The Administrative Conference of the U.S. (ASUC)* has recommended federal agencies take a number of steps to address the issues of mass computer generated and falsely attributed comments.

Free State Foundation President Randolph May, who is a member of the conference, also had some advice in a separate statement. 

Both the recommendations and statement were published in the Federal Register.

Mass, duplicative and falsely attributed comments were all big issues in the FCC's last public comment docket on proposed changes to net neutrality rules, something May pointed out in his comments.

ACUS describes itself as "an independent federal agency charged with convening expert representatives from the public and private sectors to recommend improvements to administrative process and procedure."

In this case, it is recommending that agencies like the FCC, who must give members of the public the opportunity to weigh in on proposed rules for the agency's consideration, find better ways to manage what can be a flood of comments in the digital age.

"Not all agencies will encounter mass, computer-generated, or falsely attributed comments. But some agencies have confronted all three, sometimes in the same rulemaking," ACUS said, and could have been talking about the FCC net neutrality comment docket.

Among the recommendations are for agencies to 1) "welcome" the filing of mass, "identical or substantively identical," comments as a single comment over multiple signatures; and 2) "consider alternative approaches to managing the display of comments online, such as by posting only a single representative example of identical comments in the online rulemaking docket or by breaking out and posting only non-identical content in the docket," to make it easier to navigate the system.

But if an agency does do that, it should include the multiple comments in any reported total of comments received.

Also Read: FBI Investigating FCC Docket

When it comes to falsely attributed comments, ACUS suggests that agencies should give those to whom the comments have been falsely attributed a chance to have those comments anonymized or removed from the online docket. It should also note in the docket what actions it has taken.

ACUS did not say the FCC can't take into account falsely attributed comments when making a decision, but says it should note any such comments it relied on. Beyond that, it said the FCC should inform the public generally about its policies concerning posting and use of mass generated and falsely attributed comments.

In his comments, Randolph May said he hoped that ACUS would next tackle the issue of the appropriateness of curbing the kind of mass computer-generated filings that turned the net neutrality docket into a a comment "nuclear" option that deluged the FCC with 22 million comments that overwhelmed the system and "often rendered the ability to search for comments that might possibly contain relevant data and information well-nigh impossible."

May said he recognized the value of widespread participation by interested parties, but that there ought to be a way to discourage the kind of comment war that erupted in the FCC's net neutrality docket.

He also pointed out that the comment war suggested both sides thought that the volume of comment should influence the outcome. As an independent agency, the FCC is charged with making its decisions in the public interest using its expert judgment, not based on how many people are prompted or able to comment on either side.

WASHINGTON — The Free State Foundation has come out in support of secondary-market deals for C-band spectrum as a way to clear some or all of the band for 5G. 

The Federal Communications Commission is committed to freeing up spectrum in the band, used for satellite program delivery by broadcasters and cable operators, but has been collecting input on just how to do it. 

The C-Band Alliance, comprising the major satellite carriers licensed to use the C-band, has proposed a secondary market auction, rather than an FCC auction, saying that is the best and fastest way to free up the most spectrum. Free State, a Rockville, Maryland-based nonpartisan think tank promoting free market-oriented policies, generally likes the cut of that free-market jib.  

"We believe that, at the end of the day, the tradeoffs involved in such a free market-oriented approach will enhance overall consumer welfare and reduce overall societal costs by maximizing the efficient use of this valuable mid-band spectrum," wrote Free State president Randolph May and visiting fellow Gregory Vogt. 

May and Vogt said they recognize the FCC will have to work through some "nontrivial" issues related to that approach — "the amount of spectrum in the C-band to be reallocated, the legal basis for the market-based approach, and whether a portion of the sale proceeds should be contributed to the federal government" (as the C-Band Alliance has proposed). But they also said that "by maximizing overall consumer welfare and reducing overall societal costs, it comports with the public interest." That should be the FCC's policy objective, they said.  

FCC chairman Ajit Pai has also acknowledged the repurposing is, well, complicated. But he did tell Congress recently that he hopes to have something ready by the fall.  

Separately, legislation has been drafted by House Democrats that would require an FCC auction, plus a hefty contribution to the Treasury ($10 billion) to help close the rural digital divide.  

Cable operators and competitive carriers also have a proposal that would include an FCC auction, as well as possible payouts to cable and broadcasters as well as satellite companies.  

The C-band is the kind of midband spectrum — the sweet spot for 5G — that the FCC is under pressure to start clearing in greater abundance. President Donald Trump has directed his administration to come up with a new national spectrum policy plan with the goal of winning the race to 5G. 

CBA has dubbed its private auction FUEL (Flexible Use and Efficient Licensing) and says it would be a sealed-bid auction for "packages" of spectrum, private but overseen by the FCC, which could put conditions on the licenses if it chose. (The FCC has its own FAST (Facilitate America’s Superiority in 5G Technology) plan for getting spectrum into the hands of wireless broadband companies). 

The CBA auction was designed by Auctionomics, which has worked with the FCC on its spectrum auctions. 

Free State Foundation president Randolph May blogged this week that the FCC should move with dispatch to free up 5.9 GHz band and L-band spectrum for next gen communications.

The 5.9 GHz band was allocated for short-range vehicle-to-vehicle (V2V) communications, but those have been slow to pan out and are likely to be mooted by app-based systems that do not require that spectrum. 

ISPs have been pushing the FCC to at least let them share the band with auto makers, but now they and many at the FCC are talking about freeing up some or all of the band for WiFi use.

May also suggests the FCC should grant the application of Ligado Network's (formerly LightSquared) application to use "fallow" L-band spectrum for its hybrid satellite/mobile broadband network.

May said moving forward on repurposing both bands "holds the promise, if resolved in a timely manner, of making spectrum available that can be used to meet the growing demand for wireless services and for what the memorandum calls the 'burgeoning Internet of Things.'

He also pointed to President Trump's recent directive on a new spectrum strategy and said he hoped that would spur FCC action. But May also gave the FCC and its opposite number in terms of federal spectrum, the National Telecommunications & Information Administration, props for its efforts to date to free up more spectrum: "NTIA and the FCC are to be commended for their efforts during the last two years to make more spectrum
available to enable the offering of innovative new services," he said. 

Ligado says it is "awaiting FCC review of its terrestrial authorizations in L-Band and is working with equipment vendors to select 5G suppliers."Back when it was LigthSquared, a half dozen years ago, the company failed to gain FCC clearance to launch its network due to interference concerns.

FCC chair Ajit Pai offered details about why his proposed FCC Office of Economics and Data would provide "critical functions" for the agency, and he insisted on Wednesday (May 31) that he does not have "any pre-ordained position" on the paid-prioritization elements in his plan to undo the Open Internet rules.

Pai repeated his view that the agency's 2015 net-neutrality regulations "are curtailing investment in infrastructure," especially affecting "small operators [who] are prevented from getting financing."

In wide-ranging remarks at the Free State Foundation's Ninth Annual Telecom Policy Conference, Pai also affirmed his stance on the ongoing broadband privacy issue, saying, "The regulatory framework should be consistent. ... The core principles [are] in sections of the Act."

Earlier at the FSF event, Comcast senior executive vice president David Cohen revealed that Comcast reduced its "capital spend by $2.5 billion over a three year period" because of the uncertainty triggered by the current Open Internet rules. Cohen chastised groups such as FreePress and the Internet Association, which claimed that the FCC ruling has had no effect on capital investment.

"Title II was raised in every conversation" at Comcast about capital budgets, Cohen said, characterizing it as "a rate-regulation policy." He said that in some cases, the rules "delayed launch of services for 18 months."

Related: Videos From the Free State Foundation's Ninth Annual Telecom Policy Conference (via C-SPAN)

Most of the day's speakers fulfilled the anti-regulatory mission of the right-leaning FSF program's title: "New Directions for Communications Policy: Less Regulation, More Investment and Innovation." The assault continued through the final speaker, Duke University economics professor Michelle Connolly, who declared that unless Congress stops regulatory over-reach, "there is a 100% probability of someone making a regulatory grab."

Connolly warned that the current deregulatory approach at the FCC "may only last as long as Pai's chairmanship" and that future "random rules" would slow innovation.

Meredith Baker, president/CEO of CTIA: The Wireless Association, emphasized the need "to get policy right" as the FCC addresses 5G (fifth-generation) wireless services. She said her industry needs broadband policies that will support the expected $275 billion pricetag for building the new networks, including doubling the number of small cell towers for pervasive 5G delivery.

"We won the race in 4G, we need to do it in 5G too," Baker said, adding that preparing for spectrum auctions that will be involved in long-term 5G deployment "takes a lot of time and planning. We really need a long time in advance."

Pai 'Hopeful' on ISP Rules
During his on-stage conversation with FSF president Randolph May, Pai contended that there is "a lot of agreement" among Internet service providers and the FCC about how ISP practices could be governed under Title I. He said he's "hopeful that the agency can craft appropriate policies," noting that "consumers have uniform expectations" about protections they receive no matter what Internet services they use.

As for spectrum policy, Pai said, "Consumers are demanding a faster, better level of connectivity" and noted that on the local level, delivering such service should be a "cooperative effort."

May opened the session by asking Pai if he brought his "weed whacker," a reference to Pai's December speech at another FSF event where he used the metaphor to describe his deregulatory approach. May cited a recent article by MCN's John Eggerton that said the phrase had "gained cultural currency within and beyond communications circles."

Pai simply said, "It's best to move on."

Pai spent considerable time describing his efforts on process reform at the FCC, calling the initial results "significant" for reducing the burden on the Commission's staff. He said that the "front-loaded" three-week advance notice for open meeting agenda items has eliminated the "problematic" challenges of 11th-hour marathons on the night before Commission meetings.

Pai characterized his plan to establish an Office of Economics and Data within the FCC as "one of the most critical factors" on his agenda.

"I want us to be data driven, to have all Commission economists in one place ... to encourage more collaboration on big picture issues," Pai said. He pointed out that since 2012, "we've had zero economic working papers," indicating that the growing complexity of FCC decisions requires greater financial and economic analyses.

Cohen Seeks Regulatory Rationale
At the panel session entitled "Challenges and Opportunities Ahead," Comcast's Cohen acknowledged the value of FCC policy on topics such as net neutrality; but he emphasized that "the light touch until the past five years" was a better approach, insisting that the "No. 1 priority for our company and our industry" is to keep the U.S. on the leading edge.

"It is crucial to adopt policies to continue private investment," Cohen said.

"We can support net-neutrality rules but you don't have to do it under Title II," he added. "We can make a lot of progress if we focus on policies [such as] universal broadband deployment and adoption."

Citing the approach of former FCC chair Julius Genachowski (the Obama administration's first chair), Cohen said, "Strong, legally enforceable net-neutrality rules should meet a number of standards." He criticized the current rules, pointing in particular to the "general conduct" section, which he called a "catch-all" and "double-edged sword" that "perpetuates contention" and could be used to attack zero-rating rules, among other things.

"The purpose [of regulation] is to end the game of regulatory ping-pong," Cohen said.

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.

Minority whip Steve Scalise (R-La.) has joined the lineup of policymakers at the Free State Foundation's annual telecom conference March 19 at the National Press Club in Washington.

He will participate in the Q&A with Free State Foundation president Randolph May.

Already on the program are keynoter Greg Walden (R-Ore.), chairman of the House Communications Subcommittee, Senate Communications Subcommittee chairman Deb Fischer (R-Neb.) and Federal Communications Commission commissioners Mignon Clyburn, Ajit Pai and Michael O'Rielly.

Issues up for discussion include net neutrality, a Communications Act rewrite, pre-emption of municipal broadband laws and FCC reform.