and Mobile BIAS Providers. The just released
proposed rules regarding blocking are not changed from the 2010 rules. (The Court of Appeals
vacated the 2010 blocking rule.) Moreover, the definitions of fixed and mobile BIAS remain
unchanged. However, the new rules add a definition of blocking.
First, the rule for fixed BIAS providers is as follows: "A person engaged in the
provision of fixed broadband Internet access service, insofar as such person is so engaged,
shall not block lawful content, applications, services, or non-harmful devices, subject to
reasonable network management."
Second, the rule for mobile BIAS providers is as follows: "A person engaged in the
provision of mobile broadband Internet access service, insofar as such person is so engaged,
shall not block consumers from accessing lawful websites, subject to reasonable network
management; nor shall such person block applications that compete with the provider’s voice
or video telephony services, subject to reasonable network management."
A fixed BIAS provider is one "that serves end users primarily at fixed endpoints using
stationary equipment. Fixed broadband Internet access service includes fixed wireless services
(including fixed unlicensed wireless services), and fixed satellite services."
(Parentheses in original.)
A mobile BIAS provider is one "that serves end users primarily using mobile
The new rules provide the following definition of the term "block": "The
failure of a broadband Internet access service to provide an edge provider with a minimum
level of access that is sufficiently robust, fast, and dynamic for effective use by end users
and edge providers."
The 2010 rules made no reference to "edge provider". The new rules reference
edge providers in both the mandatory disclosures section, and in the definition of blocking,
which in turn affects the section that regulates blocking. The new rules define "edge
provider" as "Any individual or entity that provides any content, application, or
service over the Internet, and any individual or entity that provides a device used for
accessing any content, application, or service over the Internet."
Unreasonable Discrimination v. Commercially Unreasonable Practices.
The 2010 rules included a ban on "discrimination". The Court of Appeals vacated
that rule. The new rules replace this with a ban on "commercially unreasonable
The 2010 rules provided that "A person engaged in the provision of fixed broadband
Internet access service, insofar as such person is so engaged, shall not unreasonably
discriminate in transmitting lawful network traffic over a consumer’s broadband Internet
access service. Reasonable network management shall not constitute unreasonable
The new rules provide that "A person engaged in the provision of fixed broadband
Internet access service, insofar as such person is so engaged, shall not engage in
commercially unreasonable practices. Reasonable network management
shall not constitute a commercially unreasonable practice."
The 2010 rules did not define "unreasonably discriminate". The new rules do
not define "commercially unreasonable".
Both the BIAS providers, and the companies that these rules are promulgated
to benefit, are left without advance notice of whether certain business
practices will be found by the FCC to be commercially unreasonable. In practice,
businesses may not learn until long after a practice has been implemented that
it either is, or is not, unreasonable.
The definition of "reasonable network management" remains unchanged: "A
network management practice is reasonable if it is appropriate and tailored to achieving
a legitimate network management purpose, taking into account the particular network
architecture and technology of the broadband Internet access service."
Moreover, the new rules repeat verbatim the 2010 rules' exceptions for fighting copyright
infringement and other unlawful activity, for providing emergency communications, and for
facilitating the surveillance objectives of law enforcement or intelligence agencies.
That is, "Nothing in this part supersedes any obligation or authorization a provider
of broadband Internet access service may have to address the needs of emergency communications
or law enforcement, public safety, or national security authorities, consistent with or as
permitted by applicable law, or limits the provider’s ability to do so" and "Nothing
in this part prohibits reasonable efforts by a provider of broadband Internet access service
to address copyright infringement or other unlawful activity."
Peering. Some companies, such as Netflix, have argued that the FCC should address
peering along with net neutrality.
See for example, stories titled "Netflix's Hastings Complains About Lack of
Interconnectivity" in TLJ
Daily E-Mail Alert No. 2,635, March 24, 2012, and "Wheeler Says NPRM Will Seek
Comments But Not Propose Rules on Internet Peering" in TLJ Daily E-Mail Alert No.
2,649, April 29, 2014.
However, the proposed rules contain nothing regarding peering.
Chairman Wheeler wrote that "Separate and apart from this connectivity is the
question of interconnection (``peering´´) between the consumer’s network provider and the
various networks that deliver to that ISP. That is a different matter that is better
addressed separately. Today's proposal is all about what happens on the broadband provider's
network and how the consumer’s connection to the Internet may not be interfered with or
The NPRM states (at Paragraph 59) that the 2010 rules "applied to a broadband
provider's use of its own network but did not apply the no-blocking or unreasonable
discrimination rules to the exchange of traffic between networks, whether peering, paid
peering," or certain other activities.
The NPRM then states that "We tentatively conclude that we should maintain
this approach, but seek comment on whether we should change our conclusion."
|This issue contains the following items:
• FCC Adopts Net Neutrality NPRM
• Summary of the FCC's Proposed Net Neutrality Rules
• Net Neutrality NPRM and Pay for Priority Agreements
New items are highlighted in
|Monday, May 19
The House will meet at 12:00 NOON for morning
hour, and at 2:00 PM for legislative business. The House will consider numerous
non-technology related items under suspension of the rules. votes will be postponed
until 6:30 PM. See, Rep. Cantor's
The Senate will meet at 11:00 AM in pro forma
12:00 NOON - 2:00 PM. The Tech
Freedom will host an event titled "IP Transition Luncheon Briefing".
The speakers will be Jodie Griffin (Public Knowledge), Hank
Hultquist (AT&T), Berin Szoka (Tech Freedom), Christopher Yoo (University of
Pennsylvania School of Law), and David Young (Verizon). Free. Open to the public.
Lunch will be served starting at 11:30 AM. See,
notice. Location: United Methodist Building, Rooms 1 & 2, 100 Maryland
2:00 - 2:30 PM. The Federal Communications Commission's (FCC)
Consumer Advisory Committee will meet. See,
in the Federal Register, Vol. 79, No. 78, April 23, 2014, at Page 22672. Location:
FCC, Room TW-C438/468, 445 12th St., SW.
3:00 - 4:00 PM. The Office of the U.S.
Trade Representative's (OUSTR) Industry Trade Advisory Committee on Small and
Minority Business will hold a partially closed meeting. See,
the Federal Register, Vol. 79, No. 87, May 6, 2014, at Pages 25982-25983. Location: Suite
M800, Training Room C, Ronald Reagan International Trade Center, 1300 Pennsylvania
|Tuesday, May 20
The House will meet at 10:00 AM for morning
hour, and at 12:00 NOON for legislative business. The agenda for the week includes
consideration of HR 4225
"Stop Advertising Victims of Exploitation Act of 2014" or "SAVE
Act". See, stories titled "House Judiciary Committee to Mark Up Sex Ads Bill" in TLJ
Daily E-Mail Alert No. 2,648, April 28, 2014, and "House Judiciary Committee Approves
Bill to Criminalize Online Sex Advertising" in TLJ Daily E-Mail Alert No. 2,651, May 1,
2014. The schedule for the week also includes possible consideration of
HR 3361 [LOC |
"Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping,
Dragnet-collection, and Online Monitoring Act'' or "USA FREEDOM Act", a bill to
limit the surveillance powers of the government by stating that several provisions of
surveillance law may not be used for bulk collection of information. See, story titled
"House Judiciary and Intelligence Committees Approve Bill to Limit NSA Bulk Collection of
Data" in TLJ Daily E-Mail Alert No. 2,656, May 8, 2014. See, Rep. Cantor's
10:00 AM. The
Judiciary Committee (SJC) will hold a hearing on several U.S. District
Court nominees: Randolph Moss (DC), Andre Birotte (CDCal), John deGravelles (MDLa),
Robin Rosenberg (SDFl), and Ronnie White (EDMo). Webcast. See,
notice. Location: Room 226, Dirksen Building.
10:30 AM. The
House Commerce Committee's (HCC) Subcommittee on Communications and
Technology will hold a hearing titled "Oversight of the Federal Communications
Commission". Webcast. See,
notice. Location: Room 2123, Rayburn Building.
11:00 AM - 2:00 PM. The National
Science Foundation's (NSF) Networking and Information
Technology Research and Development (NITRD) Program's Large Scale Networking Joint
Engineering Team (LSN/JET) meets the third Tuesday of each month. See,
in the Federal Register, Vol. 78, No. 226, November 22, 2013, at Page 70076.
Location: NSF, 4201 Wilson Boulevard, Arlington, VA.
1:00 - 5:00 PM. The Department of Commerce's (DOC)
National Telecommunications and Information
Administration (NTIA) will host one of its series of meetings regarding
privacy and facial recognition technology. See,
in the Federal Register, Vol. 78, No. 235, December 6, 2013, at Pages 73502-73503.
Location: American Institute of Architects, 1735 New York Ave., NW.
2:30 PM. The
Intelligence Committee (SIC) will hold a closed hearing on undisclosed matters. See,
notice. Location: Room 219, Hart Building.
5:00 PM. Deadline to submit requests to to attend, either on site
or online, the May 22, 2014 meeting of the Department of Homeland Security's (DHS)
Customs and Border Protection's (CBP)
Advisory Committee on
Commercial Operations of Customs and Border Protection in Miami, Florida. See,
in the Federal Register, Vol. 79, No. 86, May 5, 2014, at Pages 25608-25609, and CBP
7:30 - 9:30 PM. The
Tech America Foundation will host an event titled "American Technology
Awards". Location: 1776, 1133 15th St., NW.
|Wednesday, May 21
9:15 - 11:15 AM. The
President's National Security Telecommunications Advisory Committee (NSTAC) will
hold a closed meeting. The agenda is a discussion of cyber security threats. See,
the Federal Register, Vol. 79, No. 85, May 2, 2014, at Pages 25138-25139. Location:
9:30 AM - 3:00 PM. The Department of Health and Human Services' (DHHS)
Office of the National Coordinator for Health
Information Technology's (ONC/HIT) HIT Standards Committee will meet. See,
the Federal Register, Vol. 78, No. 243, December 18, 2013, at Page 76627-76628.
RESCHEDULED FROM MAY 8. 10:00 AM. The
House Homeland Security Committee's (HHSC)
Subcommittee on Couterterrorism and Intelligence and Subcommittee on Cybersecurity,
Infrastructure Protections, and Security Technologies will hold a hearing titled
"Assessing Persistent and Emerging Cyber Threats to the U.S. Homeland".
The witnesses will be __. See,
notice. Location: Room 311, Cannon Building.
10:00 AM. The
Judiciary Committee (SJC) will hold a hearing titled "Oversight of the
FBI". The witness will be FBI Director James Comey. See,
notice. Location: Room 226, Dirksen Building.
12:00 NOON. The Cato Institute will
host a panel discussion titled "Suspending the Law: The Obama Administration's
Approach to Extending Executive Power and Evading Judicial Review". The speakers
will be Andrew Grossman (Cato), Nicholas Rosenkranz (Georgetown University Law Center),
(George Washington University Law School), and Ilya Shapiro (Cato). Free. Open to the
public. Webcast. Lunch will be served after the program. See,
notice. Location: Cato, 1000 Massachusetts Ave., NW.
12:30 - 2:00 PM. The
American Intellectual Property Law Association (AIPLA) will host a webcast
panel discussion titled "Open Source: Getting Important Nuts & Bolts for
Free?". The speakers will be Clifford Allen (Microsoft), Terry Ilardi
(IBM), John Lyon (Thomas Horstemeyer), and Michael Atlass (Qualcomm). CLE
credits. Prices vary. See,
12:45 - 4:00 PM. The President's
National Security Telecommunications Advisory Committee (NSTAC) will hold a
meeting. The agenda is panel discussion comprised of members from Canada, the United
Kingdom, and the U.S. who will discuss their country's approaches to infrastructure
protection. Open to the public. See,
the Federal Register, Vol. 79, No. 85, May 2, 2014, at Pages 25138-25139. Location:
Eisenhower Executive Office Building.
EXTENDED FROM APRIL 14. 5:00 PM. Deadline to submit comments to
the Copyright Office (CO) regarding "Orphan
Works and Mass Digitization". See, original
the Federal Register (FR), Vol. 79, No. 27, February 10, 2014, at Pages 7706-7711, and
in the FR, Vol. 79, No. 65, April 4, 2014, at Page 18932.
6:00 - 7:30 PM. The Federal
Communications Bar Association's (FCBA) International Committee will host an event
titled "Reception". The speaker will be Daniel Sepulveda (Deputy
Assistant Secretary of State and U.S. Coordinator for International Communications and
Information Policy). No webcast. No CLE credits. Prices vary. The deadline for
registrations and cancellations is 5:00 PM on May 19. See,
Location: Wiley Rein, 1776 K St., NW.
Deadline to submit comments to the U.S.
Patent and Trademark Office (USPTO) in response to its proposal to amend its rules
related to collective trademarks, collective service marks, and collective membership marks,
and certification marks to clarify application requirements, allegations of use requirements,
multiple class application requirements, and registration maintenance requirements for such
marks. See, notice
in the Federal Register, Vol. 79, No. 34, February 20, 2014, at at Pages 9678-9697.
|Thursday, May 22
Supreme Court conference day.
See, October Term 2013
Day one of four of elections for the
9:15 AM. The
House Commerce Committee's (HCC) Subcommittee on Commerce, Manufacturing and Trade
will meet to mark up HR __, a yet to be introduced bill regarding demand letters that
allege patent infringement. Webcast. See,
notice. Location: Room 2123, Rayburn Building.
9:30 AM. The
Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda
once again includes consideration of S 1720
"Patent Transparency and Improvements Act of 2013". See, stories titled
"Patent Legislation Update" in TLJ Daily E-Mail Alert No. 2,637, April 7, 2014,
and "Senate Judiciary Committee Members Still Working on Patent Bill" in TLJ
Daily E-Mail Alert No. 2,641, April 17, 2014. Webcast. See,
notice. Location: Room 226, Dirksen Building.
10:00 - 1:45 AM. The New
America Foundation (NAF) will host an event titled "Globalization
Goes Digital". The speakers will address cross border flows of data,
goods, services, finance, and talent. The speakers
will include Eric Schmidt (Google and NAF) and Eric Spiegel (P/CEO of
Siemens USA). Free. Open to the public. Webcast. See,
Location: NAF, Suite 400, 1899 L St., NW.
1:00 - 5:00 PM. The Federal
Aviation Administration's (FAA) Radio Technical Commission for Aeronautics' (RTCA)
Special Committee 228, Minimum Operational Performance Standards for Unmanned Aircraft
Systems, will meet. See,
the Federal Register, Vol. 79, No. 68, April 9, 2014, at Page 19705. Location: RTCA,
Suite 910, 1150 18th St., NW.
1:00 - 5:00 PM. The Department of Homeland Security's (DHS)
Customs and Border Protection's (CBP)
Advisory Committee on
Commercial Operations of Customs and Border Protection will meet online and on
site (in Miami, Florida). The DHS engages in several technology related activities,
including enforcement of intellectual property rights (IPR) by seizing infringing goods,
seizure of domain names, and warrantless searches of laptops, tablets, phones and other
devices at entry points. The agenda for the meeting includes discussion of "the
recommendations on the Intellectual Property Rights (IPR) Working Group's work to
determine the feasibility of a Partnership Program for IPR" and "application
of the Document Imaging System as a tool for IPR authentication". See,
the Federal Register, Vol. 79, No. 86, May 5, 2014, at Pages 25608-25609, and CBP
notice. The deadline to submit comments is May 15, 2014. The deadline to register
to attend, either on site or online, is 5:00 PM EST on May 20, 2014. See, FR, Vol. 79, No.
86, May 5, 2014, at Pages 25608-25609.
6:00 - 8:15 PM. The Federal
Communications Bar Association's (FCBA) Engineering and Technical Committee will host
an event titled "Repacking Broadcasters: A Technical and Legal Discussion".
The speakers will be __. CLE credits. Prices vary. No webcast. The deadline for registrations
and cancellations is 5:00 PM on May 21. See,
notice. Location: __.
Deadline to submit nominations for Co-Chair of the
Federal Communications Bar Association's (FCBA)
Young Lawyers Committee. Submit nominations by e-mail to Justin Faulb at jfaulb at
nab dot org and Lindsey Tonsager ltonsager at cov dot com.
|Monday, May 26
Memorial Day. This is a federal holiday. See, Office of Personnel
Management's (OPM) 2014
calendar of federal holidays.
|Tuesday, May 27
12:15 - 1:30 PM. The Federal
Communications Bar Association's (FCBA) Young Lawyers Committee will host an event
titled "Co-Chair Election and Planning Meeting". Location:
Covington & Burling, 1201 Pennsylvania
11:59 PM. Deadline to submit comments to the
National Institute of Standards and Technology
(NIST) in response to its request for information on its potential transition of
Internet Time Service
(ITS) from a NIST only service to private sector operation of an ensemble of time servers
that will provide NIST traceable time information in a number of different formats over the
notice in the Federal Register, Vol. 79, No. 58, March 26, 2014, at Pages
Deadline to submit reply comments to the Federal Communications
Commission (FCC) in response to Part VI(A) of its
Further Notice of Proposed
Rulemaking (FNPRM) regarding closed captioning of video programming. Part VI(A)
pertains to "Responsibilities for Meeting the Closed Captioning Obligations".
The FCC adopted this FNPRM on February 20, 2014, and released it on February 24, 2014.
It is FCC 14-12 in CG Docket No. 05-231. See,
notice in the
Federal Register, Vol. 79, No. 59, March 27, 2014, at Pages 17093-17106.
|Net Neutrality NPRM and Pay for Priority
5/15. The Federal Communications Commission's (FCC) just released
of Proposed Rulemaking (NPRM) asks for public comments on
many aspects of pay for priority agreements between broadband internet access service
(BIAS) providers and edge providers. However, the actual proposed rules do not expressly
permit, prohibit, or regulate any pay for priority agreements. Yet, this is one
of the key issues in current debates over network neutrality.
The proposed rules would require BIAS providers to publicly disclose some information
about pay for priority agreements. But, this is the actual rules' only reference to
The NPRM states in opening that BIAS "providers may have incentives to increase
revenues by charging edge providers for access or prioritized access to the broadband
provider’s end users. In particular, excessive fees could reduce edge provider entry,
suppress innovation, and depress consumer demand." (See, paragraph 6. Footnotes
The NPRM then states (at paragraph 11) that the proposed rules contain a ban on
commercially unreasonable practices, and hence, the FCC asks "how harm can best be
identified and prohibited and whether certain practices, like paid prioritization, should
be barred altogether."
The NPRM proceeds to ask numerous questions.
However, if the FCC were to adopt the proposed rules as set forth in this
NPRM, then its rules would not expressly permit or prohibit any kind of pay for
priority. If the FCC were to then find any BIAS provider in violation of its
rules for entering into a pay for priority agreement, it would have to be under
the following language in the proposed rules: "A person engaged in the provision
of fixed broadband Internet access service, insofar as such person is so
engaged, shall not engage in commercially unreasonable practices. Reasonable
network management shall not constitute a commercially unreasonable practice."
This would provide only hopelessly vague guidance.
Or possibly, the FCC might assert that pay for priority violates the proposed rules'
ban on blocking. But, the proposed rules define block as "The failure of a broadband
Internet access service to provide an edge provider with a minimum level of access that
is sufficiently robust, fast, and dynamic for effective use by end users and edge
providers." The rule provides guidance in the dichotomous choice of either to block
or not to block. But the words "minimum", "sufficiently",
"effective use" lack specificity and meaning.
Nevertheless, Commissioner Pai wrote in his statement that the proposed rule
"allows for paid prioritization under unspecified circumstances".
In contrast, Chairman Wheeler wrote that "When a consumer buys specified capacity
from a network provider he or she is buying open capacity, not capacity the network can
prioritize for its own profit purposes. Prioritization that deprives the consumer of what
the consumer has paid for would be commercially unreasonable and therefore
But then, statements outside of the rules do not constitute rules. Moreover, the FCC
freely ignores prior statements in subsequent enforcement proceedings. For example, the FCC
adopted a policy
statement regarding net neutrality on August 5, 2005. The FCC asserted this policy
statement as authority for the adjudicatory action that it took against Comcast in 2008.
The Court of Appeals overturned that order in its April 6, 2010
opinion [36 pages
in PDF]. And, the FCC responded by adopting its December 2010 rules. However, back
at the Commissioner meeting of August 5, 2005, Tom Navin, the then Chief of the
FCC's Wireline Competition Bureau stated that the policy statement is
"principles", and that "they are not enforceable". See,
"FCC Adopts a Policy Statement Regarding Network Neutrality" in
TLJ Daily E-Mail
Alert No. 1,190, August 8, 2005 (in the 11th paragraph).
Commissioner Ajit Pai also wrote in his statement that "I see no legal path for the
FCC to prohibit paid prioritization or the development of a two-sided market -- which appears
to be the sine qua non objection by many to the Chairman's proposal."
Pai (at right) continued that "As the NPRM frankly
acknowledges, section 706 of the Telecommunications Act ``could not be used´´ for such a
ban. And while the NPRM resists saying it outright, neither could Title II. After all,
Title II only authorizes the FCC to prohibit ``unjust or unreasonable discrimination´´
and both the Commission and the courts have consistently interpreted that provision to allow
carriers to charge different prices for different services. Indeed, I have been unable to
find even a single case in which the Commission found it unlawfully discriminatory to offer
a different (faster) service to customers at a different (higher) price." (Footnotes
omitted. Parentheses in original.)
Commissioner Michael O'Reilly wrote in his
statement that "even ardent supporters of net neutrality recognize that some amount
of traffic differentiation or ``prioritization´´ must be allowed or even encouraged.
Voice must be prioritized over email; video over plain data. Prioritization is
not a bad word. It is a necessary component of reasonable network management.
The Notice is particularly skeptical of paid prioritization and contemplates
banning some or all such arrangements outright."
"Yet companies that do business
over the Internet, including some of the strongest supporters of net neutrality,
routinely pay for a variety of services to ensure the best possible experience
for their consumers. They've been doing it for years. And certain arrangements
have even been viewed as ``good for the Internet.´´ In short, fears that paid
prioritization will automatically degrade service for other users, relegating
them to a so-called ``slow lane,´´ have been disproven by years of experience",
While the proposed rule regarding commercially unreasonable practices is
short, and lacking in any meaningful guidance, it is hypothetically possible
that the FCC could adopt a final rule that contains clear and specific language
regarding what are the commercially unreasonable practices.
However, the NPRM leaves little room for optimism. There is a long
discussion. The NPRM poses many questions. The FCC proposes many possible
methods of analysis. (See, Paragraphs 116-141, at pages 42-50.)
In 2010 the FCC did not expand its no discrimination rule between issuance of
the NPRM and adoption of the final rule. Moreover, this NPRM lacks any specific
proposal to ban certain types of, for example, pay for priority agreements.
This NPRM does suggest many methods of competition analysis, for which there
exist bodies of legal precedent and tested methods of economic analysis.
However, the NPRM also lists many other factors, that would ensure uncertainty
of regulatory outcomes. For example, the NPRM suggests imposing a "good faith
negotiation" requirement, oxymoronically, even where "parties do not seek to
enter into contractual relationships with each other".
In short, the proposed rule lacks clarity, the FCC is unlikely to expand the rule,
and even if it did, it would likely only add language that would add to uncertainty.
The NPRM states that "we tentatively conclude that we will adopt a case-by-case
approach, considering the totality of the circumstances, when analyzing whether conduct
satisfies the proposed commercially reasonable legal standard". In other words, the
term "commercially reasonable practices" will mean in any given proceeding
whatever three out of five Commissioners want it to mean.
|About Tech Law
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Copyright 1998-2014 David Carney. All rights reserved.