A few weeks ago, Netflix shipped out its last DVDs, retiring the company’s iconic red envelopes and marking the end of one era — and the full embrace of another. It’s the latest in an ocean of data points showing how streaming has taken audiences by storm, surpassing cable as the most popular way to find and watch video in America. 

I’ve had a front-row seat to streaming’s rise — during almost a decade’s worth of service as one of President Barack Obama’s appointees to the Federal Communications Commission (FCC) and, before that, 11 years on the Public Service Commission back home in my beloved South Carolina. And now I’m excited to put that experience to work in my new role advising the Streaming Innovation Alliance, which advocates for policies that support diversity, value, affordability, and choice in video streaming.

The Alliance’s core mission is to help people understand why audiences have overwhelmingly embraced these services. 

Some of the answers are found in our new poll, reporting that 73% of registered voters view streaming favorably, with even higher numbers for Black, Hispanic, millennial and Gen Z audiences. When asked why, voters cite the diversity and variety of program options, the convenience of “anytime/anywhere” viewing and the great value streaming offers with huge program libraries.

Digging deeper, one thing that stands out is how meaningful it is for historically marginalized and underserved communities to have dedicated services focused on their interests and needs. Alliance members like AfroLand TV, For Us By Us Network, Vault Access and Vix are reaching audiences in ways that were unavailable before streaming. And their success is bringing high-skill, high-wage creative and production jobs to new communities and redefining the very idea of “Hollywood” in the process.

So, when policymakers consider new regulatory proposals, one big question they need to ask is how those ideas would impact the small, diverse and independent groundbreakers we need to keep this progress going. 

Independent services featuring less general audience programming and relying on a wider array of business models don’t have much room to maneuver. Tax and fee assessments, restrictions on programming choice or other ill-fitting regulations can literally make business unsustainable overnight or at a minimum drive up subscriber costs on the very underserved communities that can often least afford it.

Audiences understand these risks intuitively. Our new poll shows two-thirds of voters worry specifically about the impact new rules and regulations could have on small and independent streamers. Overall, about three-quarters of those polled think streaming services should be regulated the same or less than they are today.

That’s why I urge my former colleagues at the FCC to think twice about the decade-old idea of classifying streaming services under the rules for cable and broadcast TV. These rules include “must carry” and “retransmission consent” requirements created in an era when most households had only a handful of broadcast channels, a single cable company and a video rental shop as their home viewing options. They simply don’t fit the diverse, innovative, thriving world of modern video streaming. 

To be fair, a decade ago, that wasn’t so clear. In the early days of streaming, we were right to turn over every rock looking for ways to push innovation forward. Consumers were craving more choice and new competition in the video market, and I supported asking whether treating certain streamers as cable and satellite providers would deliver those consumer benefits.

We received volumes of public comments from businesses, consumer groups, and regular citizens. We built a diverse record, analyzed all the input, and … chose to let streaming develop without those old regulations. Well, 10 years later, it turns out that streaming services didn’t need those old rules to bring new and meaningful stories, opportunities, and options to life for consumers. The streaming industry’s groundbreaking storytellers and engineers, not FCC regulations, are delivering those benefits to the market by investing bravely and embracing new technology.  

Streaming is taking American households and Hollywood to new places and pushing the landscape of our culture forward. Now it’s up to us to acknowledge and embrace this progress, and move on from outdated policy ideas just like we’ve moved on from those iconic red envelopes.

ACA Connects has lined up a bipartisan duo of former Federal Communications Commission chairs — Democrat Mignon Clyburn and Republican Ajit Pai — to keynote its 30th-anniversary dinner during the ACA Summit in Washington.

The dinner is scheduled for February 28 at the National Museum of American History.

Pai was chair from 2017 to 2021, during the administration of President Donald Trump, and is arguably most closely associated with the FCC’s decision to roll back network-neutrality rules. He is currently a partner at investment firm Searchlight Capital Partners in New York.

Clyburn was the first woman to lead the FCC when she was appointed acting chair by President Barack Obama in 2013 after the exit of chair Julius Genachowski. She advocated for affordable and equitable broadband deployment and stayed on as commissioner after Tom Wheeler took over the chairmanship. Clyburn is currently principal of her own firm, MLC Strategies.

Pai and Clyburn join current FCC commisioners Brendan Carr and Nathan Simington among the ACA Summit speakers. ▪️

Because we live in an increasingly divisive world, it is more important than ever before to disagree agreeably. That is the only way to achieve the best solutions. Unfortunately, when it comes to President Biden’s nomination of Gigi Sohn to the Federal Communications Commission, disagreements over policy have turned personal and political, far removed from disagreements over public policy.

Claims that Gigi Sohn would “actively deter minority media ownership” are fundamentally false. I have worked with Gigi for many years and she has been a champion for diversity in media ownership and tech before, during and after that time, including as a top adviser to chairman Tom Wheeler. She also worked long and hard with me and within the Federal Communications Commission to address the outrageous and excessive prison phone rates that regularly harm so many communities of color. 

I am not alone in my support for Gigi. The Leadership Conference on Civil and Human Rights led a coalition of some 25 civil rights and civil liberties organizations in a joint letter saying that “throughout her career, Ms. Sohn has dedicated herself to the public interest.” The groups pointed to her long-time “advocacy for policies that promote diversity and competition.” 

“She will establish a collaborative process and dialogue with the civil rights community, as well as consult with the community members who are often left out of commission deliberations,” they said, and they also recognize that she would make history as the FCC’s first openly LGBTQ commissioner. 

Gigi’s support of strong policies prohibiting discrimination by internet services providers should be praised, and not belittled. Her opposition to media and telecommunications consolidation and any evasion of media ownership rules that provide fewer, not more, opportunities for minority ownership should be commended, and not ridiculed. It defies reason that Gigi’s support of competition and greater entry into the media and telecommunications industry by those traditionally shut out would be labeled as “anti-business.” Throughout her entire career, Gigi has helped underrepresented voices in industry gain access to communications platforms, be they broadcasting, cable or the internet. This isn’t “anti-business,” it’s pro-competition, pro-inclusion, and pro-opportunity. 

Also: Gigi Sohn’s Confirmation to the FCC Will Undermine Minority Media Growth and Achievement

Often overlooked is Gigi’s leadership in hiring and promoting people of color into the field of communications policy. When she left Public Knowledge in 2013, nearly one-third of the staff were people of color. She brought two of those people to the Federal Communications Commission and another staffer of color is now the successful CEO of Public Knowledge. I expect that if confirmed, her staff at the FCC will be similarly diverse.

Have Gigi and I agreed on every issue? The answer is a thunderous no. But like you, I pick my friends and stay loyal to my family not because we see eye to eye on every single issue, but because we believe in many of the same things.

The Multicultural Media and Telecom and Internet Council said it best: “Gigi is a leading public advocate for open, affordable and democratic communications networks” and the Senate should confirm her without delay.

And on that, we should all agree.

Former FCC acting chair Mignon Clyburn has been enlisted by INCOMPAS to promote the Biden Administration's vision of a broadband infrastructure buildout that could spend billions of dollars overbuilding existing service that does not meet speed and price goals.

INCOMPAS, which represents competitive carriers, has launched its BroadLand effort, which focuses on putting money into new, fiber, networks, rather than "wasting money on old and slow."

The Biden infrastructure plan proposal included $100 billion for broadband deployment tied to speed and competition and putting a thumb on the scale for municipal broadband and co-ops. And while a compromise infrastructure bill is likely to emerge from that initial proposal, it is also likely still to include billions for broadband.

Cable broadband operators have pushed back hard on suggestions that their networks, and the billions they have spent upgrading them, can't handle the future, pointing to their resiliency during the pandemic-driven reliance on remote everything.

But the BroadLand campaign, which could be christened "build backbone better," is focused squarely on fiber, and on including the price speed and competitive landscape of broadband when deciding whether government broadband infrastructure buildout money should be spent.

Cable broadband operators say the money should be focused where there is no service, not overbuilding, including muni broadband, where broadband is available, just not at the government's price point or speed.

“In a nation that stands for liberty and justice for all, we must have internet for all,” said Clyburn. “I am excited to join the BroadLand effort and continue my fight for greater broadband access and competition that has proven to lift all boats. Better broadband means faster speeds, lower prices and more ideas and innovation from more people and places.”

As Black History Month winds down, acting FCC chairwoman Jessica Rosenworcel raised up three former chairs or acting chairs with Twitter shout-outs with an #FCCfirsts hashtag.

"The first African American @FCC Chairman was @WEKennard [William Kennard]," she tweeted. "He served from November 1997 to January 2001. During his tenure, he shaped policies that created an explosion of new wireless phones, brought the Internet to a majority of American households, & more. #BlackHistoryMonth."

Also Read: Rosenworcel Takes FCC Gavel

Next came a still-familiar familiar face in cable and broadband circles, Michael Powell, head of NCTA-the Internet & Television Association.

"The second Black @FCC Chairman was @chairmanpowell [Michael Powell], who served from January 22, 2001 until March 17, 2005. During his tenure he focused on consumer issues such as the right to keep your cellphone number when switching carriers and the Do-Not-Call list. #BlackHistoryMonth."

And finally.

"On August 3, 2009, @MignonClyburn became the first Black woman @FCC Commissioner until June 6, 2018," Rosenworcel tweeted. "She was the first Acting FCC Chairwoman from May 20, 2013 to November 4, 2013. She championed diversity in media ownership & Inmate Calling reform. #BlackHistoryMonth #FCCFirsts."

Also Read: Black Voices Rising

Rosenworcel would be a trailblazer herself as the first woman chair if she gets the "acting" removed from her title by President Joe Biden, as many Hill Democratic women have called on the President to do.

President-elect Joe Biden has tapped his FCC transition team and it includes several FCC vets including one of the leading candidates for the chairmanship, former commissioner and acting chair Mignon Clyburn. Clyburn's father, Rep. James Clyburn (D-S.C.) helped jump-start Biden's then-flagging campaign with his endorsement.

Clyburn was acting chairman between Democratic chairs Julius Genachowski and Tom Wheeler.

Mignon Clyburn opened her own consulting firm after leaving the commission in 2018.

Leading the Biden FCC transition team is John Williams, senior counsel at House Judiciary.

Related: Clyburn Praises Public/Private Partnerships

Also helping with the FCC transition are Paul de Sa, former chief for strategic planning and policy analysis under Democratic FCC chairman Tom Wheeler, who later formed Quadra Partners, a broadband-focused public policy firm, with two other FCC alum when he exited in 2017, and Edward "Smitty" Smith, deputy managing partner at DLA Piper LLP in Washington and former legal advisor to Wheeler.

A Biden Federal Communications Commission could well be led by current commissioner Jessica Rosenworcel. As the senior Democrat, she would almost certainly be named acting chair in the early days of a Biden administration, as was her former boss, Michael Copps, when Barack Obama won in 2008.

If so, it will have been the most peripatetic route to the post. She was commissioner, had to leave when her renomination was held up in an unrelated political fight, then returned when the smoke cleared — the first commissioner to exit and re-enter the panel.

Rosenworcel voted against deregulating internet providers and has called for the return of rules against blocking, throttling and paid prioritization, as had fellow Democratic commissioner Geoffrey Starks. She and Starks also voted against eliminating broadcast regulations.

See Also: 'Blue Ripple' Would Make Regulatory Waves | Hooray for Hollywood | Networks All In as Election Day Turned Into Election Days | Biden Win Would Have Minor Impact on Cable Profits

It is unclear whether the Republicans would stick with Trump’s pick of Nathan Simington of NTIA to replace Republican commissioner Michael O’Rielly. According to former top FCC officials, a more likely scenario would be that the Nov. 10 confirmation hearing for Simington proceeds, but the pick is not scheduled for a vote. Instead the seat would go to Crystal Tully, deputy staff director at the Senate Commerce Committee, who is said to be the choice of Commerce chairman, Sen. Roger Wicker (R-Ohio).

Simington was the president’s choice to replace O’Rielly after Trump pulled the latter’s nomination, reportedly stung by O’Rielly’s criticism of the president’s effort to regulate social media. Simington was not the choice of Sen. Mitch McConnell (R-Ky.), the Senate majority leader, who by all accounts preferred O’Rielly. 

Since the days of President Bill Clinton, who set the precedent, FCC picks generally are done in consultation with Congressional leadership, which is why they are often former Hill staffers — O’Rielly and Rosenworcel among them.

Former commissioner Mignon Clyburn is also a front-runner for the big chair, given her experience and the fact that the endorsement of Biden by her father, House Minority Whip James Clyburn (D-S.C.), during the primaries essentially saved his campaign when it was on life support. 

If so, she would be the one setting precedent as the first Black woman to hold that post, as well as a commissioner who left only to return as chair. She has already occupied the post, serving as acting chair following Julius Genachowski’s exit in 2013.

“The seat is hers for the asking, assuming she  wants it,” said Adonis Hoffman, a communications lawyer and former staffer at the FCC and in Congress. Clyburn has been vetted, confirmed twice and, by virtue of her legacy and loyalty, would be a solid and steady hand at the commission. She has no baggage and plenty of friends on the Hill, in the administration and in the advocacy community. Plus, while socially progressive, she has a good track record with industry.

But Hoffman also likes Rosenworcel’s chances, saying she has the support of Senate Democrats, with whom she earned a reputation as a reliable defender of the public interest.  

Andrew Schwartzman, senior counselor at the Benton Institute for Broadband & Society, called Rosenworcel a logical front-runner. “Her strongest asset may be years of work as a Senate staffer, during which time she almost certainly had personal contact with then-Senator Biden and absolutely certainly became well-known to Biden staffers who remain close to him and will be involved in the transition and selection process,” he said. Plus, she has the added advantage of not needing Senate confirmation.

Schwartzman warned that while speculation typically centers on D.C. insiders, “Presidents sometimes pick others who are connected to the White House through other pipelines, e.g., longstanding friend, important supporter, [or from] industry.” 

Travis LeBlanc, like McDowell also with the Cooley firm in Washington, is another name to note, perhaps for the third FCC seat if Rosenworcel is named chair. He is a former FCC Enforcement Bureau chief and, more importantly in this context, former senior adviser to presumed incoming Vice President Kamala Harris back when she was California attorney general. Then there is FCC commissioner Geoffrey Starks, who is connected to Harris through LeBlanc, who hired Starks at the Enforcement Bureau.

Don’t count Starks out for the FCC chairmanship or some other post, said one former FCC official said.

Former FCC commissioner and acting chair Mignon Clyburn made a case for the "public/private" partnership of regulator/industry as the blueprint for advancing a more diverse and inclusive media landscape.

Clyburn was delivering her virtual acceptance speech at the Media Institute's First Amendment awards ceremony.

She said it was appropriate that she was paired with the night's other honoree, Comcast's David Cohen (who won the American Horizon Award for Comcast's Internet Essentials broadband efforts). 

Related: Clyburn to Head INCOMPAS Connectivity Effort

She said it was fitting that a former FCC commissioner and a former media mogul were sharing the virtual stage--Cohen has stepped back from his day-to-day duties as Comcast's D.C. policy point man--because that pairing reaffirmed that both regulators and industry were needed to connect communities and giving individuals the tools they need to exercise their rights to free expression. 

She called the teaming of regulators, who must be mindful of the public interest, and the power of industry an "incredible public/private partnership" that has provided, among other things, the Universal Service Fund broadband subsidies that help lower-income Americans and hard-to-reach areas get broadband service.

She said that partnership "makes us the envy of the world," but also is a spur to do better. She said it is not always clear what that "better" will be, but the "collaborative, open, free market framework" allows both to work for a "better and more inclusive tomorrow."

Clyburn said that "tomorrow" includes a competitive communications landscape that allows all to participate and thrive. 

Clyburn is currently the principal of MLC Strategies and is on the board of production company Lionsgate.

As former Vice President Joe Biden continues to rise in the polls, D.C. handicappers are seriously pondering who might be tapped for Federal Communications Commission chair in a Biden administration.

Candidate Biden has already signaled his FCC will be restoring network neutrality rules against blocking, throttling and paid prioritization, but since it is an independent agency, he will need to pick an FCC chief who “independently” shares that philosophy.

Biden has already signaled his vice president will be a woman. Odds are good his FCC chair could be as well.

The FCC chair calculus will be different depending on how many Republicans decide to leave with the change in administration.

If more than just current FCC chairman Ajit Pai exits on the Republican side — he isn’t required to leave and could stay on as a commissioner, but that would be a “snow in July” occurrence — it would give Biden more latitude in picking the chair, said one executive. “If there is only one slot, one can assume that it is very unlikely that Biden would appoint a white male,” the executive said.

The following is based on informed speculation aided by various Washington communications sources who asked not to be identified.

Handicapping the Field

Mignon Clyburn, the former commissioner and first female chair of the FCC, was acting chair between the exit of Julius Genachowski and the confirmation of Tom Wheeler for the post, which took a while after Wheeler’s nomination was held up in the Senate.

According to a couple of sources, Clyburn’s name will be in the hopper this time around. Closing the rural and racial digital divide was one of her commission (and post-commission) priorities, an issue that has been top of mind given the pandemic and with the current heated conversation on racial bias.

RELATED: Biden FCC Would Restore Net Neutrality Rules

Then there is the fact that her father, Rep. James Clyburn (D-S.C.), essentially resurrected Biden’s campaign with his endorsement preceding the South Carolina primary, the former VP’s first big win, at a time when the media was all but anointing Sen. Bernie Sanders (I-Vt.) as the presumptive candidate.

Blair Levin, policy adviser at New Street Research and the former architect of the FCC’s National Broadband Plan, likes Clyburn’s chances. He said the job is hers if she wants it, which a top communications lobbyist says as well.

Some are arguing current Democratic Commissioner Jessica Rosenworcel has an inside track to the big chair. She had to exit the commission after her renomination got caught up in political infighting, but made it back onto the commission for a second bite of the apple and possibly a shot at the chairmanship.

Levin also says Rosenworcel is a leading contender.

David Cohen, Comcast senior executive VP and adviser to the cable company’s chairman and CEO, Brian Roberts, is another name that has been making the rounds of late, but one observer said he doubted Cohen would want the job. “It’s not big enough for him,” he said, adding that Cohen would warrant a cabinet post. “There are few people as talented and qualified for government service,” he added.

Before joining Comcast, Cohen was the longtime chief of staff to Philadelphia Mayor Ed Rendell. Probably working against Cohen is Comcast’s position against net neutrality rules, given that Biden has said they would be coming back.

The other FCC Democrat, Geoffrey Starks, has to be in the conversation, said one veteran agency watcher, but added “there are an unusually large number of extremely qualified candidates this time around.”

Other Contenders

John Orlando is the former top CBS/Viacom lobbyist who left the company at the end of 2019. He worked on Capitol Hill for over a decade, including seven years as chief of staff to the iconic Rep. John Dingell (D.-Mich). Orlando, said one executive, is a “Democratic heavyweight with industry experience, gravitas and deep connections to House and Senate leadership,” recalling what he called the “adult” pick of Tom Wheeler by President Barack Obama.

Gigi Sohn is the former top aide to Wheeler. She has been a strong supporter of net neutrality rules, but was also willing to work with other stakeholders to find a way forward on the issue as head of Public Knowledge.

Clint Odom is the National Urban League’s senior VP for policy and advocacy and head of the Washington bureau and formerly a senior adviser at the FCC. His extensive experience as a top congressional Democratic aide includes legislative director for Sen. Kamala Harris (D-Calif.), who is a candidate to be Biden’s vice president or perhaps attorney general.

John Branscome is the senior counsel on the Senate Commerce Committee. He has a lengthy resume that includes past FCC service in numerous capacities including legal advisor to two commissioners, and was counsel for communications and intellectual property for Sen. Amy Klobuchar (D-Minn.), another legislator who helped Biden at a crucial time, in her case dropping out of the presidential race before her own home state primary and endorsing Biden.

Disney regulatory attorney Susan Fox, former senior legal advisor to former FCC chairman William Kennard, the agency’s first African-American chairman.

Larry Irving, former head of the National Telecommunications & Information Administration under President Bill Clinton, coiner of the term “digital divide” and a member of the Internet Hall of Fame is another candidate that can’t be counted out if the Democrats take the White House.

Levin’s other potential picks include another Larry, Lawrence Strickling, who was also head of the National Telecommunications and Information Administration (NTIA) — under Obama — and currently on the Biden policy team; and Karen Kornbluh, who was on the shortlist if Hillary Clinton had won and just got pushed out as a board member of Voice of America. Louisa Terrell, a former aide to then-Sen. Biden and former FCC chairman Wheeler and past head of the Biden Foundation, is the “dark horse” candidate.

Levin has been talked about as a candidate, but he said his money is on any of the other candidates before himself. λ

WASHINGTON — Democrat Mignon Clyburn is exiting the Federal Communications Commission after almost 10 years, the vast majority of those in the agency’s majority, but she says she will continue to speak out for those on the other side of the digital and economic divide and about the importance of connectivity for everyone, regardless of race or economic status.

She was briefly chairman in 2013, after Julius Genachowski left and Tom Wheeler was unable to be confirmed due to a hold on his nomination. That made her the first woman to run the agency.

Her FCC service followed almost a dozen years on the South Carolina Public Service Commission (she chaired that agency, too). Public service is both in her DNA — her father, Rep. James Clyburn, is the assistant House Democratic leader — and in her title. Sen. Ed Markey (D-Mass.) has called her “a consumer champion without equal” as she advocated for closing the digital divide, promoted independent media voices and worked for strong network neutrality regulations and more reasonable phone rates for the incarcerated. 

She has been a strong critic of deregulation and consolidation favored by many in the cable and broadcast industries. But the American Cable Association has also said that Clyburn had “no equal in understanding the value that independent providers deliver to their communities,” while NCTA–The Internet & Television Association president Michael Powell called her a “strong advocate of the power of technology to close the digital divide.”

A busy Clyburn — she twice had to reschedule this interview as she combined packing up with speeches and appearances — talked to Multichannel News about that legacy.

MCN: You didn’t have to leave until the end of the year, or until your successor has been confirmed, so why are you leaving now?

Mignon Clyburn: I feel I can be more effective in speaking about the things I care about from the outside.

MCN: And those are?

MC: Inmate calling and lifeline and the Connect2Health Task Force, and trying to bring more certainty and clarity to connecting different parts of this country. You are right, I could have stayed, but it was time for me to move on, and I’m ready.

MCN: You were the first woman to lead the agency. What does that mean to you?

MC: It was an incredible honor and opportunity. It was a reflection of decades, or hundreds of years, of hard work by more than 50% of the population. I look at it not as a singular, first-person honor, but as a collective representation of women, and women of color, in this country. I am proud to go up on that wall and represent them. [Photos of past FCC chairs hang on the wall outside the agency’s meeting room.]

MCN: Let’s talk about some of the things you were passionate about. You see network neutrality as a diversity issue. What do you think the consequences of the rollback will be, assuming the congressional review to nullify it fails?

MC: I see this as a diversity and inclusion and opportunity issue. No. 1, I don’t think enough attention has been paid to the potential negative impact on rural communities in this nation.

If they abandon Title II authority, then tell me what the future holds for hundreds of broadband providers that we support through the Universal Service Fund high-cost program? If someone were to challenge that because the FCC has abandoned Title II as the strongest legally sustainable authority to provision broadband services, then that infrastructure is at risk.

I visited Etsy not long ago. Their biggest fear is someone with a competing service having the ability to disadvantage Etsy’s consumers or their services, or block or throttle or charge more by way of paid prioritization or tolls. Entrepreneurs don’t have to have storefronts to get their products out to market.

Then there is rural health care and education. All of that could be potentially threatened if you don’t have an open and engaged process where consumers are protected, where privacy is protected, where they don’t have to worry about gatekeepers.

The majority has created a lot of uncertainty, a lot of friction, a lot of potential for depressing of investment and opportunity in the space by turning back what was a painstakingly involved process that sought to seek a balance enabling and protecting consumer interests and concerns. That was a difficult-to-achieve balancing act.

Broadband access is attached to just about everything we do at the FCC, all of which was put at risk with the repeal of net neutrality.

MCN: You said recently that the FCC was too fixated on infrastructure. But you have to have infrastructure to have broadband.

MC: You also have to have consumers in order to take advantage of it. I said “fixated and monofocal.”

We need a multifocal approach, looking at our entire universal service construct, looking at not just the infrastructure side and the affordability side. This agency is supposed to be about enabling ubiquitous, affordable opportunities for all of our citizens. Now, all is not created equal for our communities. In rural communities, it will take more investment. In urban communities, where the infrastructure is there, if you have people who can’t afford a connection their lives are not enhanced.

You can bring fiber to my doorstep, but if I don’t have the $50 or $60 or $70 dollars a month to be connected, then it does me no good. That is a platinum technology to nowhere.

You can’t be fixated on infrastructure and have all the incentives go there while you kill the lifeline program, the very program that allows these people to be connected. We are supposed to be providing those opportunities regardless of your race, or your background, or where you live. This agency can often be an enabler of opportunity, but monofocal policies ensure that the opportunities will be for those who already have the economic wherewithal, and the rest of us will be left behind. That is building tech canyons, not bridges.

MCN: Why did you oppose broadcast deregulation?

MC: Broadcasters have said to me over and over again that they embrace their role as first informers. Those who have an over-the-air presence are licensed by us. They have an obligation to serve their communities in addition to an obligation to their shareholders and others. So, I believe that the public-interest standard, which should be our North Star, is something we should reflect on and review every time an application for renewal comes before us, every time we review a transaction, every time there is a change or proposal that would modify regulations.

I can’t discount what their prime directive is, which is serving in the public interest.

It is important that we don’t rubber-stamp transactions without looking at what impact they have.

MCN: Is that why you advocated for those newsroom diversity studies, which were ultimately canceled over criticisms that they could translate to government influence over that coverage?

MC: Yes, that was why I was so passionate about those studies, which were so demonized.

We would have been able to see why there are only 12 African-American- owned full-power TV stations in this nation, why only 7.4% of full-power stations are owned by women, why less than 5% of Latinos own full-power TVs. Why is that? To just look at those numbers and recite them and do nothing else and not question whether or not what we have done from a regulatory standpoint contributed to that [is wrong].

I am not scared of information. Used correctly, it could inform and advise and ensure we have better policies. I can’t underscore enough broadcasters’ special obligation to promote diversity of voices and serve the local communities. Anything that jeopardizes that, I think we need to question.

MCN: The Rev. Jesse Jackson has told me more than once that media ownership is a civil-rights issue. You clearly agree.

MC: It shouldn’t surprise you that moving from almost 20 years of public service to the private sector causes one to reflect a lot. One of the things we have been talking about is the Kerner Commission Report. [That 1968 presidential report on racism and rioting concluded: “Our nation is moving toward two societies, one black, one white — separate and unequal.”]

The report said some pretty startling things when it came to the media and the lack of diversity in the newsroom, when it came to reporters and assignment editors and their seeming lack of clarity and inclusion when it came to covering certain communities.

Close your eyes, erase the date from the report, and a lot of those things still exist.

In South Carolina [where Clyburn is from and where she was general manager and publisher of local African-American-targeted newspaper the Coastal Times], there was an express blackout. The media associations in South Carolina got together and said: “We will not cover things going on in African-American communities. We will not cover any parts of the civil rights movement, because if we do not cover it, that is the same as if it didn’t happen.”

That underscores why it is so important for a regulatory agency that has oversight and influence to look at diversity and inclusion when it comes to ownership and newsroom configuration and when it comes to coverage. That is why it is so important that we discuss these issues and why there should be an agency that studies what they do, and what they should do.

MCN: You have said you want to be on the right side of history. Where do you think the FCC’s current deregulatory initiatives will fall?

MC: I will just say that I am very comfortable with the positions I have taken. I came here saying I wanted to be a voice for the voiceless, saying I wanted to be an opportunity enabler and one who sought to close divides, not widen them. I will let history be the judge of how I have conducted myself and how I view the world.

Online Exclusive

MCN:Do you see the news media as still predominately reflecting a white, male perspective?

MC: I will allow the viewers to judge that. But I can say that if you were to look at employment reports, you would see that the numbers have gotten worse. What does that mean in terms of what is covered and what voices are heard? If we just ignore the numbers and rubber-stamp renewals and transactions, we have done everyone a disservice.

MCN: The American Cable Association said you have no equal in understanding the value independent cable providers deliver. Talk about the value of independent voices.

MC: My goodness, I guess everything I have said, from talking about the Kerner report to looking at independent programmers: It is why I pushed for the notice of inquiry on independent programming and looking at the most critical stumbling blocks when it came to being able to get their programming carried.

All of this is important in terms of ensuring the great, rich diversity of our nation is better enabled. And if there are stumbling blocks we have an obligation to look at that. Like those unfair most favored nation clauses. We concluded in the [notice for proposed rulemaking] that such contracts were high barriers to opportunity.

That has been sitting for quite some time. It is a problem in the marketplace that could be solved, but you have to have a willingness to do so.

MCN: What else can create opportunity?

MC: One thing that has not had the result I thought it would have are digital subchannels, with stations having up to eight channels. More partnerships could increase diversity and inclusion. The spectrum auction as well as the digital transition allowed for unique opportunities that, quite frankly, I don’t see enough of.

But there needs to be a proper check and balance and that means we need data. We can’t institute goals and rules and policies in a vacuum. We can’t do anything without information, and if we don’t do anything, then things get worse, not better.

MCN: What should I have asked you about, but didn’t?

MC: I have been at odds with the majority on many issues and directions that I think do not strike the proper balance. But one thing we have agreed on is the goals of the Connect2Health Task Force [focused on leveraging advance tech for health care].

The task force is at the very beginning of what it can do and what it can create by way of partnerships and opportunities in this space. One of the more recent collaboratives was the partnership with the National Cancer Institute, University of Kentucky Markey Cancer Center, Amgen and the University of California–San Diego Design Lab.

What they are doing is going into the state of Kentucky, which has a high cancer morbidity rate. They want to leverage technology, information and connectivity to see if there are models that could be crafted to address the issue in those economically challenged areas.

So, if you were to ask me what I would most like to be remembered by …

MCN: Consider yourself asked.

MC: I did attempt to leverage what the world calls ICT — information communication technology — to try and see where things have not traditionally, historically, worked in persistent poverty areas and those areas that have not been uplifted like the bigger cities and richer communities. How we can leverage technology to address those chronic needs? The great byproduct that has come out of that Connect2Health task force is an incredible broadband mapping tool. I can’t tell you the number of people who have said to me how much they use this to inform them as to where broadband is or is not, where the doctors are or are not, so the state and county appropriators can make critical decisions when it comes to serving and informing and connecting their communities.

Connectivity can be a game-changer for health, entrepreneurship and all of the other things that enrich and inform and provide for us. So when you hear me getting passionate or protective when it comes to privacy or people’s ability not to have a gatekeeper when it comes to access to the internet, all those are motivated by knowing that connectivity is the key in the 21st Century.

If there are things standing in the way of the people who are most without, the divides will continue to widen and we will never have the opportunity to catch up.

We are at a critical moment in our nation’s telecommunications, technology and opportunities history. And while everybody is fixated on 5G, there are people without 3G and 4G. So, if we don’t look at what we can do to enable and improve those communities through good policy — through leveraging and partnering, not fighting the state and local communities talking about “pre-emption, pre-emption, pre-emption” instead of “inclusion, inclusion, inclusion” — then we have lost another opportunity to be a critical partner in connecting the nation, and that would be a shame.

MCN: Why do I feel I have not heard the last from you on that?

MC: Because you haven’t.

The FCC has provided an extra $500 million in Universal Service Fund subsidies for rural broadband deployment.

That came in an order an notice of proposed rulemaking released Friday (March 23).

Closing the rural digital divide is an avowed priority for both the FCC under chair Ajit Pai and President Trump.

Pai said the item also "tees up an examination of how to ensure that we provide sufficient and predictable support over the long term so that communities served by small carriers aren’t stuck on the wrong side of the digital divide."

"Building on earlier efforts to modernize high-cost universal service support, we seek to offer greater certainty and predictability to rate-of-return carriers and create incentives to bring broadband to the areas that need it most," said Pai.

Commissioner Jessica Rosenworcel supported the item, but dissented in part because she said it "fails to ask any questions about how to protect rural consumers who lack other service options if they find they are on the losing end of discriminatory network practices in the wake of the FCC’s net neutrality repeal.  This is wrong.  It deserves discussion and our failure to do so is an unfortunate abdication of our most basic consumer protection duties."

Commissioner Mignon Clyburn dissented, saying she made a bunch of suggestions that the chairman dismissed. She also took issue with the chairman's characterization of those suggestions as last-minute.

"We had an incredible opportunity to not only “walk the walk, but talk the talk.” Unfortunately, this item stumbles on many levels," she said. "[T]o suggest that my requests were last-minute, as the Chairman does in his statement, disingenuously characterizes the fact that I had communicated my requests to his office weeks before the voting deadline. Rather than exercise his power to extend the voting deadline, he made it clear that he simply did not want to deal, and for that I am disappointed," she said.

White House Defends Lack of Direct Rural Broadband Investment

Pai had said that his colleagues "had 58 days to review the item but waited until after the close of business on the 57th day—the day before the 'must vote' deadline, which itself had already been extended—to propose substantive edits."

The item was voted on circulation, which means the chairman circulates it for a vote outside the public meeting and the other commissioners are on the clock to vote it.

The item comprises three parts.

 1. There is a Report and Order providing that additional money for rural broadband in exchange for increased broadband deployment obligations and codifying rules that protect the high-cost universal service support fund from waste, fraud, and abuse and "explicitly prohibiting the use of federal high-cost support for expenses that are not used for the provision, maintenance, and upgrading of facilities and services for which the high-cost support is intended."

 2. There is a Third Order on Reconsideration resolving issues raised in petitions to reconsider the FCC's rate-of-return reforms

 3.There is a Notice of Proposed Rulemaking teeing up further reforms, including a budget "that will allow for robust broadband deployment in rate-of-return areas while minimizing the burden that contributions to the Universal Service Fund (the Fund) place on ratepayers and to bring greater certainty and stability to rate-of-return high-cost funding, both in the near term and in the future."

 “We are still reviewing the details of the order and related items released by the FCC today, but as a threshold matter, we welcome several aspects of today’s action," said Shirley Bloomfield, CEO of NTCA-The Rural Broadband Association.

 “First, NTCA has actively engaged in the effort to secure greater, bright-line clarity in determining what is and is not recoverable through universal service. NTCA has seen this as important to promote effective and efficient use of limited resources for the benefit of both consumers and stakeholders in that system. While we’re still working through the specifics of the FCC’s revisions, we welcome generally efforts to provide clearer guidance on such issues going forward."

“More importantly, however, today’s action by the FCC to address immediate USF budget crises represents a much-needed ‘shot in the arm’ for rural broadband and charts a course toward realizing the goal of promoting and sustaining effective broadband deployment in rural America."

“This is another significant and meaningful step toward closing the rural broadband gap and moving us farther down the road to ensuring consumers living in rural America have the high-speed broadband they need to fully participate in our digital economy," said USTelecom CEO Jonathan Spalter. "By increasing funding and putting in place tighter controls on expenditures, the Commission is reinforcing its number one priority – closing the digital divide.”

LAS VEGAS -- Five federal policymakers offered their familiar visions of core regulatory issues, including spectrum policy and net neutrality, during CES sessions.

Read More: MCN's Complete Coverage of CES 2018

With FCC chair Ajit Pai absent because of death threats he has recently received, and Democratic commissioner Jessica Rosenworcel opting to skip the program, the sessions were largely status reports on activities at the FCC, NTIA and FTC. The on-stage discussions did not address the commission’s split decision in November on ATSC 3.0 rules.

David Redl, who heads the National Telecommunications and Information Administration, opened the session by reading very quickly through prepared remarks touching on spectrum policy, cybersecurity, international governance and the development of telecom infrastructure, including sharing of bandwidth assigned to federal agencies.

He promised that spectrum policy will be a major focus of NTIA this year, and the agency will work with industry to develop procedures to make better use of the airwaves.

“We must do everything we can this year and beyond to accelerate America’s 5G leadership,” he said. “With 5G set to drive demand for more access to spectrum, we’ve been looking at bands across NTIA’s notorious spectrum chart.” Citing the 37-GHz band, he said NTIA is “optimistic” that “if we can get this right, it will serve as a model on how to handle sharing in other bands.”

Redl also emphasized NTIA’s prioritization of cybersecurity.

After Redl’s speech, Julie Kearney, CTA’s VP-regulatory affairs, sat down for a chat with FCC commissioners Mignon Clyburn, Brendan Carr and Michael O’Rielly.

O’Rielly said he expects a “busy and exciting year” in which the Commission will eliminate rules “that no longer make any sense,” citing Pai’s intent to delete aging regulations.

Carr predicted, “We’ll unleash more innovation and greater investment.” He also said he expects that the policies will lead to broadband expansion.

Clyburn called the Dec. 14 net-neutrality decision and its aftermath a “teachable moment.”

Kearney sought to extract opinion from the commissioners about the need for or likelihood of an update of the Communications Act that steers their decision-making. Analysts acknowledge that Congressional action on such legislation is not currently on the drawing board.

Related: Net-Neutrality Bill Is Longest of Long Shots

O’Rielly said that a new law would mean the FCC wouldn’t have to “parse out meaning” from the 1934 communications legislation and subsequent laws.

Clyburn said she is hopeful that Congress will move in a way to recognize what the FCC, although she added, “We’re not going to get a blueprint of everything that comes before us.”

At an earlier session, Federal Trade Commission chair Maureen Ohlhausen assured the audience that the FTC is ready to play a larger role in enforcing Open Internet regulations that are part of the FCC’s repeal of Title II classification.

“From the advent of the Internet until 2015, the FTC played an active role," she said. “Now that the Open Internet order was put out, eventually the authority is going to come back to the FTC.”

CTA president Gary Shapiro, who interviewed Ohlhausen on stage, said, “No other session in CES history has gotten as much pre-show attention” as the expected Pai participation.

Shapiro characterized CTA’s stance on net neutrality as "very complex in terms of nuance.” He said that he believes Republicans and Democrats agree on “the most fundamental basic principle” that consumers should be able to get whatever they want.

FCC commissioner Mignon Clyburn says the government should not be spending money to subsidize multiple carriers where one is providing quality service.

That came in a speech at a Montana High Tech Jobs Summit in Missoula today (Oct. 9), according to a copy of the prepared text.

"One of our primary goals at the FCC, is to be good stewards of ratepayer dollars," Clyburn said. "That means moving away from the past practice of using our high-cost program to fund multiple networks in the same geographic area. We should not support a company that is serving an area where another provider is providing quality service without a subsidy. That is fundamentally inconsistent with protecting consumers and it does not enable the market to work as intended."

But she also said that closing the digital divide is about more than just getting to the home. It needs to be affordable and people need to know why it is so important, which is why she promotes digital literacy as well as subsidies where they are needed.

Republican chairman Ajit Pai has made closing the digital divide a piority, but Clyburn invoked another high-profile Republican -- former President George W. Bush -- to provide some cautionary advice about the need to go beyond just being there.

"Another point often lost when we talk about the digital divide, is what happens when we actually bridge the divide," she said. "Too often, we declare mission accomplished when we’ve connected a home that has been forever without, but I challenge you to take a more nuanced view. We should only claim victory, when a consumer is meaningfully using their connectivity, to take advantage of the economic, educational, and health care opportunities, it affords."

***

LEARN MORE: NYC TV Week is coming up, starting with the 27th annual Broadcasting & CableHall of Fame on Monday, Oct. 16. For more about #NYCTVWK, click here

FCC chair Ajit Pai said during an FCC reauthorization hearing in the House Communications Subcommittee that if the facts warrant and the law allows it, the FCC will be aggressive about freeing up TV band white spaces for rural broadband.

Rep. Peter Welch (D-Vt.) said rural broadband is being left behind, with slower speeds and capacity. He said there was a potential opportunity with the White Spaces proceeding and the Microsoft proposal, though he did not identify it by name.

Microsoft has pitched reserving TV channels after the repack for rural broadband.

Welch pressed each commissioner about using white spaces to expand rural broadband, while still protecting broadcast signals and important local news.

Commissioner Mignon Clyburn said she would be the wind beneath the wings of using white spaces for broadband, and Commissioner Michael O'Rielly noted that he has long supported white spaces for unlicensed, but not at the expense of full-power broadcast channels if it came to a fight.

The National Association of Broadcasters has argued that Microsoft's plan is a threat to broadcasting, and said if the company wanted the channels, it should have bid on them in the incentive auction.

The FCC has adopted the order clarifying that the rules on phone privacy are back in effect and dismissing as moot challenges to the telecom broadband privacy rules Congress nullified through a Congressional Review Act resolution.

The vote was unaminous, but with commissioner Mignon Clyburn dissenting in part and with a lot to say about what she said was the remaining lack of clarity about broadband privacy protections.

FCC chair Ajit Pai circulated the item earlier this month, which also reminds telecoms of their annual privacy compliance certification obligations.

The FCC went straight to an order rather than putting the item out for notice and comment, explaining that "because we are simply recognizing the effect of the resolution of disapproval, we find that notice and public procedure are unnecessary to reflect this action in the Code of Federal Regulations."

"Today, the Commission releases a ministerial Order to implement the Congressional resolution disapproving the Commission’s 2016 Privacy Order, which had amended the Commission’s rules implementing Section 222 of the Communications Act," said FCC Chairman Ajit Pai. "Because Congress has invalidated the 2016 Privacy Order, we simply make clear that the privacy rules that were in effect prior to 2016 are once again effective."

The chairman said that while his plan was to have the Wireline Competition Bureau handle what he called a "ministerial act," Commissioner Mignon Clyburn requested it be handled at the commission level, with a vote.

Pai said he was "perplexed" by her decision to dissent in part, since he says she made no changes to the item. "When a Commissioner does not share her concerns about an item until after she casts her vote, it makes it difficult to work together to find common ground," he said.

In that dissent, Clyburn said that while she concurred with giving guidance in the context of phone service and putting legacy rules back on the books in an era when the chairman is taking a weed-whacker to rules to "the detriment" of regulatory certainty, she said simply dealing with phone privacy left a broadband privacy gap in the absence of the rules the CRA nullified, and which she voted for.

She called it "facile and bull-headed" not to seek comment on how the proceeding was affected by the CRA nullification, the first time it had ever been used on FCC rules. "Second, and more importantly, this Order shows that the majority is committed to reversing Title II for broadband and that they are willing to leave broadband consumers without privacy protections while this work is ongoing," she said. "Even if we did not adopt rules, we could adopt enforcement guidance or a policy statement using the voluntary code of conduct on which broadband providers seeking reconsideration were willing to agree. But no, the Commission is ot even doing that. We now simply have the bare text of section 222 for broadband, and decade-old rules for legacy voice," she added.

Pai has proposed reclassifying ISPs as information service providers, rather than telecoms, after which the Federal Trade Commission would reclaim its authority over broadband privacy, which it lost when ISPs were classified as common carriers in the 2015 Order. The FTC is prevented from enforcing regulations on common carriers.

In the meantime it is not clear what the state of broadband privacy oversight is, though ISPs have pledged to protect sensitive customer information because it is in their interest to do so, though what should be defined as that sensitive personal information for purposes of collecting and sharing is one of the issues that divides the edge providers and some net privacy activist groups from ISPs.

The phone privacy rules the FCC is clarifying do refer to telecommunication service, under which ISPs are still classified under Title II. But the language is pretty phone-specific.

In the event that FCC commissioner Mignon Clyburn decides not to stay on past the end of her tenure -- or if the president or congressional Democrats decide to nominate someone else -- plenty of names are being floated for the job. The list of potential FCC nominees, which one Capitol Hill source said is the most definitive list around, includes the following:

Gigi Sohn: A former top aide to FCC chairman Tom Wheeler, Sohn is former head of Public Knowledge and a strong proponent for Title II-based Open Internet regulations, though she was also at the table — with Public Knowledge — for the previous non-Title II-based open internet regulations under then-chairman Julius Genachowski.

Sohn was a familiar face on Capitol Hill as a witness on various issues during her time atop Public Knowledge. A Hill source said Sohn seemed to be getting a lot of buzz for the post, though it usually requires Senate backing and there are other candidates with closer ties.

Danny Sepulveda: His resume includes deputy assistant secretary of State and U.S. coordinator for International Communications and Information Policy in the Obama administration — Politico tagged him “ambassador to the internet” — and before that, senior adviser to then-senator and future Secretary of State John Kerry (one of those important ties, so long as Kerry still has some pull) and an aide to then-Sen. Barack Obama. He also worked with Sen. Barbara Boxer (D-Calif.) and for the National Council of La Raza.

Tim Wu: If he does not get the open Democratic seat on the Federal Trade Commission — an industry source said another name has been floated for that post — he is in the mix for a Clyburn seat.

Wu, a professor at Columbia University, coined “network neutrality,” a term that does not ring pleasantly in the ears of most Republicans, at least when paired with Title II. But he has also suggested the government should take a close look at Google’s search activities, given what he said was “new evidence that it has been favoring its own content in local search.”

Joseph Wender: Wender is senior policy adviser to Sen. Ed Markey (D-Mass.) and a staffer since 2009. As such, Wender has been at the senator’s side, and ear, through his very public fights for net neutrality, broadband privacy, set-top box rules, children’s TV rules and virtually all the major communications policy issues over that time. One Democratic source said Wender was one to watch, particularly if Markey gets Sen. Elizabeth Warren (D-Mass.) and progressives on board, which would be a “formidable combination.”

Roger Sherman: Sherman, probably a long shot, is the former FCC Wireline Bureau Chief and was an aide to then-Sen. Henry Waxman (D-Calif.). Waxman was chairman of the House Energy & Commerce Committee. Sherman is a former Democratic counsel to the House Energy & Commerce Committee, under Rep. Walden’s predecessor, Fred Upton (R-Mich.), and staff director of the Communications Subcommittee. His resume also includes a stint as an attorney at Sprint and he was with Wiley Rein, the law firm that has a reputation as something of a training ground for high FCC posts (the “Wiley” is Dick Wiley, former FCC chair), and sometimes welcoming them back again.

Chanelle Hardy: A list of potential additions to the government would hardly be complete without at least one Google connection. Hardy is currently the Strategic Outreach and External Partnerships director for the search giant. But even more germane, before that post she was Clyburn’s chief of staff.

Hardy is the former head of the National Urban League’s Washington bureau and was chief of staff to then-Rep. Artur Davis — a Democrat who switched to Republican, then switched back again — as well as serving as a staff attorney at the Federal Trade Commission.

Free Press and the other challengers to the FCC's decision to reinstate the UHF discount have told a federal court that it makes no sense for the FCC to reinstate a rule it concedes is obsolete "based on the mere possibility that the Commission will, in the future, open a proceeding to consider something that, as of now, a majority of the Commission believes it cannot or should not do."

That came in their filing in support of a request for an emergency stay of the implementation of the UHF discount, which was scheduled to happen June 5 but was delayed by the U.S. Court of Appeals for the D.C. Circuit to allow more time to consider the stay request and the FCC's response. The filing was also in response to Sinclair's intervention in support of the FCC and in opposition to Free Press' motion for the stay.

The discount means that a station group only has to count half the audience of its UHFs toward the 39% ownership cap, which dates from the pre-digital TV days when UHFs were the weaker signals. Staying the FCC decision would put a crimp in Sinclair's proposal to buy Tribune, which without the discount would push Sinclair's national reach past 70%.

In defending the stay to the court, Free Press attorneys pointed out that even in voting for returning the discount, Republican commissioner Michael O'Rielly said he did not think the FCC had the authority to adjust the statutorily-set 39% cap on a TV station group owner's national audience reach, the reconsideration of which FCC chair Ajit Pai had given as a reason for reinstating the discount he conceded was likely obsolete and instead reviewing the discount along with the 39% cap.

Related > Sinclair to Senate Dems: Let's Talk

With Democrat Mignon Clyburn voting against restoring the discount, that made the two of three commissioners the Free Press filing referred to, and potentially changing the cap was the thing Free Press is saying the FCC could or should not do, according to O'Rielly and Clyburn.

Sinclair argued that eliminating the discount did not guarantee the FCC would approve its transaction or other future deals, but Free Press said Sinclair did not point to a single example "this century." Free Press also said that while Sinclair said that if the court were to reverse the commission it could mean the divestiture of stations bought "during the pendency" of the case's outcome, that flew "in the face of the reality that no mandated television divestiture has been effectuated in decades."

"Reinstating the discount now, rather than awaiting the outcome of this hypothetical future proceeding, will usher in a wave of media consolidation that undermines the agency’s core statutory objectives," Free Press said. "This consolidation will harm the public by reducing the diversity of voices in the national marketplace of ideas and limiting competition in program production and procurement, thereby lowering the quality and quantity of programming available to the public.

"Unless this Court stays the FCC’s order, the nation’s television ownership structure will be significantly and irreparably altered well before this Court will have time to reach a determination on the merits," Free Press continued. "Granting a stay would maintain the status quo pending judicial review, would not harm broadcasters, and would protect the public interest during the course of this proceeding."

In an unusual move, FCC commissioners Michael O'Rielly, a Republican, and Democrat Mignon Clyburn have taken to the blogosphere together to issue an informal request for comment on means-testing of high-cost broadband subsidies

Formal requests for comment are motormanned by agency chair Ajit Pai.

Both Clyburn and O'Rielly agree that the FCC should not be subsidizing people who don't require government assistance in its quest to reach those who do.

"We should end the practice of spending scarce USF [Universal Service Fund] high-cost support to illogically subsidize the cost of communications services for very rich people who happen to live in the more rural portions of our nation," they wrote.

The high-cost fund is for the hard to reach -- mostly rural -- areas of the country where there is the toughest business case for building out broadband on a purely marketplace basis.

The commissioners offered a proposal to institute means testing, saying they want to spark a conversation and that they also hope to be able to bring up the issue more formally -- that would have to come from Pai -- so as to "properly engage the entire American public."

They suggested that one way to means test would be to set a threshhold for adjusted gross income (AGI) above which households would not get the subsidy, then use a pretty hefty cut-off: "Would it be reasonable to select an AGI of $1 million or $500,000?" they asked, meaning that someone making $999,000 would still get the subsidy.

Among the questions they want input on are:

"What are the advantages and disadvantages of using means-testing? Would it make the program more efficient as some commenters have suggested? Given our limited budget, would it enable the Commission and/or providers to retarget funding to areas or consumers in greater need of support? How can it be implemented without disruption to the current programs? Should it apply on a going- forward basis as rules for additional parts of the high-cost program, such as the Remote Areas Fund, are adopted? Could it eventually be implemented uniformly across all of the high-cost programs as they come up for renewal in the years to come, or would it need to be tailored to each program? How can it be structured to be effective and with sufficient accountability while imposing the fewest costs on providers and consumers? How should the Commission set income eligibility criteria? How should the Commission structure means-testing in a way that is administrable for the Commission, companies, and consumers? What data would the Commission need in order to effectively means-test the high-cost program?"

Democratic Senators joined with representatives of net-neutrality activists Free Press and Fight for the Future to pledge war against any effort by FCC chairman Ajit Pai to reverse the common-carrier classification of ISPs.

That came at a press conference Wednesday morning (April 26) held by Sens. Ed Markey (D-Mass.), Richard Blumenthal (D-Conn.) and Ron Wyden (D-Ore.), three of the most passionate defenders of the FCC's Title II Order, in advance of FCC chairman Ajit Pai's speech on the future of net-neutrality regulation at an event at the Newseum in Washington hosted by FreedomWorks and the Small Business & Entrepreneurship (SBE) Council.

Related:Sen. Schatz Meets With NCTA, Others on Open Internet Order

Also on the call were Craig Aaron of Free Press and Evan Greer of Fight for the Future.

As he has before, Markey said chairman Pai should expect a tsunami of resistance to any such proposal.

Unlike the Republicans' ability to push through a repeal of the related broadband privacy framework, the participants argued, to roll back the FCC's Open Internet order will take time, time they can use to their advantage.

Blumenthal and others pointed out that to reverse Title II, the FCC would have to demonstrate to the court, which upheld the reclassification, that something major and material had changed, which would take time to build a record, and have that record commented on.

They vowed to use that time to mobilize that "tsunami" of consumer opposition, which has so far been a trickle if the FCC's accounting of most active dockets over the past 30 days is any example -- only 69 comments.

They also suggested the Trump Administration had miscalculated its base, which they said did not want big cable companies, which already charge too much for service, deciding where they could go on the Web and what they could do.

One way to delay the rollback would be for FCC commissioner Mignon Clyburn not to vote such a proposal, which would deny the Republicans the quorum they needed to proceed, but neither Markey nor Blumenthal, who weighed in, said they would advise Clyburn to take such action, or inaction as it were, saying that was up to her. Markey did say he would talk to Clyburn, who is the only remaining commissioner who voted for the Open Internet order.

Related:Clyburn Will Make Hill Plea for Open Internet Order

"She is in the middle of the battle herslef, and it is a tough choice, but I am sure she is going to make the right judgmentBlumenthal said. "I will talk to her about what is the best course of action, but I don't want to prejudge it."

Blumenthal said not voting was only one part of a potential strategy, a strategy that "utilizes public opinion, that reaches out to the chairman and the commission," adding that it was obviously her decision.

The language tended toward the extreme on the call, with Blumenthal saying the Trump Administration was trying to kill a vital part of the Internet, the openness that was the heritage and DNA of the "net, and destroy the basic protections of no blocking and throttling and paid prioritization.

He also talked about the speech implications, saying allowing blocking or discrimination threatened the public square soapbox the 'net had become.

Blumenthal outlined their plan of attack, which included to "galvanize the seismic outcry that should follow this kind of misguided effort, and oppose the rollback in committee, on the Senate floor and in the courts.

Asked if Pai's plan could prompt some Democrats to come to the table on a possible legislative fix to secure basic protections outside of Title II classification, Markey said there was nothing wrong that needed fixing and he was focused on stopping Pai. He also suggested any compromise bill would lack sufficient protections.

Last time around, when a massive campaign helped move the Open Internet needle toward Title II, Fight for the Future generated calls to Congress and comments to the FCC and even camped out outside the FCC in protest. Greer warned the same could happen this time around: "Hell hath no fury like the Internet scorned," he said.

FCC commissioner Mignon Clyburn will join House Energy & Commerce Committee Democrats on the Hill Wednesday following a planned speech by FCC chair Ajit Pai about the future of net-neutrality regulation.

Clyburn is the lone remaining FCC commissioner who supported the FCC's 2015 Open Internet order.

Foes of the reversal of the Title II, common-carrier reclassification of ISPs under Democratic FCC chairman Tom Wheeler and President Barack Obama are expecting Pai's speech to lay out the plans for the chairman's expected rollback -- he strongly dissented from the Open Internet order's reclassification -- though some were looking more for a broad brush than a blueprint.

Clyburn has the power to block a rollback, at least temporarily, by not voting the item on circulation, or not showing up at a public meeting where it was scheduled to be voted, or resigning when her term ends at the end of June -- she could stay on until the end of the Congress after this one if she wanted -- or before.

Related: FCC's Clyburn: 'I Still Have Work to Do'

The FCC needs a quorum to approve items and currently is down to three commissioners:, Pai, fellow Republican and Title II reclassification opponent Michael O'Rielly and Clyburn.

Scheduled to appear at the afternoon press conference on the Hill side are ranking member Frank Pallone (D-N.J.), Communications Subcommittee ranking member Mike Doyle (D-Pa.), Doris Matsui (D-Calif.) and Yvette Clarke (D-N.Y.).

Pai has been discussing net neutrality with telecom trade groups and edge providers, including how a voluntary commitment to openness regime might work.

Supporters of the FCC's Open Internet order, including Democrats on the Hill, have sworn to fight a pitched battle to preserve it, as they did to get the FCC to pivot toward Title II under Wheeler.

WASHINGTON — Chairman Tom Wheeler declined to predict the FCC’s future under a new administration, pointing out that he doesn’t have a crystal ball.

Perhaps, but the makeup of the agency, the Federal Communications Commission, got clearer with his announcement that he had tendered his resignation to the president effective Inauguration Day, Jan. 20. The signals are clear that Republicans want to undo much of Wheeler’s legacy.

With Democratic commissioner Jessica Rosenworcel failing to get a Senate floor vote on her renomination, barring some miracle, she will be leaving by the end of the year or briefly thereafter. Lack of clarity about Wheeler’s exit was cited for Rosenworcel’s failure to get that vote. But Wheeler insisted he had made it clear he would hold with tradition and leave by Inauguration Day. He suggested it was because the commission would initially be 2-2 with Rosenworcel reinstalled that Republicans balked at voting her renomination, particularly since he had said last week he would leave the same day she got voted.

WHEN WHEELER MET TRUMP TEAM

Wheeler confirmed he had met at least twice with Donald Trump’s FCC transition team and promised to help with a smooth transition, pointing out he knew something about that process — he led the FCC transition team for the Obama administration.

As of Jan. 20, the Republicans will have a 2-1 majority (with Mignon Clyburn the remaining Democrat) and President Trump will get to pick two new commissioners, a Democrat and a Republican. Clyburn could slow things down in the interim by not showing up to public meetings. The FCC needs a quorum to vote, but the chairman could vote items on circulation, which would not need her vote.

Traditionally, the Democratic pick would be deferred to the Senate minority leader (Chuck Schumer of New York in the new Congress), but President-elect Trump ran on running roughshod over standard operating procedure in D.C., so that is hardly a given.

Ajit Pai is the leading candidate to be interim (and perhaps non-interim) chair. A possible pick for the Republican to fill out Wheeler’s commissioner term — chairmen are also commissioners — is Brandt Hershman, the Indiana state senator with a telecom deregulatory bent. He is said to be a suggestion from VP-elect and former Indiana congressman and governor Mike Pence, who is heading the transition team. That puts Hershman in the chairman conversation as well.

Although Wheeler was not saying what a Trump FCC should do, he was advising on what it should not do, which is throw out regulations in service of anti-government rhetoric that he branded dangerous.

In his final press conference, the chairman said that far too often what goes on in Washington is demeaned. If Wheeler’s mantra was competition, competition, competition (it was), Trump’s arguably has been “drain the swamp, drain the swamp, drain the swamp.”

Wheeler said it was tough to make decisions in the common good as opposed to making decisions in self-interest.

“If we don’t use government to argue these issues out, it doesn’t mean decisions won’t be made,” said Wheeler. “It just means that decisions will be made without the input of the people. The cry for a laissez-faire government that walks away from oversight is also highly dangerous to consumers and those who operate in the marketplace.”

That was clearly a shot across the bow at his Republican successors.

Internet-service providers operating in that marketplace were cordial in their goodbyes to Wheeler, who branded Internet access providers as a virtual monopoly on the conduit to the consumer, with the incentive and ability to discriminate in those companies’ self-interest.

The FCC’s name for ISPs in official documents was even something of an outside joke in the Wheeler regime: broadband Internet-access service providers, or BIAS.

Wheeler’s legacy will be mixed. He was drawing praise from public-interest groups for his effort to spur set-top box competition, but that ran into pushback from his own party. He ran out of time on a business data services proposal that cable operators and other ISPs pushed back on. He was being praised for advancing the spectrum auction, but so far that is in its fourth stage as the spectrum the FCC can reclaim for broadband continues to drop. And the Title II reclassification of ISPs that was arguably the centerpiece of his tenure will likely be rolled back, as well as the broadband privacy regulations that are connected with it.

Wheeler appeared to have a clear sense of his mission, which was to make sure that broadband, the transformative technology of this century, was available to all — which he combined with a distrust of the marketplace gained from experience as a lobbyist.

He said last week those lobbyists were good people, but pushing self-interest rather than the public interest.

Wheeler is a famed student of history, which includes the struggles to get electricity to the farm wives still beating clothes on rocks well into the last century.

BIAS TOWARD THE EDGE?

Some can fault — and many in the industry do — how he chose to accomplish his task. But it is hard to argue against trying to get broadband to everyone.

ISPs argue that is what they have already been doing, and that the best thing the FCC can do is provide regulatory certainty, preferably the certainty of a light regulatory hand, in a climate conducive to investment and innovation. They took issue with the FCC’s continued suggestion under Wheeler that broadband was not being deployed in a reasonable and timely manner, a stance used to justify new regulations.

Wheeler signaled from day one that he viewed the FCC as a consumer-focused agency and consumers, not industry, were his constituency. But again, media companies argue that they serve consumers too and could serve them better freed from some of the rules Wheeler imposed or refused to unimpose.

The outgoing chairman also made clear that he viewed edge providers like Google and Facebook as creative forces for good that need to be protected against ISPs and their monopoly conduits into the home.

That approach is likely to change under new management.

“Perhaps the primary legacy of the Wheeler era is the relative primacy of companies at the ‘edge’ of the Internet, such as Netflix or Google, over Internet access providers like Comcast or Verizon,” communications attorney Robert Cooper, a partner in Boies, Schiller & Flexner, said. “While telecom regulation need not be a zero sum game, I would expect the pendulum to move in another direction in a post-Wheeler FCC.”

The Senate Commerce Committee has released the findings of an FCC Inspector General (IG) report into the leak of information surrounding a failed compromise on Lifeline reform between Republican commissioners Ajit Pai and Michael O'Rielly and Democrat Mignon Clyburn.

The report concludes that FCC chairman Tom Wheeler did authorize "the release of the fact that a compromise order with a cap on Lifeline [might] be on the agenda," but that that was within his right as the chairman to change the nature of the information from nonpublic to public.

The conduct was neither improper nor illegal, but unusual, the IG said.

The report also concluded that the chairman did not authorize the disclosure of the amount of the cap on the fund, and "found no evidence that the information was provided to the press in an attempt to unduly influence the outcome of the vote."

FCC Communications Director Shannon Gilson explained to the IG that "throughout the morning of March 31st, the FCC Office of Media Relations had been inundated with calls from the press and that it was clear many reporters and stakeholders were already aware a deal was being crafted by Commissioner Clyburn and the Republican commissioners. Thus, because she felt it would be beneficial to get the story out accurately, Gilson sought and received authorization from Wheeler and Milkman to provide the press with high level details."

"The IG report found that the Chairman properly used his authority to make public certain information about the changing state of play regarding the Lifeline Order," said FCC press secretary Kim Hart. "The report also found that he did so in response to intense media interest in the item and to ensure accurate information was being reported, not to improperly influence another Commissioner as has been alleged."

An FCC official speaking on background called it "curious" that Wheeler staffers had very clear recollections of what happened the morning of the meeting, while staff in "other offices" could not recall details about their conversations with reporters.

Then there was the fact that while the IG found the chairman had not authorized the leak of the amount of the cap, it got out anyway.

“The findings by the inspector general reveal significant dysfunction and a lack of transparency at the FCC,” said Commerce Chairman Sen. John Thune. “Under the agency’s current interpretation, the FCC chairman is free to leak cherry-picked details about proceedings and deliberations while other commissioners are gagged and even kept in the dark about decisions by the chairman to approve such leaks. Worse yet, the FCC is not keeping a record of decisions by the chairman to disclose non-public information. This report is yet another indication of increased partisanship and dysfunction at the FCC that underscores the need for Congress to reform how the agency does business.”

Thune last April sought the investigation into how a compromise Lifeline proposal fell apart and what role the possible disclosure by the FCC of nonpublic information played in that process.

Wheeler had proposed a soft cap of $2.25 billion on the low-income Lifeline advanced telecommunications subsidy, which the FCC is migrating to broadband. That would have been an extra $750 million in spending and even that could be exceeded if necessary. Republicans were looking for a cap and the compromise was $2 billion and no going over that unless the FCC commissioners vote to raise it.

In a letter to Wheeler back in April, Thune said events surrounding the FCC's March 31 meeting, at which the Lifeline proposal was voted, raised "new questions about the Commission's policies for the disclosure of nonpublic information."

In launching the investigation, Thune said the delays were "highly unusual -- they certainly were for the generally punctual Wheeler commission -- and cited media reports, including Multichannel News/Broadcasting & Cable stories, about the compromise and the delay.

Thune said the leaks of info appeared "designed to engage outside interest groups to disrupt the deal struck between the Republican Commissioners and Commissioner Clyburn.

The March 31 meeting was delayed for over three hours after the Republican-backed compromise was struck and then fell apart after commissioner Clyburn decided she could not support a cap on the Lifeline fund, which subsidizes advanced telecom to low-income residents. The FCC is migrating the fund to broadband, but ultimately voted not to cap the fund, though approaching the $2.25 billion allocation would trigger a review of the fund.

How she came to that conclusion was what the Republicans wanted to know.

The Lifeline vote was 3-2, and particularly contentious, with the Republicans complaining about the collapse of the deal and laying blame at Wheeler's feet, suggesting he had tried to get stakeholders opposed to the cap to submarine the deal of which he was not a part. Wheeler has said there was no such strategy to kneecap the compromise, and the suggestion that there was "balderdash."

According to industry sources tracking the process, the Notice of Proposed Rulemaking (NPRM) on access to independent programming FCC Chairman Tom Wheeler and commissioner Mignon Clyburn are working on,stemming from the notice of inquiry on that issue, has at its core making Charter/Time Warner Cable access conditions the law, or at least rule, of the land.

The NPRM is expected to propose applying industrywide, per a new FCC rule, the Charter/TWC condition--contained in a Department of Justice Consent decree--that prohibits New Charter from preventing programmers from doing deals with online video distributors (OVDs) like Netflix.

That would include codifying the associated DOJ conditions that distributors will not be able to employ most-favored-nation (MFN) clauses if "they are inconsistent with [that] prohibition," and that distributors are also prohibited from retaliating against programmers for licensing to OVDs.

It could potentially do more, but that would be the baseline-the item is said to be a work in progress, but with the goal of potentially voting on it at the FCC's September meeting.

The NPRM stems from a Notice of Inquiry launched last February in response to a request from Clyburn after agreeing to support mergers, including Charter/TWC, in which access to independent programming issues were raised.

David Goodfriend, who represents independent programmers, signaled that making the deal conditions industry-wide policy was the least the FCC could do to address the issue of access to independent programming.

"The DOJ consent decree in the Charter merger was fine as far as it went," he said, "but every programmer has to deal with every other MVPD and those other agreements often negate the good work that DOJ did. So, it only make

sense for the FCC to extend that concept industrywide. But the FCC should go farther in promoting diversity in the video market.

Clyburn said at the Independent Show in Orlando that since the inquiry had been opened, more than 36,000 comments had been filed. She also said she was working with the chairman on "next steps" and would prefer that the FCC propose some new rules. Those are now in the works.

It may have helped that Clyburn also said at the Independent Show that there was no rush on the set-top box proposal the chairman will need her vote to approve. The FCC has gotten pushback from the Congressional Black Caucus on that proposal related to access to diverse programming, so addressing independent programming access in the NPRM might be a way to assuage some of those concerns and gain more support for the set-top plan.

Wheeler's office had no comment. Clyburn's office would only say she "continues to explore next steps with the Chairman."

But one caveat is that a Notice of Proposed Rulemaking is only that, a proposal. The FCC would still need to collect comment and vote a final order. Some NPRMs remain open for years, as was the case with the retransmission consent reforms proposed under then FCC Chairman Julius Genachowski.

It looks as though there could be new FCC rules on access to independent programming after all, or at least a proposal to adopt them.

According to multiple sources, a Notice of Proposed Rulemaking is in the works from FCC Chairman Tom Wheeler and commissioner Mignon Clyburn, stemming from the Notice of Inquiry (NOI) launched earlier this year at Clyburn's request.

An FCC spokesperson had no comment, but an industry source suggested it could be as early as a September public meeting vote. No word on what the new rules would look like, but there are a lot of issues on the table.

In outlining the inquiry, which was launched last February, Media Bureau chief Bill Lake called it a fact-finding enterprise on program diversity and possible ways to address complaints that cable operators and other multichannel video-programming distributors (MVPDs) might be stifling competition.

Among the things the FCC sought input on was most favored nation and alternative distribution method provisions in contracts, which independent networks have said can hinder their access. It also got comment on access to over-the-top distribution, program bundling, and issues affecting public, education and government (PEG) channels.

Wheeler will need Clyburn's vote on a set-top box proposal that has gotten pushback from some Hill Democrats as potentially adversely impacting diverse programmers, so proposed rules on independent content access, including diverse, programming could smooth the way for garnering more support for unlocking the set-top box, including on the Hill.

Clyburn pushed the FCC to open the inquiry after the FCC approved mergers that raise issues about that access.

RELATED:Cable ISPs Tackle Title II Again

That access is a big issue for the American Cable Association, which argues that program bundling practices and most-favored-nation clauses are an impediment to those independent voices. "We want to assure there is a diversity of voices in the marketplace," Polka said, in asking where Clyburn thought the inquiry was headed.

Clyburn said at the Independent Show in Orlando last week that since the inquiry had been opened, more than 36,000 comments had been filed. She also said she was working with the chairman on "next steps" and would prefer that the FCC propose some new rules. Apparently, those are now in the works.

RELATED:USTelecom Seeks Full Court Re-Hearing on Title II

Whatever the outcome, she told ACA President Matt Polka in a Q&A, the "fact-finding" exercise left the FCC in a better position to find solutions. Polka indicated it was a good "first step" and said he hoped it could move to a rulemaking at some point.

A rulemaking is only a proposal, however, and is no guarantee of a final order or new rules, as was the case with a retransmission consent reform NPRM under FCC Chairman Julius Genachowski.

Sen. Deb Fischer (R-Neb.) will address the Independent Show in Orlando July 25.

Fischer, who is a member of the Senate Commerce Committee, will be interviewed by American Cable Association president Matt Polka.

"ACA is very delighted that Sen. Fischer will be on hand to discuss the key issues that she and her constituents across Nebraska care so much about," said Polka. "Her leadership on providing 21st Century telecommunications services in the hard-to-reach spaces of the State and country mirrors so many of ACA's perspectives."

For example, Fischer was among a group of senators who recently asked FCC Chairman Tom Wheeler to further study the impact of its set-top box proposal on smaller pay-TV providers before proceeding to vote on a final order.

Also on the agenda are remarks from FCC Commissioner and former chair Mignon Clyburn.

The show, which focuses on issues facing independent cable operators, is being held July 24-27 at Walt Disney World's Swan and Dolphin Resort.

There appeared to be a majority of commissioner votes for the FCC taking more time to review its broadband privacy proposal, which drew applause from an INTX2016 crowd concerned about the impact of the framework on their business models.

That came Tuesday (May 17) at a special taping of C-SPAN's Communicators series at the INTX 2016 show in Boston, and despite the FCC's recent decision, at the bureau level, not to grant requests for an extended comment period on the proposal, which would require an opt-in regime for third-party marketing of customer data, though there is not such limitation on edge providers like Google.

The panel session Tuesday morning featured four of the five FCC commissioners--the chairman, Tom Wheeler, is scheduled for a Wednesday Q&A at the show.

C-SPAN took its Communicators series on the road for a special taping of the INTV panel session, appropriately titled "The Communicators: The FCC Commissioners on Competition, Convergence and Consumers," with host Peter Slen, senior executive producer, C-SPAN, doing the querying, along with Lydia Beyoud of Bloomberg BNA. (The show airs Saturdays at 6:30 p.m.).

Republican members Michael O'Rielly and Ajit Pai both support giving stakeholder more time top weigh in, but Democrat Jessica Rosenworcel also said Tuesday she thought it would be appropriate to have a longer proceeding.

She reminded the audience that she had said it was a complicated proceeding. "I want to point out that I was the one who pointed out there were more than 500 questions [teed up in the proposal] and I believe this is the kind of subject that is complicated and would benefit from a longer rulemaking."

O'Reilly shot back, asking why chairman Wheeler had said "absolutely not," adding: "Why won't [the chairman] listen to the three of us and agree that we should have more time on such a complicated subject."

Rosenworcel did point to those questions as suggesting the proposal was not yet set in stone and issues like opt in and opt out were subjects on which there would be more discussion.

But while Pai conceded they were having a robust discussion about it in Boston, back in Washington he suggested it was pretty much a fait accompli.

"We will clearly talk about it," said Pai, but added: "I think it is pretty clear from FCC leadership that the writing is on the wall." He said the fact that the FCC would not give stakeholders a few extra days to submit comments" suggested minds had been made up already.

The Republicans had the same complaint about FCC Chairmen Tom Wheeler's set-top box proposal--to require MVPDs to make their programming and data streams available for re-aggregation by third-top navigation devices.

While the Democrats on the panel pointed to the fact that it had asked lots of questions, and was still a work in progress, the Republicans countered that they expected it to be voted on in essentially the same form.

Pai said that it was not a conversation the FCC had started on set-tops, but a dictation, a case of sentence before verdict in which the FCC had taken an ideological position and only gone through the formality of seeking comment on a decision that had already been made.

Asked if the FCC should pause that proceeding, as well, as some in Congress have asked while various studies are conducted on the impact of the proposal, there was certainly not push from either Democrats or commissioners for speed over contemplation.

Rosenworcel said the FCC had to take into account those requests from Congress, but also the mandate from Congress in statute to promote competitive navigation devices.  She said the FCC was currently wrestling with all that.

Mignon Clyburn suggested all that wrestling—which the Republicans were clearly not conceding—was a healthy exercise in “pausing” and weighing all the input and moving forward if that was necessary "in order to improve, encourage and to sometimes push these dynamic ecosystems that we have.”

O’Rielly suggested the place for the proposal was “the garbage.”

The "interplay" of three pending FCC issues -- the "unlocked" set-top box proposal, privacy rules and "the ultimate resolution of  net neutrality -- is impeding cable industry development and improperly putting "a government imprimatur on the notion of competition," NCTA president/CEO Michael Powell said March 23 at the Free State Foundation’s Eighth Annual Telecom Policy Conference.

Expanding his criticism of several FCC initiatives, Powell cited the agency's "biases [towards] the development of tech companies" that "makes it possible for tech companies to invade our traditional areas" but prohibits cable firms from moving in  their direction. 

He singled out the recent privacy proposal that would affect Internet Service Providers (including cable operators) in different ways than it would impact content or application suppliers.

"Privacy is not controversial; it is the hypocritical inconsistency that is controversial," Powell said.  "You cannot describe that data collection and monetization is the justification for this level of rules while ignoring the fact that [similar actions] take place on every other platform that consumers use."

Powell challenged the FCC to find a way to differentiate "between the value of privacy and personalization" without taking a heavy-handed approach.

He also slammed the set-top box proceeding, saying that it "perfectly encapsulates government intervention."

"You cannot find one soul who doesn't recognize that there is no market that is shifting more than video delivery," Powell emphasized.  He said cable has lost 50% of its market share to new entrants, referring to telco TV and over-the-top operators. "This market is on fire."  He called the FCC's STB plan a "rent transfer" decision and an "unrestrained violation" of its role.

"All costs will be borne by customers," Powell said. He pointed out that the proposal will take at least five years to implement, "by which time the market will have changed."  The commission should not "pick winners and losers," Powell said.

His criticisms came during a panel of association executives discussing "Hot-Topic Communications Issues," part of a day-long program that included FCC commissioners Michael O'Rielly and Mignon Clyburn plus Federal Trade Commission member Maureen Ohlhausen. FSF's intent was to explore "the FCC and the rule of law," although many of the speakers focused on perceived abuses of power.

Even FCC general counsel Jonathan Sallet, in a conversation with FSF president Randolph May that was centered on procedural processes at the commission, conceded that "more direct conversations between commissioners would be a very helpful step."  Sallet, who recommended changes to sunshine laws "so that commissioners can deliberate," acknowledged that the FCC could use more input on many topics it is reviewing.

"Sometimes we know issues are in flux and we need to know more," he said.

Right-leaning FSF's agenda began with politicized rhetoric when keynoter Rep. Marsha Blackburn (R-Tenn.)  lambasted the FCC and singled out chairman Tom Wheeler as "a bull in a china shop."  Blackburn, vice chair of the House Energy and Commerce Committee and a member of its Communications and Technology Subcommittee, characterized the FCC staff as having "failed to exercise regulatory humility," citing its recent effort to oversee privacy, which she said is the FTC's responsibility.

"The FCC does not have the necessary expertise to oversee privacy," she said.  "It is arguing for a solution that is one-sided and focused only on one part of the Internet ecosystem."  

Blackburn also plowed into the issues of unlocked set-top boxes and municipal broadband, citing that Memphis "is $27 million in the hole" from its flirtation with such plans, and "the list of failures goes on and on."

"It's the government's job is to create an environment that encourages competition, not to create a system where the government is the competition," she said. "If the state decides to create broadband networks, so be it, but "the FCC has no right" to butt in.

As for the open STB issue -- which she referred to under the old "All-Vid" name -- Blackburn said, "Nashville content creators are absolutely baffled by what the FCC is trying to do." She contended that the FCC plan would encourage theft and could create conflict between FCC policy and business contracts between content producers and carriers.

"It has created a tremendous amount of confusion," Blackburn said.

"The FCC's decision-making has frustrated content makers, the telecom industry and policy makers," she concluded, emphasizing that telecom "has thrived under light-touch regulation."

Diplomatic Commissioners

FSF's May sought to explore possibilities for less politicization and more "collegiality" among FCC commissioners during his "fireside chat" with O'Rielly and Clyburn, with a series of "can't we all just get along" questions.  Both officials initially tried to be cordial.

O'Rielly: "I get along with my colleagues very well. ... I try not to let one issue color my feelings about the next one."

Clyburn: "My compass is serving the public interest. We're not in a vacuum." 

And then they got into specifics, where political polarization quickly emerged.  They disagreed on the STB plan.

"Words have meaning," O'Rielly said about the chairman's perception that software is part of the STB revision. "When Congress wrote 'equipment,' it didn't mean 'software.'"  The direction toward applications and software has nothing to do with the statute and is "problematic," he added.

Clyburn insisted that "Congress envisioned a robust marketplace...whatever the interface is."  She said that the plan is focused on "whether this is a non-competitive marketplace."

Similarly, on the privacy issue, O'Rielly pointed out that "our expertise, the number of people at the FCC working on privacy is small, compared with expertise at the FTC."  Clyburn said she doesn't use the word "duplicate" but rather focuses on "context," considering the two agencies' efforts "complementary."

"We work together to insure that expectations are met," Clyburn said.

And again when discussing the Open Internet situation, she emphasized "flexibility and innovation," while O'Rielly insisted, "You can never have certainty when you have no structure." 

"That's what the chairman created under the 'net neutrality rule," O'Rielly said.

They also sparred over proposals for "lifeline" services.  O'Rielly said he prefers "a hard budget rather than a [percentage] cap," while Clyburn insisted that the plan "removed duplicates, put in discipline and [provided] a lot of accountability."

The panel of association executives, which included (in addition to NCTA's Powell) CTIA president/CEO Meredith Baker; U.S. Telecom Association president/CEO Walter McCormick; NARUC general counsel Brad Ramsay; and Nicol Turner-Lee, VP of the Multicultural, Media, Telecom and Internet Council, continued the blast of the FCC rulemakings and its process.

Regarding muni cable, Ramsey said, "The FCC is telling the state what to do." He predicted if the Sixth Circuit appeals court in Cincinnati, which is reviewing challenges by Tennessee and North Carolina to the FCC's muni cable ruling, sides with the FCC,  the case is likely to go to the Supreme Court and it will be reversed.

McCormick focused on FCC decisions that are "slowing investment in the industry. "

"We've seen that in every year since the recession, there were increase in broadband investment up until Title II," he said, referring to the FCC's 2014 ruling to regulate broadband.  McCormick said that annual investment growth for the industry dropped from 9% to almost nothing, contending that the privacy issue has further muddied the financial market's view of telecom. He criticized FCC policies as thwarting "the full development of the telecom industry."

The CTIA's Baker focused on 5G (fifth generation) wireless as a "life-changing technology," calling it the "high-speed spectrum frontier." She emphasized the Internet of Things opportunities.

Most of the panelists were also critical of President Obama's intervention in the net -neutrality decision rulemaking which led to the now-contested Title II decision.

"It sets a bad precedent," Powell said. "Future administrations will use it as a precedent.  We might as well have a Secretary of Communications."

At an afternoon session wrapping up the "rule of law" theme, AT&T senior VP Robert Quinn promoted the value of a revision of the Communications Act.

"We have to go back to the drawing board," he said. "The Act really doesn't contemplate the kinds of things we're doing differently with the Internet.  We compete with everyone."

FSF's May said that this year's event was the best-attended conference in its eight years.

David Grossman, from the office of House Communications Subcommittee ranking member Anna Eshoo (D-Calif.), is heading to the FCC to be chief of staff to commissioner Mignon Clyburn, according to multiple sources.

Grossman has been senior tech policy advisor for the congresswoman, who has been extremely active on communications issues (her district includes Silicon Valley).

Clyburn chief of staff and media legal advisor Chanelle Hardy exited in January, with Holly Sauer assuming media advisor duties, detailed from the Media Bureau where she has been associate bureau chief.

Hardy had been in the post for only seven months or so, succeeding chief of staff Adonis Hoffman.

The Free State Foundation has named a D.C. all-star lineup of speakers for its eighth annual Telecom Policy Conference March 23 at the National Press Club including FCC and FTC commissioners, top FCC officials and National Cable & Telecommunications Association President Michael Powell.

The speakers are Meredith Baker, president and CEO, CTIA-The Wireless Association; FCC Commissioner and former chair Mignon Clyburn; Seth Cooper, senior fellow, Free State Foundation; Randolph May, president, Free State Foundation; Walter McCormick, president,

USTelecom; FTC commissioner Maureen Ohlhausen; FCC Commissioner Michael O'Rielly; Michael Powell; Robert Quinn, SVP, federal regulatory, AT&T; Jonathan Sallet, general counsel, FCC; Nicol Turner-Lee, VP and chief research and policy officer, Multicultural Media, Telecom and Internet Council (MMTC); and Philip Verveer, senior counsel, FCC.

Among the topics teed up for discussion are the FCC's Title II-based Open Internet order appeal, video competition (the FCC is launching an inquiry this month into independent programmers' access to distribution channels), and universal service and Lifeline Reform (FCC Chairman Tom wheeler signaled this week that should be coming soon).

FCC commissioner Mignon Clyburn said she expects the commission will soon launch a notice of inquiry (NOI) on access to over-the-top distribution channels by independent programmers.

An NOI is an investigation and might or might not result in any regulation.

That came at an FCC commissioners panel at the Multicultural Media, Telecom & Internet Council's annual Broadband and Social Justice Summit in Washington Thursday.

She said that while OTT offers a lot of promise and optimism on the surface, from those she has talked to, “the same old legacy issues” about getting projects greenlighted and access to distribution channels remain. She said she did not know whether it was an issue the FCC could solve, but it would be a platform for discussion and put attention on the issue.

She said her audience would hear about the NOI in the next few weeks.

In an impassioned speech to MMTC the day before, consultant and former top Clinton telecom adviser Larry Irving lamented the dearth of black or Latino producers in the new crop of online originals from Netflix.

Neither Republican commissioner Ajit Pai or Michael O'Rielly professed to know that an NOI was contemplated but said they would be interested in seeing it.

Pai said the FCC didn't need to be in that space and that there were plenty of opportunities to get content on the Web and profit from it.

Clyburn said there was a difference between getting on the Web and making money. She said it was one thing to upload a video and another to make a living. She said there were a lot of Internet stars but asked how much they were "truly making."

"Are there bottlenecks or barriers to entry?," she asked. "These are some of the things that I hope we will talk about" in this inquiry, as well as who should address bottlenecks, "if anyone."

O'Rielly suggested that some YouTube stars were making a lot more than the commissioners on the panel. As to the legacy issues of access to distribution channels, O'Rielly said that YouTube in terms of getting programming out "completely eviscerates a number of the current models that have been so problematic in the past." He said it is no longer how some pilot can be greenlit on a broadcast station. Actually, it is networks that do that, but his point is that with the Web, he can do the pilot from a garage or basement and people can "see it and like it and I can make money out of advertising."

Pai said he was inspired by the people who were bypassing the legacy models to get their content online. He said he had been told by people "across the country" that her OTT proceeding "would be a terrible thing for minority programmers" because it would "lock us in with the big guys and establish legacy regulations over this really nascent space."

An FCC spokesperson would not confirm or deny the NOI, but pointed out that Clyburn had called for an NOI on barriers to diverse programming at the tiome of the FCC's approval of the AT&T/DirecTV deal.

Clyburn backed off a little bit, saying she was "hopeful" there would be an NOI, but appeared confident the NOI was coming.

FCC chairman Tom Wheeler has proposed defining some OTT providers as MVPDs so they will have access to programming, but the NOI would look at the other side of the equation, access by independent programmers to online distribution.

As expected, the Federal Communications Commission voted 3-2 Thursday (Feb. 26) along party lines to pre-empt state laws in Tennessee and North Carolina that limit expansion of municipal broadband, citing its authority under the Sec. 706 mandate to insure advance telecommunications services are being deployed in a reasonable and timely manner.

The order pre-empts geographic limitations on the expansion of municipal broadband systems in Chattanooga, Tenn., and Wilson, N.C., though it does not compel any action on either. The decision does not affect laws in other states, but signals how the FCC might act on similar petitions, which are expected from other municipal broadband providers now that the FCC has fired this shot across the bow at state broadband laws.

The cities of Chattanooga and Wilson asked the FCC to pre-empt their limiting state laws, saying that without those restrictions, they are willing and able to expand their gigabit service to surrounding neighborhoods that had asked for it.

The state laws prevented expansion beyond the footprints of the utilities that are providing the broadband service, or as the FCC Wireline Bureau said, to a "sea of little or no" broadband options. The bureau said the decision was simply letting communities serve their neighbors.

The bureau pointed to the FCC's recent 706 finding that advanced telecom was not being deployed in a reasonable and timely manner, and the section's instructions to act immediately to try and rectify that.

Democratic Commissioner Jessica Rosenworcel, who enthusiastically supported the decision, likened municipal service to a broadband barn raising, an analogy that pleased FCC chairman Tom Wheeler. Commissioner Mignon Clyburn was also strongly supportive.

"Today’s vote seeks to draw a line in the sand once and for all by removing barriers to deployment and fostering competition consistent with the FCC’s core mission and values," Clyburn said.

"For scores of Americans the choice of one, let alone multiple broadband networks, is a dream deferred, and the promise of universal access remains un-kept," she added, leaving many in "digital darkness."

Clyburn pointed out that at one time both Republicans and Democrats supported bills to "block states from restricting local governments’ ability to provide Internet service," notably, the Community Broadband Act of 2005. She also noted that essentially the same bill has been reintroduced, this time by Democrats only. "The only thing that has changed is the lack of bipartisan support."

Commissioner Ajit Pai dissented from the decision, saying flatly that the FCC did not have the authority to pre-empt. He called the decision unlawful and odd.

"Judicial precedent makes clear that the FCC simply does not have the power to do this," Pai said. "In taking this step, the FCC usurps fundamental aspects of state sovereignty. And it disrupts the balance of power between the federal government and state governments that lies at the core of our constitutional system of government."

Pai said he was not taking any position on any municipal broadband project, but was simply saying -- though in a lengthy dissent -- that the FCC did not have the authority to do what it was doing, and dissented.

"The FCC does not have the legal authority to override the decisions made by Tennessee and North Carolina," he said. "Under the law, it is up to the people of those two states and their elected representatives — not the Commission — to decide whether and to what extent to allow municipalities to operate broadband projects. Today’s order is therefore unlawful."

Fellow Republican commssioner Michael O'Rielly, in his stinging and lengthy dissent, called the FCC's reading of Sec. 706 authority distorted and said the agency was using it arrogantly to rewrite state laws; that the decision was legally infirm and bad public policy; that the overly broad restrictions would pre-empt voting requirements and meeting requirements; that the order was hostile to states; that it seemed no restriction would seem to survive the FCC's "unvarnished skepticism"; and that an unintended consequence could be that states pre-empt municipal broadband altogether rather than limit it, since the FCC has recognized it can't pre-empt those laws, only ones that limit it once it is allowed.

Additionally, O'Rielly said the FCC appeared to be using Sec. 706 as carte blanche for regulation.

Wheeler, in his statement on the item, said it was a broadband truth that you can't say you are for broadband and then turn around and endorse limits on who can offer it and you can't reduce barriers to broadband investment and then erect them. That dog won't hunt, he said.

He said the states have authorized municipal broadband, then tried to limit it. The FCC's decision, he noted, was to cut through that red tape in these two specific instances.

But Wheeler also said he hoped it put a spotlight on an ongoing effort to put restrictions on what elected officials can do, and he called out out the "activities of incumbents to block consumer choice and competition through legislation" and the "thickets" of red tape meant to discourage competition.

The chairman also pointed to various audience members who he said had various issues with state limits on expanding gigabit muni broadband -- such as lack of access, kids having to drive elsewhere to get homework online and businesses moving. He said the decision is pro-broadband and pro-competition.

House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) and Communications Subcommittee Chairman Greg Walden (R-Ore.) said the FCC should leave the preempting to Congress.

“Preemption of state law is a limited power reserved to the U.S. Congress," they said. "Today’s 3-2 vote is as disappointing as it ispredictable with this commission where political victory is so often put ahead of the rule of law and the economy’s best interest. The FCC should respect the decisions of each state - whether to allow their municipalities to build out broadband networks or not. A one-size-fits-all approach from unelected Washington bureaucrats prevents states and municipalities from making the tough choices to allocate precious taxpayer dollars.”

Like the Title II vote that is to follow Thursday, the municipal broadband decision is expected to be challenged in court, and a bill has already been introduced to block the FCC preemption and any similar effort.

Federal Communications Commission commissioner Mignon Clyburn has signaled she likes the direction the Title II reclassification draft order is heading -- there is a vote on the order Feb. 26 -- but she also raised several flags, including one that has been waved vigorously by the American Cable Association with an assist from The National Cable & Telecommunication Association: Providing smaller operators some relief from the new regulations.

In a speech to the Federal Communications Bar Association last week, Clyburn said her office was not commenting on the 332-page draft ("including footnotes"). But she said she would take a few liberties with her practice of not commenting on pending proceedings.

Clyburn said agency chairman Tom Wheeler's proposal to use Title II with forbearance, to apply the new rules to mobile as well as fixed broadband, to ban paid prioritization and to prevent the specialized services exemption from becoming a loophole all tracked with what she would have preferred in the original 2010 rules.

"When the chairman announced his proposal upon circulation, I was pleased to hear how closely it aligned with my prior vision," Clyburn told the audience after initially saying she would not comment

"My office is still in discussions with the chairman’s office about the item, and I will not divulge those specifics," she said. "[B]ut what I will say, is that it is imperative that the order strikes the right balance, for consumers deserve and need strong Open Internet protections, and investors need clarity and certainty. And when I say investors here, I include investment in ISPs, edge providers, content creators, as well as those developers in garages and on stoops. Some have expressed concerns about allowing private rights of action in court, failing to consider the impact on smaller ISPs, that including interconnection goes too far or that the case-by-case approach does not go far enough, and that the new conduct rule may not be a strong as the previous unreasonable discrimination rule."

Clyburn said she would continue to listen and find the right balance.

The FCC has unanimously voted to get rid of its sports blackout rules, which had been a backstop to NFL blackout policies.

The commissioners said the rules were outdated, and many made the point that the government should not be complicit in the NFL's decision to black out broadcasts for games with insufficient ticket sales.

The item getting rid of the rules concludes that the NFL is unlikely to move games from broadcast TV to pay, as the league suggested could happen if the rules were eliminated.

The sports blackout rules prevent cable operators and others from providing those games to subscribers in markets where the local broadcast is blacked out.

The NFL can continue to enforce those blackouts in contracts with broadcaster and MVPDs, FCC chairman Tom Wheeler pointed out, but not with the imprimatur of the FCC. If there are blackouts next week, he said, it will be on the league and its owners, "without the participation of the federal government.

Wheeler gave then chairwoman Mignon Clyburn for dusting off the 40-year-old rule and teeing up the initial vote last fall tentatively concluding the rules should go.

Wheeler also called on the NFL to repudiate blackouts.

As to the threat of the NFL moving games off of broadcast, Commissioner Ajit Pai was not buying it.

"To begin with, there is no way that this can happen anytime soon," he said. "The NFL’s contracts with over-the-air broadcasters extend until 2022.

"But more importantly, by moving games to pay TV, the NFL would be cutting off its nose to spite its face," he said. "Television contracts—not gate receipts—make up a substantial majority of the NFL’s revenues nowadays. And professional football is, by far, America’s most popular sport in part because it is the only major sport that makes most games available on free, over-the-air television."

“We commend the Commission’s unanimous decision to eliminate the antiquated sports blackout rule," said the National Cable & Telecommunication Association in a statement. "As the video marketplace continues to evolve and offers consumers more competition and a growing variety of new services, we encourage the FCC to continue its examination of outdated rules that no longer make sense.”

Clyburn used her opening statement to signal some apparent disaffection with the "redskins' name. She referred to the "Washington football team," which has become name critic's choice for referencing the team, and noted the team had resisted calls to change a name some found offensive.

“This is a historic day for sports fans,” said David Goodfriend, chairman of Sports Fans Coalition, which had pushed for eliminating the ban. “Since 1975, the federal government has propped up the NFL’s obnoxious practice of blacking out a game from local TV if the stadium did not sell out. Today’s FCC action makes clear:  if leagues want to mistreat fans, they will have to do so without Uncle Sam’s help.”