Federal Communications Commission chair Jessica Rosenworcel should be commended for the agency’s careful decision to refer the effort by hedge fund Standard General and private-equity fund Apollo Global Management to take over broadcaster Tegna to an administrative law judge (ALJ) at the regulator. There, the facts can be clearly determined around the public-interest standards at stake, including localism, consumer prices, the impact on jobs and diversity of media ownership. 

I was proud when my organization, Public Knowledge, joined with labor unions, civil rights groups, public interest nonprofits, and multiple companies to raise questions about Standard General and Apollo taking over the nation’s second-largest local broadcast TV station owner, Tegna. For years our organizations have fought to stem the tide of media consolidation that is contributing to the gutting of newsroom staffs and the reduction in truly local content to meet the needs of diverse communities across our nation. 

Hedge funds have a history of stripping their new acquisitions down for parts to cut large costs quickly, including firing workers and scaling back operations. In the case of broadcast channels, hedge funds look to cut back on local news and other diverse, targeted programming in favor of national content. FCC filings have shown that this acquisition was structured in a complicated way in order for Standard General to enter into joint retransmission consent negotiations to increase costs for cable TV subscribers. These public interest concerns are always considered in FCC license transfers and certainly warrant a hearing with the agency’s administrative law judge. 

A fact-finding hearing in front of an ALJ makes sense if FCC staff feels it does not have full, accurate information, or a clear picture of the transaction. In addition to the concerns about loss of local content and media consolidation, all parties controlling broadcast licenses in the U.S. are subject to laws about ownership or control by non-U.S. citizens. Concerns over foreign ownership from Apollo Global Management’s stake in the deal must be addressed. Normally after an FCC referral to the ALJ, the parties trying to get a deal approved would withdraw their applications and maybe try again with a different deal structure. Not this time. Instead, Standard General, with a self imposed deadline of May 22 to close the deal, has engaged in an  expensive Washington smear and influence campaign that has become all too familiar around the FCC debates lately. 

In 2022 the public saw a bad-faith smear campaign about issues outside the FCC’s jurisdiction sink a nominee to the commission. Democratic elected officials failed to be unified behind seating a strong public-interest advocate at the FCC in response to this influence campaign. Now, in 2023, we’ve seen chair Rosenworcel’s FCC criticized by Democrats like Sen. Bob Menendez (D-N.J.) for simply following agency processes to get detailed answers about a major broadcast acquisition. In fact, Senator Menendez openly threatened the renomination of the only commissioner of color at the FCC, Geoffrey Starks, and by implication his own party’s ability to control the FCC agenda. Our hope is that such criticism and direct threats to the agency’s important consumer-protection work does not prevent the FCC from doing its investigation and making judgments based on the facts of the transaction. Now more than ever, Congress and the public need expert regulators protecting the public from tech and media consolidation. While we wait for Congress to create a regulator for dominant digital platforms, we already have an expert agency for media and telecommunications in the FCC. Its mandate to protect the public is clear and the debate around this transaction should focus on those protections and the transaction's details.

On this transaction, the Rosenworcel FCC has led with clear, simple process and standard questions. The timing may be difficult for Standard General, but that is their responsibility to adjust their transaction and timeline to fit the necessary review, not the other way around.

Stakeholders on all sides have asked the Federal Communications Commission for more time to digest and comment on the agency‘s request for input on the impact of the Infrastructure Investment and Jobs Act's $65 billion investment in broadband on the Universal Service Fund advanced telecom subsidy program.

Currently the deadline for comments is January 18-31 for reply comments, but the parties argue the issues are too complex and the stakes too high not to provide more time to stakeholders. “Evaluating how this longstanding fund and the newly-minted IIJA can work together to accomplish the FCC’s mandate to connect all Americans will require time,“ the stakeholders said.

Those stakeholders, ranging from NCTA–The Internet & Television Association, ACA Connects and USTelecom to Common Cause, Public Knowledge and the Benton Foundation, joined Wednesday to petition the FCC for 30 more days for comment —until February 17 — and until March 17 for reply comments.

Also: Landrieu to Oversee Historic Biden Broadband Investment

“While not granting this extension will significantly curtail the Public Interest and Industry Stakeholders’ ability to fully participate in this proceeding, granting an extension at this early stage will have little impact on the proceeding and will not prejudice any other party to proceeding,“ they told the FCC.

They opined that the large number of active proceedings has made it “incredibly difficult” for stakeholders to “fully participate.”

They also pointed out that the notice of inquiry (NOI) was issued just 10 days before Christmas with a mid-January due date. “Holiday travel, staff vacations, and end-of-the-year obligations create significant hurdles to evaluate the complexity of the Infrastructure Act’s impact on the USF,” they said, adding that public interest groups have limited resources and tend to be understaffed over the holidays.

Also: New Bill Pushes Reform of Universal Service Fund Support

The FCC does not routinely grant extensions of its comment deadline, but does so on a case-by-case basis for good cause, which the petitioners are convinced they have, including so the FCC can develop a better record on which to base a decision. The FCC also has pushed deadlines in recognition of holiday issues. ■

Public Knowledge and the Benton Institute for Broadband and Society have filed an amicus brief in the U.S. Court of Appeals for the Second Circuit, which is hearing an appeal of a lower court injunction against a New York state law that would mandate affordable broadband.

Back in June, a lower court issued an injunction that temporarily blocks enforcement of the law--which requires ISPs to provide low-cost broadband to low-income households--and signaled that the ISPs are likely to win the underlying case that the law should not go into effect at all.

ISPs--including ACA Connects--argued that the low-cost mandate is a form of common carrier regulation that conflicts with the FCC's most recent decision that internet access is a Title I information service not subject to common carriers regs, and so the New York State law is preempted. Judge Denis R. Hurley of the U.S. District Court for the Eastern District of New York agreed. "To be clear, the ABA is rate regulation, and rate regulation is a form of common carrier treatment," he said in granting the June injunction.

Public Knowledge and Benton argue in their brief that the state's move to ensure affordable broadband access for New Yorkers is an important public policy goal, that the law is not preempted by federal law "under any theory or preemption," telling the court: "Far from Congress attempting to preempt or preclude state action, the Communications Act clearly anticipates, and even encourages, states to join in the regulation of communications services."

That includes rate regulation, they argue, over which the FCC has given up any say in the matter after it reclassified broadband as a Title I information service and effectively gave up control over internet access. "Significantly, this reclassification decision ceded FCC authority for any form of rate regulation. Upon review by the D.C. Circuit, the court determined that FCC lacked authority to preempt the states in areas like rate regulation where the FCC had ceded its authority."

Specifically, the Affordable Broadband Act, which was to have gone into effect June 15, would require ISPs in the state to offer low-income households high-speed broadband--at least 25 Mbps download speeds--for $15 per month, or of 200 Mbps for no more than $20. About 2.7 million households would qualify, or more than a third of all the households in New York. The service has to be offered as a standalone and must be advertised and promoted so people know it is available."

At her nomination hearing for the third Democratic seat on a five-member FCC, Gigi Sohn, former head of Public Knowledge, said she was not in favor of broadband rate regulation, but did not agree that low-cost broadband requirements in new broadband subsidies under the Biden Administration were the same thing.

As to the need for low-cost broadband mandates, ISPs are already offering a variety of low-cost broadband plans using the FCC's Lifeline broadband subsidies, and will be offering more with billions of dollars of COVID-19 and broadband infrastructure aid money.

Also: Biden Broadband Billions Will Boost Small Business

ISPs who also challenged the law included CTIA, The New York State Telecommunications Association, USTelecom, NTCA-the Rural Broadband Association, and the Satellite Broadcasting & Communications Association. NCTA did not, pointing out that "plenty of others" already had. ■

With Congress trying to figure out what to do about Facebook, a bunch of civil society groups have banded together to point the way.

Forty-plus groups including the Fight for the Future, the Center for Digital Democracy, National Hispanic Media Coalition and Public Knowledge have launched a new campaign to get Congress and the Biden Administration to crack down on the social media giant in particular, and Big Tech's use of data “surveillance” in general.

That comes in the wake of the whistleblower revelations about Instagram that have prompted bipartisan pushback on the social-media giant and promises of investigations and new privacy legislation, or what more than one legislator called Big Tech's ”Big Tobacco moment.“

Also Read: Rep. Eshoo Pushes for Subpoena of Facebook Documents

The groups want “a full investigation” into Facebook, including subpoenaing documents, a federal data privacy law, and Federal Trade Commission to take enforcement action against surveillance-driven algorithms and data harvesting.

The groups agree that there remains “a fair amount of disagreement,” “both in Congress and among civil society groups,” over how to regulate algorithms, but said there is still a way to get to a federal data-privacy law that could reduce the harms.

The House Energy & Commerce Committee waded into broadband as an equity issue Thursday (May 6) in a hearing "addressing disparities in access and affordability."

Committee Chairman Frank Pallone (D-N.J.) said one problem creating digital disparities has been too narrow a definition of the digital divide. 

"For too long, the term digital divide has been used to characterize the differences in quality and speed of internet networks in rural areas, compared to those in urban areas," he said in his opening statement. "There is no doubt that government must step in and invest where the marketplace doesn’t support the business case for private broadband investment in any community in our nation. But that's just the start," he said. "Studies have shown that within all sorts of different communities broadband service isn’t always available or of equal quality. Certain communities somehow always find themselves at the back of the line when it comes to upgrades to the network."

Pallone said the digital divide between races and ethnicities when it comes to access hurts students and their ability to get jobs.

Rep. Anna Eshoo, who has introduced legislation to preempt laws — backed by cable broadband operators — that limit municipal broadband buildouts said the digital divide — however it is defined — is a national embarrassment and that community broadband networks are part of the solution.

But while the hearing was premised on the assertions that lack of competition and high prices were among the impediments to broadband that exacerbated a racial digital divide, Communications Subcommittee ranking member Rep. Bob Latta (R-Ohio) suggested both were off base.

“According to the most recent Communications Marketplace Report published by the FCC, the cost of the most popular plans has decreased by 20 percent, while speeds increased by 16 percent since 2015," he said. "And, as a result of more Americans upgrading their services, the average cost of the highest speed offerings have dropped by 37 percent, while simultaneously increasing speeds by 27 percent."

As to an urban as well as a rural divide, he said that broadband subscriptions in urban areas are up 21.8% over the past five years. "And despite the claims of consolidation, the number of broadband providers has increased over 25 percent from 2014 to 2019, with urban core areas seeing an increase of 30 percent."

And while Democrats are pushing for more money for broadband — including another $6 billion to make the current Emergency Broadband Benefit permanent — in addition to the billions of dollars already allocated in COVID-19 relief packages, Republicans are billing that as more radical Big Government programs from the new Biden Administration that would "reshape" entire industries.

The infrastructure package President Biden is currently promoting would inject another $100 billion into broadband subsidies, adding to Republicans' angst about the vast sums involved.

Rep. Cathy McMorris Rodgers (R-Wash.), ranking member of the full committee, also cited price decreases despite the decision by then FCC Chairman Tom Wheeler to exclude rate regulation from the Title II (common carrier reg) regime the FCC was imposing on ISPs.

But rate regulation clearly appears to be on the table for Democrats emphasizing that cost is a barrier to adoption that the government needs to address.

The majority of the witnesses agreed that cost was a big barrier.

Chris Lewis, president of Public Knowledge, said that the high cost of broadband is one of the primary reasons for the "staggering" digital divide, and said that Congress should take steps to increase competition and provide a long-term benefit.

Citing Pew Research Center data, Joi Chaney of the National Urban League said that unaffordability is the single biggest reason that Americans cite for not subscribing to broadband. "It does not help much to have lightning-fast broadband at your door if you cannot afford to subscribe to it," she said.

The Computer & Communications Industry Association has joined with almost two dozen other companies and associations to urge the Federal Trade Commission to seek full court review of a court decision concluding Qualcomm was not guilty of anticompetitive conduct.

That came in a joint letter from, among others, the Software & Information Industry Association (SIIA) and Public Knowledge.

In a big victory for the smart device essential patents holder, a three-judge panel of the Ninth Circuit Court of Appeals earlier this month reversed a district court decision and lifted a permanent, worldwide, injunction against Qualcomm. 

Computer companies almost immediately signaled they would appeal the decision.

The Federal Trade Commission had contended that Qualcomm had unlawfully monopolized the "code division multiple access ('CDMA') and premium long-term evolution ('LTE')" cellular modern chip markets, and the district court agreed. But a three-judge panel of the Ninth Circuit was unpersuaded. Writing for the majority, Judge Consuelo M. Callahan said that the district court "erred in holding that Qualcomm was under an antitrust duty to license rival chip manufacturers."

In the letter, the companies said the decision "undermines longstanding U.S. law and policy and wrongly applies competition law," and that "if it becomes precedent, this decision would endanger domestic competitiveness, as well as weaken the ability of the FTC to protect consumers through future enforcement actions.... If allowed to stand, the panel’s decision could destabilize the standards ecosystem by encouraging the abuse of market power acquired through collaborative standard-setting," they said. "The panel’s opinion could embolden foreign entities to refuse to license their standard essential patents (SEPs) to competitors in the United States."

New America's Open Technology Institute, joined by Public Knowledge, has told the FCC that broadcasters invocation of their licenses to defend allowing them to extend their broadcast signals to the edges, and perhaps beyond, of their markets is off base. 

OTI and company are big backers of using the "white spaces" spectrum between TV stations for wireless broadband, with OTI funder Microsoft heavily engaged in that effort. The more of that spectrum broadcasters get to use for TV, the less is available for wireless broadband, and there's the rub.

Related: NAB, APTS Say Unlicensed Have No Use Rights

Broadcasters argue that extending their reach through distributed transmission systems (DTS) is a public interest use of the licensed spectrum, and that unlicensed white spaces users must always give the right of way to licensed use, a point they made to the FCC this week in their own comments.

They have petitioned the FCC to allow them to use the smaller, on-channel DTS systems to improve viewers' reception of their licensed service, with any spillover beyond the edge of a market also in the public interest as broadcasters transition to the ATSC 3.0 transmission system that will allow for more targeted emergency alerts, interactivity, better pictures and sound, and potential broadcast internet offerings.

But OTI and Public Knowledge are pushing back hard, asking the FCC to deny the petition and saying it would be premature to relax limits on DTS spillover beyond a station's authorized service area. 

As to protecting broadcast spillover signals, they say the FCC rules already overprotect spillover and it should not compound the problem by giving them primary or even secondary rights. They agreed with Microsoft that the FCC should treat spillover signals as unlicensed, and thus not being able to assert interference protections over unlicensed white spaces transmissions.

Public Knowledge's message to the Senate Wednesday (May 13) will be that broadband is an essential service currently without universal access, a digital divide that must be closed in a COVID-19 reality with money prioritized to municipal broadband and co-ops and with Congress removing limitations on "overbuilding." 

Related: Groups Petition FCC for Broadband Billions During Pandemic

Public Knowledge says that any government money toward that end should be conditioned either on funding competing service in undserved areas--municipal broadband and co-ops-- or mandating that ISPs serve areas they do not currently take subsidies to build out because they are unprofitable over time. 

That is according to the testimony of senior advisor Gene Kimmelman for a hearing in the Senate Commerce Committee on broadband and COVID-19. He said Congress' must not only look at short term measure but long-term investments in expanding access to those in need in all communities, rural, suburban and urban, and by access he means to "reliable, resilient and sufficient" broadband service, and to both unserved and underserved.  

Kimmelman said government policies creating more affordable broadband should supersede the state bans or impediments to municipal broadband. 

Related: Comcast Extends Connectivity Pledge

He suggested Congress may need to allocate as much as $80 billion for a universal buildout, citing FCC estimates that that is what it will cost to deploy nationwide broadband. He said Congress should prioritize municipal broadband and co-ops when handing out the money. 

ISPs have traditionally pushed back on such efforts as government-subsidized overbuilds of their existing service that often aren't sustainable as ongoing operations once the build-out subsidies run out. 

He also said Congress should force the FCC to come up with better broadband availability data and to treat state broadband grants as complements, not replacements, for federal efforts. The FCC has said a new broadband buildout fund should be reserved for areas not already getting broadband grants from other sources. 

Related: COVID-19 Bill Should Build Lasting Broadband Legacy

And while there has been an emphasis on digital learning for K-12, Kimmelman said Congress should also pass the Connectivity for Higher Education Students in Need Act, which provides money for post-secondary schools. 

Kimmelman's other asks included a ban on data caps, reinstating FCC copper retirement rules, and requiring the FCC to collect detailed data on broadband pricing. 

Public Knowledge and New America's Open Technology Institute are squarely behind cable broadband operators' push to open up the lower 45 MHz of the 5.9 GHz band for WiFi, spectrum heretofore entirely reserved for vehicle-to-vehicle communications (V2V). 

The other 30 MHz would remain reserved for V2V in the FCC proposal.

In reply comments to the FCC, the groups said that the pandemic-driven work-at-home environment has "upped the urgency" for freeing up more spectrum for unlicensed WiFi broadband connections. 

Related: NCTA Says It's Time 5.9 GHz Drove WiFi Expansion

"The gigabit-fast WiFi channel the Commission can create by reallocating the lower portion of the virtually unused 5.9 GHz band is high priority because it can be used immediately with existing gear and provides better coverage than any 6 GHz channel for both homes and rural broadband," they said. 

Like NCTA, which also invoked pandemic urgency in its reply comments, they pushed back on auto company arguments that the spectrum is of marginal importance for boosting 5G, saying instead it can "immediately boost the capacity of fixed wireless broadband services in rural, tribal and other underserved areas with unencumbered outdoor use."  

Related: FCC Lends WISPS 5.9 GHz Spectrum for Pandemic-Driven Traffic 

And also like NCTA, they said that the 30 MHz that V2V will still get in the band is enough for its needs, particularly since they say automakers have signaled that they are "not willing to commit to deploying even the basic V2V safety messaging to more than a tiny fraction of the U.S. vehicle fleet." 

Related: NCTA to FCC: Set 5.9 GHz Free

But they also suggest there are other places V2V could move in the spectrum band. 

NCTA has long pushed for freeing up the spectrum, just as auto makers have long pushed back, saying it could impede the rollout of lifesaving connected-car systems. Car companies want the FCC to reverse course and keep all 75 for V2V, while cable ops, joined by Public Knowledge and OTI, want the FCC to put the item on the fast track to approval. 

Public Knowledge said that there needs to be "aggressive antitrust enforcement" of digital markets dominated by companies like Google, Facebook and Amazon, but that more is needed. 

In testimony for a hearing in the Senate Antitrust Subcommittee on "Competition in Digital Technology Markets: Examining Self-Preferencing by Digital Platforms," Public Knowledge senior advisor Gene Kimmelman said that there is a need for new, pro-competitive regulations, and a separate regulatory agency. 

"By establishing an Agency designed to promote market entry and expansion, Congress could expand competition that will spur innovation and benefit consumers, "Kimmelman said in prepared testimony. 

Kimmelman pointed out that the UK's Competition and Markets Authority interim reports on digital ad markets found that Google has significant market power in search and advertising--no big news there--and that Facebook has similar power over social networking. Again, not a surprise. But Kimmelman said it should "set off alarm bells that we need to assess what antitrust can do, how it needs to change, and which other policy tools are needed to generate robust competition in our exploding digital marketplace."

The Department of Justice and Federal Trade Commission are both investigating the digital marketplace with an eye toward whether antitrust enforcement has gaps when it comes to how edge providers become powerhouses in their relevant markets. 

Public Knowledge said the FCC's 25 mbps downstream definition of high-speed broadband is too low and fails to live up to the commission's forward-looking, future-proofing speed benchmark mantra. 

That came in comments from Public Knowledge on the FCC's data collection on its annual report to Congress on whether advanced telecommunications is being deployed to all Americans in a reasonable and timely fashion. 

Related: Stakeholders Fight Over Need for Speed

Currently, the FCC is defining high-speed broadband as 25 mbps downstream/3 mbps up. 

For example, in coming up with rules for a new, $20 billion rural broadband fund last week the FCC said the fund will go toward deploying high-speed broadband over 10 years to areas currently lacking fixed broadband service of at least 25/3.   

Commissioner Jessica Rosenworcel, who shares Public Knowledge's sentiments on the issue, called that a ridiculously low baseline and said 100 mbps should be "table stakes." 

In making its point, Public Knowledge highlighted quotes from the chairman including the following: "[T]he Universal Service Fund must be forward-looking and support the networks of tomorrow..." and "[the Commission] want[s] to prioritize the deployment of broadband networks that will meet the needs of tomorrow as well as today." 

Public Knowledge juxtaposed that against Google Fiber's announcement that even 100 Mbps was being left behind and it would now only be offering gigabit speeds: "[E]ven if you don’t think you need a gig now, we think you will in the very near future," the company said in announcing the sunset of 100 Mbps. 

It also cited NCTA-The Internet & Television Association data showing that one-gig service is now available to more than 80% of U.S. homes and trumpeting the trials of 10G service, citing 1 gig service in 80%-plus as proof of concept. 

The group said that given that, 25/3 is too low a mark and asked the FCC to up its aim. "We strongly encourage the Commission to increase the benchmark speed in order to portray a more modern, realistic broadband standard to at least 100 Mbps," it said. 

The Trump Administration's response to Gov. Jerry Brown's signing Sunday (Sept. 30) of California's tough new net neutrality law was swift and definitive: Justice is suing the state. But there was plenty of other reaction to the effort to re-regulate broadband access in the face of the FCC's order that such efforts were preempted.

“While not surprising, California’s net neutrality effort reaffirms its leaders’ total lack of understanding of how technology or our economy actually works, particularly its ban on paid prioritization," said FCC commissioner Michael O'Rielly, who voted to deregulate ISPs and eliminate the rules against blocking, throttling and paid prioritization. "If allowed to stand, the law would be incredibly detrimental to American consumers and the continued growth of the Internet. Thankfully, this is precisely why our nation’s founding fathers crafted a Commerce Clause to the U.S. Constitution and why I pushed so hard for the Commission’s December action to include strong preemption provisions. The DOJ’s action to challenge this overreach is both appreciated and appropriate."

Democratic commissioner Jessica Rosenworcel, who strongly opposed the elimination of the rules, saw it a lot differently, and tweeted her thanks to the governor.

[embed]https://twitter.com/JRosenworcel/status/1046554401647841281[/embed]

“The enactment of California’s net neutrality law is a huge victory for the free and open internet,” said Sen. Ed Markey (D-Mass.). “California has shown Washington and the rest of the country that the internet warriors fighting to save net neutrality will not be stopped."

The Taxpayers Protection Alliance argues that new net regs will leave taxpayers on the hook as the feds and states battle it out in court using taxpayer dollars. Then there is the less free data and reduced investment, which it says will not benefit the state's "struggling households." Paid prioritization is a way for companies to subsidize bandwidth use for a particular service, which supporters like the alliance say is consumer-friendly and opponents say is a way to favor one service over another, which isn't neutral.

"[P]assing massive and intrusive internet regulations means fewer options for consumers and internet providers," said Taxpayers Protection Alliance president David Williams. "[T]outed by the law’s backers will be few and far between. Recent data from the Wehe app shows that, even in the post-Title II world, throttling is rare and used solely for network management."

Demand Progress and Public Knowledge, some of net neutrality rules' biggest backers, were celebrating Sunday.

"This is a big day for net neutrality," said Robert Cruickshank, campaign director at Demand Progress. "Gov. Jerry Brown has just restored a free and open internet to the 40 million people of California — the world’s fifth largest economy and home to many major tech companies. This law passed with a large bipartisan majority thanks to an unprecedented outpouring of community activism the likes of which Sacramento has not seen for some time. We now urge the U.S. House of Representatives, especially members representing California, to quickly sign the discharge petition and force a vote to use the Congressional Review Act to restore net neutrality for all 50 states.”

"As is often the case, California is setting a strong example for Congress and other states on the type of net neutrality protections an overwhelming majority of Americans expect," said Public Knowledge VP Chris Lewis. 

"Only in Washington D.C. is this controversial due to the influence of broadband provider lobbyists. Even in California, that influence was strong, but an outpouring of support from consumers and small businesses helped to remind policymakers just how popular net neutrality protections are."

The Writers Guild of American West was also pleased. Content creators are concerned about distributors having too much power over the internet, which they see as an alternative to traditional video distribution channels already controlled by consolidated companies. 

Related: Amazon Slams California Privacy Law

"Once enacted, this landmark net neutrality legislation will serve as a model for states nationwide to follow," said the guild. "The Internet today is where we connect, where we organize and speak freely, and where we can choose what content we consume. With increasing attacks on our First Amendment rights and widespread corporate concentration, preserving an open Internet free from ISP interference is more important now than ever.”

U.S. Telecom, which represents ISPs, called for a 50-state legislative framework for protecting net neutrality. “We all support strong and enforceable net neutrality protections for every American – regardless of where they may live," said USTelecom president Jonathan Spalter. "But this bill is neither the way to get there, nor will it help advance the promise and potential of California’s innovation DNA," he said. "Rather than 50 states stepping in with their own conflicting open internet solutions, we need Congress to step up with a national framework for the whole internet ecosystem and resolve this issue once and for all.”

"This is a true grassroots victory," said California-based progressive group. CREDO Action. "Today, Californians won out against one of the most powerful lobbies in Sacramento. AT&T and other Big Telecom companies opposed this bill with everything they had. Thanks to hundreds of thousands of activists who would not give up the fight against all odds, Californians will have real, meaningful net neutrality protections. We thank Gov. Brown for standing with us and protecting the future of the internet and all our communities who depend on it."

The bill does not go into effect until 2020.

Critics of the Sinclair-Tribune merger continue to try to get FCC chair Ajit Pai to delay a decision on the deal until a federal appeals court rules on the UHF discount that made the combo possible.

The FCC restored the discount under Pai -- it had been eliminated under Democratic chair Tom Wheeler.

The UHF discount means a TV station group only has to count 50% of its UHF TV stations' audience toward the 39% national audience reach cap.

Pai declined when Hill Democrats asked him to delay the decision until the court rules, but Common Cause and Public Knowledge Thursday officially petitioned the commission to "hold the proceeding in abeyance," which is just legalese for "hold off," pointing out that "the Court’s consideration of the UHF Reinstatement Order has direct bearing on whether the proposed acquisition of Tribune Media Company (“Tribune”) by Sinclair Broadcast Group, Inc. (“Sinclair”) (collectively, the “Applicants”) can be consummated as currently envisioned."

They point out how difficult it would be to disassemble and reassemble the deal if the court rules the discount does not apply and cite precedent for the FCC holding its decisions in abeyance pending relevant court decisions.

Both groups want the FCC to deny the deal when it does render a decision.

Public Knowledge has called on the Federal Trade Commission to open an investigation into a The New York Times report that Facebook shared user info with device makers, allowing Amazon and Apple to access data from users who expressly denied permission to share info with third parties.

Facebook has said it was only allowing controlled access to information that allowed device makers to extend the Facebook experience to their devices.

The FTC is already investigating Facebook over Cambridge Analytica's sharing of Facebook user information.

“For months now, we’ve been talking as a nation about so-called ‘friends’ permission’ (when an app user’s contacts’ or friends’ data are delivered to the app developer without the friends’ consent)," said Allie Bohm, policy counsel at Public Knowledge. "In the wake of the Cambridge Analytica data scandal, Facebook promised that it had ended the company’s ‘friends’ permission’ feature in 2014 and argued that another Cambridge Analytica scenario simply could not occur today," said Allie Bohm, policy counsel at Public Knowledge.

“The news that Facebook, in fact, continued to share users' friends' data -- often without permission and even when the friends had expressly barred such sharing -- with 60 device makers until April of this year belies Facebook's assertion," said Bohm. "The FTC should investigate whether Facebook violated its 2011 consent decree, in which Facebook committed to obtain users' express affirmative consent before overriding their privacy preferences.

Sen Mark Warner (D-Va.), co-founder of the Senate Cybersecurity Caucus, had no immediate comment but a staffer said to expect him to weigh in at a planned cybersecurity-related event Tuesday (June 5).

Verizon is dismissing a net-neutrality group's characterizations of what the telco said were common network management tests.

Public Knowledge had jumped on reports that the wireless ISP was "throttling" video streaming services as part of a video optimization test, and had done so without warning to customers.

"Current net-neutrality rules clearly state that providers may employ reasonable network management practices to ensure that their networks and services run efficiently and work well for their customers," a Verizon spokesman said. "Video optimization is a non-discriminatory network management practice designed to ensure a high quality customer experience for all customers accessing the shared resources of our wireless network."

He said the company has let customers know about its various network practices, which are common in the industry, adding, "It's not in our interest to do anything to jeopardize the products or services that our customers rely each and every day.

Public Knowledge pointed out that the FCC staff, in the waning days of former chair Tom Wheeler's tenure, had set out guidelines for reasonable network management, including evaluating video optimization, but that new FCC chair Ajit Pai had rescinded that report.

"ISPs need to know that tests to improve their system or develop new products won’t be mistaken for by their customers for bad behavior that undermines confidence in the network," Public Knowledge senior vice president Harold Feld said. “The guidelines distinguishing ‘throttling’ from ‘reasonable network management’ developed as part of the FCC’s investigation into T-Mobile’s Binge On service provided precisely this certainty.... Before, Verizon could simply point to the FCC guidelines to reassure their customers. Today, we must look to chairman Pai to tell us whether subscribers have anything more to rely on than Verizon’s promises."

Feld said that was one reason Pai should not try to roll back the Open Internet order or its Title II underpinning.

Warning that Senate Republicans are pushing for a vote on rolling back FCC broadband privacy regs as early as Thursday (March 23), Public knowledge is trying to get supporters of the regulations to ask their Congresional members to push back.

A privacy advocate confirmed his understanding was a vote in the Senate was likely this week.

Currently, the Senate calendar of pending business scheduled for floor consideration contains the following entry at number 16 on the list: "S.J. Res. 34 Mr. Flake and others Joint resolution providing for congressional disapproval under chapter 8 of title  5, United   
States Code, of the rule submitted by the Federal Communications Commission relating to 'Protecting the Privacy of Customers of Broadband and Other Telecommunications Services."

Public Knowledge, which is a big advocate of the regs, emailed its supporters, requesting they contact both senators and House members to advocate for the rules -- there are efforts in both the Senate and House to use the Congressional Review Act to invalidate the rules -- and to tweet the following: "Contact key Senators and your reps in Congress *today* to tell them to #SaveBroadbandPrivacy: publicknowledge.org/ProtectPrivacy."

ISPs including those represented by NCTA: The Internet & Television Association, support the CRA effort, as well as having the FCC reverse the broadband privacy regs if Congress does not do it first.

They argue that the FCC has too broad a category of information that requires opt-in consent to share with third parties for marketing and other purposes and that such an approach threatens the economic model of free Web content, and creates an unlevel playing field given that edge providers do not have an opt-in requirement for their collection and sharing of Web browser or app use info.

Reaction flooded into the FCC Wednesday (March 1) on both sides of the issue after the FCC commissioners voted 2-1 to stay implementation of the FCC's new data security rules so the new FCC can review challenges to the broadband privacy framework of which those rules were a part.

“Today’s FCC action to issue a temporary stay of the data security regulation is a welcome recognition that consumers benefit most when privacy protections are consistently applied throughout the internet ecosystem,"  
said NCTA: The Internet & Television Association. "As service providers, our companies are committed to providing a quality Internet experience that protects the security of personal information, and we will continue to operate with that commitment as the FTC and FCC pursue further action to harmonize online privacy protections.”

Transpose the acronym to NTCA, and the reaction was much the same:

“We’re encouraged by this temporary stay," asid Shirley Bloomfield, CEO of NTCA-The Rural Broadband Association. "This rule in particular and broader one-sided privacy regulations more generally create tremendous burdens on one portion of the internet ecosystem even as they set false expectations for consumers about what data are actually protected online. NTCA looks forward to working with the FCC, the FTC and other stakeholders on a common-sense approach that gives consumers information and consistent protections across their online experience.”

“As ITTA said when the previous FCC issued unduly expansive, new consumer privacy rules four months ago, these sector-specific regulations disproportionally disadvantage ISPs vis-à-vis edge providers. Thus, ITTA welcomes today’s action by the FCC to stay a portion of these rules that otherwise would have gone into effect tomorrow," said Genny Morelli, president of ITTA, which represents mid-sized communications companies.

“The FCC acted today to address aspects of the FCC’s privacy rules that went beyond the well-developed FTC framework and that created unnecessary consumer confusion," said AT&T SVP of federal regulatory, Joan Marsh. "A consistent and uniform framework that covers the entire Internet ecosystem, and is enforced by one government entity, is the most effective way to protect the privacy rights of consumers.  That was the status quo before the FCC intervened and it is the right approach going forward.”

Verizon's chief privacy officer, Karen Zacharia, joined the chorus of industry praise.

“The FCC has taken an important step towards restoring a consistent and uniform framework for addressing data security and privacy standards for all online providers.  Verizon cares deeply about the security of our customers’ data and maintaining our customers’ trust is critical in each facet of our operations.  From the outset of this proceeding, we stressed the importance of creating a consistent approach to privacy and data security that gives consumers the same information and choices about the use of their data, regardless of the type of company they interact with online.”  

“Hitting the pause button on these new rules is the right thing to do,” said Alex Phillips, president of the Wireless Internet Service Providers Association. “We appreciated the FCC’s efforts to reduce the burden of these regulations for smaller providers, but compliance with the new data security rules on March 2 would crate a significant burden on our members. The FCC’s action today will afford the agency time to reconsider these rules.”

“Today’s FCC action is a sensible, pro-consumer approach which maintains the status quo for customers that has existed throughout the FCC’s proceeding," said Comcast VP Sena Fitzmaurice. "Consumers remain protected by the safeguards in place for the past two years, as well as the recently announced ISP privacy principles. This will all be achieved without subjecting consumers to regulations that are inconsistent with the FTC’s privacy framework for other companies and that exceed the statute.  The action allows the FCC sufficient time to fully analyze the pending petitions for reconsideration and to make informed decisions before any complex and unnecessary rules become effective.”

There were discouraging words as well.

“Chairman Pai has fired his opening salvo in the war on the Open Internet Order and broadband privacy protections are the first victim," said Sen. Ed Markey (D-Mass.), who earlier in the week pledged to fight any rollback of the privacy regs. "This carve-out for the broadband industry will make consumers’ information more vulnerable to breaches and unauthorized use. This suspension is just a preview of coming attractions. Chairman Pai and  Republicans in Congress want to roll back critical privacy protections and leave consumers with no defense against abusive invasions of their privacy by their broadband provider. I will fight any attempts by this anti-consumer FCC to harm or undermine the broadband privacy rules.”

“After finally gaining basic privacy protections for broadband providers last year, it’s outrageous that Chairman Pai will now remove the simple rule that internet service providers must take reasonable data security measures to protect their customers’ information," said Chris Lewis, VP at Public Knowledge. "This is not a controversial requirement.

“This elimination of basic data security rules gives ISPs a free ride while online services and other edge providers are still required to take reasonable measures to protect their customers’ information under the FTC’s framework. That is not a level playing field. It creates a huge gap in consumer protections where websites have data security requirements, while ISPs with a direct customer relationship do not."

Saying it was responding to Charter Communications "dropping" Univision, Public Knowledge weighed in Wednesday on the current carriage fight between the MSO and the programmer, one the group said impacts millions of subscriptions.

Unvision went dark to Charter customers at midnight Wednesday (Feb. 1).

Related: Computer Companies Side With Univision in Charter Carriage Fight

“The blackout of Univision on Charter Spectrum cable — which includes millions of former Time Warner Cable customers — is an unfortunate development that shows how disparities in bargaining power between programmers and distributors can leave customers in the lurch," said John Bergmayer, senior counsel at Public Knowledge.

“As we argued in recent comments to the FCC [on independent access to programming] these imbalances can distort competition and harm consumers," Bergmayer added. "We hope that Charter and Univision resolve their dispute in a way that ensures the continued vibrancy of independent programming, particularly programming that serves diverse audiences, while keeping costs low for consumers.”

Charter has said of the blackout that it still has a carriage contract with Univision and expects the programmer to honor it.

Whether and how the Federal Trade Commission moves ahead with its current examination of smart television sets -- especially their role in the ongoing privacy brouhaha -- depends on a number of factors, including industry and public response to the current call for comments, which runs through Friday, Jan. 6.

Related Video > The FTC's Fall Technology Series: Smart TVs, Part 1

The new administration's impetus to develop privacy regulations is questionable, and the controversy over the FCC's recent broadband privacy rules augment the uncertainty about federal examination of TV sets' ability to monitor viewers.

"Smart TVs are testing the privacy expectations that consumers developed in the era of traditional television," Jessica Rich, director of the FTC's Bureau of Consumer Protection, said in her opening remarks at an FTC Smart TV policy workshop on Dec. 7. She cited -- as did many subsequent speakers -- "the fundamentally different relationship" that viewers have with TV sets and computers, insisting that "it matters whether consumers think of their smart TVs as a computer or a television ... and whether they recognize that today it may be both."

"We've been watching this industry since its infancy," Rich continued, noting that privacy policies -- such as those developed during the FTC's review of TiVo's viewer data collection activities 15 years ago -should be update. She observed that the 1984 Cable Privacy Act and the 1988 Video Privacy Protection Act addressed the "video providers of the day" but that streaming technology and other delivery approaches -- including features of Comcast's Xfinity system -- are encouraging the FTC to examine the "benefits and risks of smart TV" and determine a need for legislative action.

Rich acknowledged the value to advertisers of smart TVs' ability to monitor viewing patterns. She said that the FTC recognized "the fine-grained audience measurement which can help niche video programmers get ad dollars that may not have registered with more blunt video tools."

The FTC's December workshop attracted several hundred attendees, including electronics makers, privacy advocates and digital marketing executives; it was the third session of the agency's "Fall Technology Series," which also looked at ransomware and drones.

Cable industry executives were not involved. The NCTA is "not participating in the proceeding; just observing it," an NCTA spokesman told Multichannel News.

The workshop's panel on "Consumer Understanding and the Regulatory Framework" generated a string of concerns about the relationship between viewers and their TV sets, including persistent findings  audiences don't know they are being tracked.

"Consumers don't understand the complex interplay and relations that come into play with smart TVs," said Claire Gartland, consumer protection counsel and director of the Electronic Privacy Information Center. She voiced concern that data "disclose personal lifestyle factors" that could be used, for example, by insurers to determine medical eligibility.

Dallas Harris, a policy fellow at Public Knowledge, the advocacy group, characterized the process as "learned helplessness," where consumers "feel concerned about losing control of their own information." Harris said the "FTC and FCC will have to work together" since neither has complete jurisdiction over the Cable Privacy Act.

She cited the connections between Comcast and third parties over TV and online data collection.

"There's got to be a better way to explain we're not using your PII [Personally Identifiable Information] but we still know who you are," Harris said.

Emmett O'Keefe, senior VP of advocacy at the Data and Marketing Association (formerly the Direct Marketing Association) warned attendees "not to jump to conclusions about the need for smart TV privacy regulations," adding, "These are services we've used for years and are just migrating to new devices as technology evolves."

O'Keefe, a former Cablevision Systems and Amazon lobbyist, called smart TVs a "natural extension of online services."

Uncertain Outlook

Kevin Moriarty, an attorney in the FTC's Division of Privacy and Identity Protection and an organizer of the Smart TV Workshop, told Multichannel News that the event -- with about a dozen speakers -- generated "a lot of interesting things, but that's not a test for whether we'll write a report."

He said the FTC will "continue to look at data-related issues." The agency reports only about half the time after such public events, he explained.

Despite the invitation for public and industry comments about the FTC Smart TV examination, as of Dec. 27 the docket contained only two submissions -- both from individuals and both submitted before the December workshop.

During one panel, Maria Rerecich, director of the Electronics Testing Team at Consumer Reports, said her group is working on new research standards for use with smart TVs and other forms of electronic monitoring. She expects the standards will be introduced in early 2017.

The FTC will pick up some of the smart TV privacy issues at its second annual "PrivacyCon" workshop on Jan. 12 in Washington. Several Smart TV Workshop  participants cited the growing relationship between TV/privacy factors and the broader examination of digital privacy and big data usage across multiple platforms. The FTC's initial PrivacyCon, this year, drew about 300 attendees and 1,500 webcast "virtual attendees."

In an interview after the December FTC workshop, Tim Hanlon, a long-time digital ad executive, cited the importance of Automatic Content Recognition (ACR) in the development of smart TV policies. Hanlon, who is now CEO of the Vertere Group, a Chicago boutique investment advisory and strategic consulting firm that works with electronics and media companies, attended the workshop on behalf of clients.

He later told Multichannel News that ACR's ability to recognize "content that hits the glass" is at the core of these examinations. The technology can keep track of what's on the screen "no matter the source" (cable, over-the-top, streaming or broadcast).

"Some people think that's the ultimate," Hanlon summarized. "ACR data is hugely helpful  to media, notwithstanding privacy. ...  It's a way to understand consumer behavior,  a realistic way to understand the myriad of media consumption habits today. At the very least it supplements what Nielsen tells us today."

As evidence of the importance, Hanlon cited recent deals, such as Nielsen's acquisition of Gracenote, a  provider of media and entertainment metadata, including ACR capabilities.

Online content pioneer Mark Cuban told the Senate Antitrust Subcommittee Wednesday (Dec. 7) that the AT&T-Time Warner merger is pro-consumer and will be necessary for the companies going forward to be competitive with the dominant content providers, Web content giants Amazon, Apple, Microsoft, Google and Facebook.

In his testimony at the hearing about the deal, Cuban said that while radio and TV used to be the big competition for online streaming services, now its app-driven websites and services like Snapchat, He said Facebook is in the dominant content delivery position, saying it was taking over millennials and had become the major alternative to boredom, which used to be the province of TV and radio.

Related: Stephenson: AT&T-TW Would Be Disruptive Cable Competitor

Public Knowledge president Gene Kimmelman countered that all those Web giants weren't charging $200 per month for those apps and that user-generated online content was not comparable to the expensively produced content from a Time Warner.

He also said those businesses are all dependent on the ISP gatekeepers, including AT&T.

Sen. Ed Markey (D-Mass.) will join various groups pushing new broadband privacy regs Thursday (Oct. 20) to urge the FCC to vote on them at the Oct. 27 meeting as planned.

FCC Chairman Tom Wheeler has put that vote on the agenda, but the set-top item was on the agenda for last month's meeting before being pulled at the last minute, so clearly the groups don't want a repeat of that. Thursday is the day the FCC releases the agenda for the meeting and the sunshine period prohibition on contacting the FCC decisionmakers about the privacy item begins.

The groups include Public Knowledge, the Open Technology Institute, and the Consumer Federation of America, and say the FCC "must act" to protect what they call the "growing" threat online of ISP data collection.

Related: Pallone Pushes for Broadband Privacy Vote

Wheeler's privacy proposal would make web site visits, app use histories and geolocation all sensitive data that requires ISP subs to opt in to their collection and use by third parties. ISPs point out that edge providers like Google and Facebook have no such restrictions, but Wheeler has said that IPSs have a unique window on everywhere their subs are going online.

In announcing a Thursday press conference, the groups echoed the chairman's argument, and argued that ISPs are collecting and monetizing more data on mobile use and Web histories and tracking them on the move (geolocation).

WASHINGTON — The battle over the future of video navigation devices, and the “one ring to unite them all” approach of combining traditional and online video via a single device or app, played out in the FCC’s set-top docket last week — with a definite tilt toward pausing or punting on the proposal.

The Federal Communications Commission received hundreds — perhaps thousands — of pages worth of reply comments on the proposal. The bulk of the commenters clearly appeared at least to have concerns with the plan, and many had much more than that.

Read more about the FCC's set-top box proposal.

FCC chairman Tom Wheeler has signaled the proposal, which would make set-top content and data available to third-party navigation device and app developers, needs to be enacted. But he has also said the proposal is a work in progress and its details may change.

Multichannel video programming distributors (MVPDs), though, are skeptical any changes will be made.

PROCESS COULD BE LENGTHY

The FCC’s Democratic majority has only approved a notice of proposed rulemaking, not an order. And the agency could take its time in voting on a final version, which even then won’t take hold for another year or two.

That timeline is cold comfort to MVPDs that face the prospect of giving up data and content to third parties with essentially only promises that their contracts, and their content providers’ copyrights, will be protected from hackers or pirates, or that competitors can’t monetize their content at will and without compensation.

AT&T was representative of those wielding hammers rather than red flags. The DirecTV parent company called the proposal “indefensible as a matter of law and nonsensical as a matter of public policy,” and an unnecessary, harmful and deeply flawed “scheme.”

The National Cable & Telecommunications Association raised a hammer and a flag: Specifically, it likened the set-top plan to the “broadcast flag” receiver-technology mandate approved by the FCC a decade ago. That mandate was thrown out by a federal court, which ruled that the agency’s reach did not extend past transmissions.

Foes of the set-top proposal were using supporters’ past opposition to that broadcast-flag proposal against them.

The NCTA noted that Public Knowledge, which supports the current set-top plan, opposed the broadcast flag, quoting the public-interest group’s statement at that time: “The market for delivering content digitally over new technologies is working. Consumers can watch and listen to the content they purchase anytime and anywhere they want. All of these great developments happened without government intervention,” which shows that “government intervention in the free market [in this case is] unnecessary.”

Gigi Sohn, then-head of Public Knowledge and now a top adviser to the FCC’s Wheeler, said at the time the flag would give the agency unprecedented power to dictate product design and would cause consumer confusion and cost.

After the flag was thrown out, the NCTA said, “Public Knowledge’s prediction of market successes unshackled by technical mandates came true … The current commission should not make the same mistake again.”

Public Knowledge senior staff attorney John Bergmayer told Multichannel News last week, “The broadcast flag case doesn’t really apply because FCC authority over MVPDs themselves can get to the functionality of competitive devices.”

MVPDs have enlisted, or been joined by, an unusual cross-section of interests, including unions, Congressional Democrats and diversity groups. House Republicans last week launched an effort to block the box proposal via the appropriations process, though it is unlikely to succeed.

OUTDATED TECH MANDATE

While few argue that the set-top market is competitive — 99% of boxes are leased from MVPDs — pay TV providers have described the FCC’s solution as yesterday’s technology mandate for tomorrow’s app-driven navigation marketplace, ignoring the trend away from provider-issued set-top boxes.

Now that replies are in, the next move is the FCC’s, though it is under no obligation to vote on an order.

For example, the FCC voted unanimously in December 2014 to propose classifying some over-the-top providers as MVPDs. The idea was to help promote online video as a competitor to traditional cable and satellite providers.

But after Wheeler got some major pushback, the proposal was put on the back burner and remains there.

Pay TV providers are hoping for a similar result.

The FCC's special access (business broadband) reform proposal introduced Friday (April 8) drew an early crowd Friday after FCC Chairman Tom Wheeler outlined the proposal--circulated to the other commissioners April 7) in a blog post.

"Sprint commends Chairman Wheeler for moving forward today on what we have long believed to be one of the most fundamental reforms necessary for broadband competition and 21st century innovations like advanced mobile broadband services and the Internet of Things," the company said in a statement. "High-speed, dedicated 'special access' connections are critical inputs to nearly every application and service that powers our economy and the overwhelming monopoly or duopoly control over those connections has cost our economy $150 billion in the last five years alone.

"The Chairman's recommendation today moves to end that enormous drag on our economy, ushering in a new framework supported by rules that look forward not backward, towards competition and away from market failure and artificial technology or legal distinctions."

"In a blog post today, Chairman Wheeler signaled that relief is finally on its way to the long-suffering market for high-speed, dedicated broadband connections," said COMPETIFY, whose members, in include Public Knowledge, Level 3, and INCOMPAS, which represents competitive telecom carriers. "Based on the largest and most comprehensive data collection

ever conducted on this dysfunctional market, the differential diagnosis revealed a disease of monopoly-duopoly control affecting a staggering 97% of markets across the country," the group said. "In his move towards the cure today, Chairman Wheeler proposed a comprehensive treatment that will deliver a 21st-century framework to end the scourge of this disease on all sectors of the broadband economy and drive innovations like the Internet of Things and 5G to consumers and businesses across the country."

“Chairman Wheeler today announced policy reform efforts intended to end a decade of delay and unleash a century of choice and innovation," said Broadband Coalition spokesman Jeff Sharp--the group represents competitive broadband providers. "The FCC is also taking additional steps to address anti-competitive terms and conditions that lock up customers and lock out competition. The Broadband Coalition welcomes pro-consumer action and looks forward to working with the entire FCC to promote more competition and choice for our customers."

Verizon and INCOMPAS this week offered up their own compromise on special access that tracked with the FCC proposal, and both weighed in with separate statements.

“In the more than 10 years that the FCC has been examining these business data services, the marketplace has changed dramatically," said Kathy Grillo, SVP and deputy general counsel, at Verizon. "Customers have moved past legacy services and are choosing better, faster services like Ethernet. We welcome Chairman Wheeler’s proposal and support his commitment to resolve these issues promptly and fairly." Wheeler planned to vote on the proposal at the FCC's April meeting and wanted to vote out an order this year.

"We are encouraged that he has proposed a path towards a balanced framework that would put all providers on equal footing under the same set of rules," said Grillo. "It would also rely on competition, rather than regulation, whenever possible. The framework recognizes that many different companies compete today to serve business customers and that the Commission should approach the marketplace in a technology-neutral manner.  We will work with the Commission and other stakeholders as it further develops its new approach over the coming months.”

“We have a business data revolution, and competition is the key. That is the message from Chairman Wheeler today who continues to remain steadfast in his support for competition policy," said INCOMPAS CEO Chip Pickering. “By ending anti-competitive lock-up provisions, the FCC is speeding the deployment of new, advanced networks and is providing relief to mobile and business customers hungry for more competition."

“No American business large or small, in services or manufacturing, should be held hostage to unfairly high rates for critical data transport simply because there is no competitive alternative and only crippled regulation," said Ed Black, president of the Computer & Communications Industry Association. “After a decade of delays, the FCC has the data to analyze the special access marketplace and institute reforms that will promote competition, speed deployment of faster networks, and ultimately promote innovation and economic growth," he said. "CCIA applauds Chairman Wheeler’s proposal and urges the FCC to ensure that businesses and competitors are no longer gouged by a few incumbents for accessing this crucial broadband input.  We are glad to see that the FCC will vote later this month to begin the process of bringing real change to this market.  By reforming this market, the FCC can lower costs for consumers, incentivize the deployment of next generation networks, and facilitate economic growth.”

“I thank Chairman Wheeler and the FCC for including special access on the Agenda for the Commission’s April Open Meeting," said Competitive Carriers Association President Steven Berry. "After 11 long years, it is more than time for the broken special access regime to be reformed.  Wheeler appropriately noted today the growing dependence of wireless carriers on business data services for backhaul as networks move to 5G, and CCA looks forward to working with the FCC to establish policies that support competition and expanded services for consumers.”  

Cable operators, who face potential new regulations on their business-class service, were not equally celebratory about the prospect.

while neither the National Cable & Telecommunications Association nor the American Cable Association had immediate reaction to the FCC's proposal, both had weighed in on the Verizon/INCOMPAS proposal that also suggested extending regulations to cable operators.

ACA president Matt Polka said extending regs to cable ops will "impose costs on...new entrants - many of whom are small providers that have no experience with common carrier rate regulation -- slowing their entry and their efforts to bring competition and innovative services to market.  That is clearly not in the public interest."

“The ‘principles’ suggested by Verizon — INCOMPAS seem at odds with sound economics and a policy of promoting market-driven, facilities-based competition," NCTA said. "Cable operators are new entrants in the business services market, and are investing heavily in building their own facilities to serve business customers.  They are providing precisely the type of facilities-based competition that the Chairman has praised. The FCC should reject any call [it has not] to impose new, onerous regulations on an industry that is stepping up to offer meaningful choices to business customers.  The FCC will not achieve competition if it burdens new facilities-based entrants with regulation.”

Stakeholders and interested observers didn't even wait for the FCC to finish outlining the new broadband privacy proposal--and its opt-in requirement for sharing targeted ads--to reporters before they were peppering them with comments.

Privacy groups were looking for sector-specific rules and they got them. ISPs were looking for a lighter hand, although FCC officials signaled it was the beginning of a process--it is rulemaking proposal--with plenty of time for input and alternative proposals, some of which have already been offered up.

Cable operators and other ISPs had suggested the FCC use the FTC model, which is to inforce privacy polices under its unfair and deceptive practices authority, rather than come up with a new regulatory regime. Apparently, that didn't happen. Consumer privacy activists pushed for strong rules, saying the FTC model was too weak, relying on enforcing company promises. The FCC appeared to be listening.

Out of the gate almost before the electrons had dried on the FCC fact sheet was Public Knowledge, one of those who had called for tough new rules.

“We applaud the Chairman for taking a decisive step to protect consumers," said staff attorney Meredith Rose. "That he has done so despite overwhelming industry opposition shows a deep commitment to the Commission’s role as a consumer protection agency. Laws enshrining the right of consumers to enjoy safe, secure communication date back to the very earliest days of the Postal Service; and, much as access to letter carriers was at that time--and access to the telephone network was a generation ago--access to broadband Internet today is an absolutely ecessary conduit for participation in modern society."

Tech think tank, the Information Technology and Innovation Foundation (ITIF), was not happy.

"A sector-specific privacy rulemaking for broadband providers is misguided," said telecommunications policy analyst Doug Brake. "Under the FTC’s enforcement of best practices and broadband provider policies, privacy protections are already well balanced with other values, such as cost, usability, or innovation. Moreover, a sector-specific rulemaking ignores privacy-protecting technologies like encryption and virtual networks, and the fact that all major broadband providers already allow consumers to control how their information is used."

Free State Foundation President Randolph May agreed.

"FCC Chairman Tom Wheeler appears determined to use the expansion of the FCC's power resulting from the agency's Open Internet order classification of broadband Internet providers as common carriers to adopt new, more burdensome privacy regulations applicable to ISPs," he said; "This is another case of the FCC wanting to exercise expansive regulatory authority because it can, not because it is wise."

As to the FCC's claim it was taking a flexible approach to a privacy regime it signaled was clearly needed given the customer info ISPs had access to.

“The FCC is ‘solving’ a problem entirely of its own making,” said Berin Szoka, president of TechFreedom, following the release of a fact sheet on the proposal. “There was no ‘regulatory vacuum’ over broadband privacy until the FCC ‘stole the FTC’s jurisdictional lunch money,’ using ‘strong net neutrality’ as pretext for a naked regulatory power grab....“When Wheeler claims his proposed approach will be ‘flexible,’ he really means the Chairman and Enforcement Bureau chief will retain unfettered discretion to make essentially arbitrary decisions about the future of broadband."

Senior FCC officials pointed out Thursday (March 10) that the proposal does not affect search engines and edge providers, something ISPs argued left a privacy gap.

But Gaurav Laroia, policy counsel for Free Press, another fan of strong rules, suggested there was a difference. “As with the social media sites or search engines we use, our broadband providers can monitor and misuse our most private information, Laroia said. "But while we can choose among millions of options when it comes to websites and apps, we have little to no choice when it comes to our Internet service providers. That’s why Congress was wise to require that the FCC maintain special privacy protections for customers of all common carriers. It’s crucial for the FCC to modernize these protections and apply them to broadband. By initiating this rulemaking, the FCC is taking the first step toward fulfilling its responsibility under Title II to protect the privacy of all telecommunications customers —including broadband Internet users. Chairman Wheeler and the other commissioners must establish the agency as  a strong defender of online privacy.”

Jeff Chester, executive director of the Center for Digital Democracy, was another fan.

"The proposed FCC opt-in for most consumer transactions can provide a foundation where data is under a person’s control—not a broadband company or some unknown third party," he said. "It’s a major step forward for the U.S., which has lagged behind other countries when it comes to protecting consumer privacy rights. As Americans learn more about the actual privacy-threatening practices of ISPs, we expect them to support speedy approval of new privacy safeguards by the FCC."

Allison Remsen, executive Director of Mobile Future, saw the item as clouding that future.

“While protecting privacy is a priority for the industry, the key question is how best to ensure simplicity, transparency and consistency for consumers," she said "The goal here should be to ensure consumers get the protection they deserve and expect whether they are interacting with a service regulated by the FTC or the FCC. Imposing conflicting or overly prescriptive FCC rules that stray from the FTC’s proven approach will not keep pace with innovation and will only serve to give consumers a false sense of security and fewer competitive service offerings. With the FCC’s role to regulate in this area far from certain, this proceeding adds another layer of uncertainty to America’s mobile sector.”

Senate Commerce Committee member and leading privacy advocate Edward Markey (D-Mass.) had urged the FCC to adopt strong rules and clearly thought that was what he got.

“I applaud Chairman Wheeler for releasing a proposal to ensure broadband customers have their privacy protected. Internet service providers have a duty to protect the privacy of consumers who use the company’s wired and wireless infrastructure to connect to the world," he said. "I urge the Commission to take up the proposal at its March meeting and move quickly to put these rules on the books.”  

The fact that the FCC is applying the rules to edge providers search engines and Web sites is a big issue with Fred Campbell, director of Tech Knowledge.

"Private consumer information is like any other secret. Even if you only tell a few friends you think you can trust, your secret will likely spread. And the Internet companies the FCC refuses to hold accountable for your privacy — like Google — aren't your friends," he said. "They're in the business of selling your secrets — secrets so valuable that Google is now the largest company the world has ever known. Yet the FCC plans to exempt Google and the Internet's other biggest secret-sellers from its new privacy rules. It's the equivalent of adopting a nuclear weapons ban that applies to everyone except the United States and Russia — the world’s biggest nuclear powers — and claiming the ban will keep the world safe from nuclear attack."

USTelecom was taking the FCC at its word that it was seeking input on the proposal and that it was still, at least in some respects, a work in progress.

“Consumers should be able to count on privacy rules that are evenly applied across the Internet economy. We are pleased the commission’s proposal includes the general principles emphasizing consumer choice, transparency and data security outlined in the broad industry framework presented by USTelecom and four other associations representing the vast majority of the nation’s Internet service providers," said USTelecom President Walter McCormick. "As the FCC considers proposals that will be submitted into the record in this proceeding, we believe it is important to develop an accurate picture of how consumer Internet information is used and by whom. We urge the commission to implement the general principles we have outlined in a flexible way based on the Federal Trade Commission’s longstanding and effective approach to privacy that has applied across the Internet, including to broadband providers, for years. Fragmenting current privacy protections for using the Internet won’t serve anyone well.”

The FCC will first have to collect likely at least a couple monthsworth of comments before it could vote on an order. Officials signaled they were still open to new ideas, and sought comment in the proposal on a number of issues, including whether some information needed more protection than others and exactly what customer information could be shared on an opt in vs. op out basis.

Dish and Cogent have teamed with Public Knowledge, Free Press and the New America Foundation to ask the FCC for a laundry list of broadband conditions, including network neutrality, on the proposed AT&T-DirecTV merger tied primarily to what they say would be the combined companies incentive and ability to "thwart" over-the-top video.

They point out that the deal has been pitched as allowing the combined company to offer an integrated package of broadband and video (which AT&T and DirecTV point out would make them a stronger competitor to Comcast, Time Warner Cable and other players), and say their asks are the "minimum" the FCC must do to resolve potential competitive harms if it decides to approve the deal.

They want the combined company to agree to adhere to new Title II-based open Internet rules for seven years no matter what happens in court, similar to the condition agreed to by Comcast in the NBCU deal, and which Comcast would likely have agreed to in the Time Warner Cable merger that was withdrawn.

Among the other conditions they say would be necessary on such a deal include 1) offering stand-along broadband, of speeds of at least the FCC's new 25 Mbps benchmark (or more if the FCC raises the stakes) for high speed where possible— at a set price of $29.95 for seven years; 2) agreeing not to exempt any video services from any usage-based pricing; 3) and nondiscriminatory bill and keep (free interchange of traffic) interconnections, with AT&T agreeing to upgrade its ports to avoid congestion or package loss at certain capacity thresholds.

Reports have the FCC and Justice nearing the end of their vetting process, and has always been considered an easier ask than Comcast-TWC. Some strong opponents of the Comcast-TWC deal — Sen. Al Franken (D-Minn.), for example — have declined to weigh in squarely against the AT&T-DirecTV deal, saying only they have concerns, with some offering conditions.

One thing that could please regulators looking for broadband buildouts at higher speeds is AT&T's promise to extend fiber and speeds of up to 1 Gbps to millions more customers.

US Telecom President Walter McCormick says his association supports the substance of the FCC's new open Internet rules as outlined by the FCC and President Obama, which is no blocking or throttling or paid prioritization.

He suggested in an interview on C-SPAN's Communicators series that that was not a heavy lift because his industry operates under those standards already.

But USTelecom was among the first to sue to block the FCC rules this week after the final order was published in the Federal Register.

USTelecom's problem, as it is for the National Cable & Telecommunications Association (NCTA), is how those rules were enacted--by regulating information services as a common carrier, or what McCormick calls "19th century railroad regulation."

Christopher Lewis, VP of Title II fans Public Knowledge, was also on the program and stood up for the FCC's approach. He said that after a decade of trying to come up with rules that would hold up in court, Title II was the best way to do that. "Title II was necessary to get us to strong network neutrality rules," he said.

McCormick said that said the Internet is already open and that there is no blocking and throttling and it is so because that is how the people who operate Internet services conduct business. That is why he said USTelecom has no problem with the substance of the rules, either adopted into regulations or enacted into law, he said.

McCormick said the only reason the FCC is trying to use Title II to support Internet rules is because Congress did not give it authority to regulate the Internet. "The FCC was given authority to regulate telecommunications," he said. When Congress last weighed in in the 1996 Act, he pointed out, Congress said that there should be no federal or state regulation of information services, and it defined Internet access as an information service.

"The FCC has no clear authority to regulate the Internet," he said. "We are advocating that this should be an area where Congress should act." In that USTelecom and the NCTA, which also filed suit, are in agreement.

Public Knowledge's Lewis countered that the FCC has always had authority over communications networks, and that those networks have evolved. He said the new rules help give the FCC the power to protect the openness of networks as they converge, but also said there is a "whole broader spectrum of values" that also need to protected and that Title II "gets us that conversation."

ISPs are concerned that that conversation then becomes about rate regulation, or preventing usage-based pricing, or regulating interconnection.

Lewis said the Internet had been successful and he wanted it to continue to be.

McCormick said the Internet has been as free as Uber, but now the FCC is acting like a taxicab commission for the Internet,  potentially regulating rates and terms--through a case-by-case review process--which he said would slow innovation.

McCormick said the government had a role in protecting the Open Internet, but he said that role should be defined by the U.S. Congress, which has not provided guidance in 20 years. "It is time for Congress to provide the commission with clear authority to guarantee an open Internet, but to prevent the commission from having to redefine the entire Internet..."

McCormick insisted he was optimistic that Congress could act. "There is absolute consensus on the problem," he said, and that there is not clear authority, and that the solution is for Congress to supply that clear authority."

Lewis said there is room for optimism and a dose of reality. The dose of reality, he said, is the unintended consequences of the legislation on other broadband values. He said those questions are things like preserving universal service, privacy, and others.