As promised, Senate Republicans have introduced a data privacy bill targeted at cell phone data collection in the age of pandemic--when user data, including location, could be key to contract tracing to help combat the COVID-19 virus. But there were no Democrats identified as supporting the bill, which was not an encouraging sign of the bill's prospects beyond the Republican-controlled Senate, at least in its current form. A draft was circulated last month. 

The only apparent difference in the summaries of the bill's key points was the addition of "device" information to the data being protected.

COVID-19 Consumer Data Protection Act would provide more transparency, choice and control over users' personal health, device, geolocation, and proximity data, all key to contact tracing, as well as hold businesses "accountable" to consumers if they use that data to fight the virus, according to the backers, though at least one advocacy group sees it much differently. 

There have been bipartisan concerns that contact-tracing technology employed by companies including Apple and Google could wind up producing a surveillance state or put consumer data at risk for misuse or follow-on use by third parties. 

Related: Sen. Markey Pushes Back on White House Pandemic Database 

Introducing the bill were top Republicans on key committees: Sens. Roger Wicker (R-Miss.), chairman of the Senate Commerce Committee; John Thune (R-S.D.) chairman of the Communications Subcommittee; Deb Fischer (R-Neb.), chairman of the Transportation and Safety Subcommittee; Jerry Moran (R-Kan.), chairman of the Manufacturing, Trade, and Consumer Protection Subcommittee; and Marsha Blackburn (R-Tenn.). 

Related: Senators Seek Google Assurances on COVID-19-Related Aggregation 

“During the COVID-19 pandemic, many tech companies are using data to track the spread and help keep Americans healthy,” said Fischer. “I helped introduce this legislation which will allow companies to continue innovating while providing Americans with more transparency and safeguards for how their personal data are managed.” 

The bill would: 

• "Require companies under the jurisdiction of the Federal Trade Commission to obtain affirmative express consent from individuals to collect, process, or transfer their personal health, device, geolocation, or proximity information for the purposes of tracking the spread of COVID-19. The "device" category is an addition from the draft summary of the bill.
• "Direct companies to disclose to consumers at the point of collection how their data will be handled, to whom it will be transferred, and how long it will be retained.
• "Establish clear definitions about what constitutes aggregate and de-identified data to ensure companies adopt certain technical and legal safeguards to protect consumer data from being re-identified. 
• "Require companies to allow individuals to opt out of the collection, processing, or transfer of their personal health, geolocation, or proximity information. 
• "Direct companies to provide transparency reports to the public describing their data collection activities related to COVID-19. 
• "Establish data minimization and data security requirements for any personally identifiable information collected by a covered entity. 
• "Require companies to delete or de-identify all personally identifiable information when it is no longer being used for the COVID-19 public health emergency. 
• "Require companies to delete or de-identify all personally identifiable information when it is no longer being used for the COVID-19 public health emergency. 
• "Authorize state attorneys general to enforce the Act." 

“This is an anti-privacy bill, not a privacy bill," said Fight for the Future Executive Director Evan Greer. "Congress has been dragging its feet for years on enacting meaningful federal data privacy legislation. This bill guts the FCC’s strong privacy limits on mobile carriers, while utterly failing to give the FTC the ability to respond to abuses." 

WASHINGTON — Could a return to Title II-based internet regulations give the current president even more power over the commonwealth?

That was one of several possibilities invoked last week as both sides of the debate over the Federal Communications Commission’s network neutrality rule rollback talked about finding a way to protect both the openness of the Web, and the business model that drives investment in the networks that carry what has become an internet of everything.

Related: Why Do Democrats Want to Let Trump Violate Net Neutrality?

But that common ground will be hard to reclaim from the scorched-earth rhetoric that has characterized the fight.

Both of those sides came together last week on Capitol Hill, in a discussion hosted by the Congressional Internet Caucus, to talk about possible approaches. Try as they might, though, the conversation proved to be as much about what still separates them.

Both sides can agree on rules preventing blocking and throttling of content, even restoring them to the FCC. However, Matthew Brill, a partner at Latham & Watkins — whose clients on the net neutrality front have included NCTA-The Internet & Television Association — said the new rules, with the Federal Trade Commission overseeing broadband practices and the FCC enforcing internet service provider transparency, should be sufficient.

In any event, Brill said, the toggling back and forth between net neutrality regimes as the political control changes is not the way to go.

While Brill and representatives of public interest non-profit Public Knowledge and INCOMPAS, whose members include major edge providers, said they were willing to talk, Public Knowledge continues to push for a Congressional Review Act resolution to nullify the FCC’s December rollback of the rules, something Brill said is not helpful.

Altered States
Public Knowledge and others also continue to back state efforts to reverse the FCC decision through their own neutrality bills or executive orders mandating neutrality in ISP contracts with governors, an effort that is gaining traction in blue states also taking aim at the rule rollback through lawsuits. Brill, by contrast, said those efforts are not constructive.

Net neutrality activists want the FCC to be able to regulate broadband rates if said rates are a barrier to deployment. Chris Lewis, at Public Knowledge, said the FCC “should be empowered to look at pricing and if that is hurting broadband access.” ISPs say the FCC should not be in the business of regulating broadband rates, either through proscriptive rules or through complaint-driven rate regulation.

Currently there are two legislative efforts prompted by the rule rollback: the Congressional Review Act measure and a Republican bill, courtesy of Rep. Marsha Blackburn (R-Tenn.), who chairs the subcommittee on Communications and the Internet, that would prevent blocking and throttling, but not paid prioritization.

But again, those appear to be points of contention rather than possibilities for agreement. ISPs strongly oppose the CRA, while net neutrality activists are working feverishly to collect enough votes to pass it, which is the longest of long shots.

And while ISPs like the looks of the Blackburn bill, activists have blasted it.

Berin Szoka of think tank TechFreedom attempted to unite both sides last week against a return of Title II by invoking the fear of a too-powerful Donald Trump.

He said that a return to common carrier-based net-neutrality regulation, as the CRA would do, allows the president, rather than ISPs, to control access to the internet if he chose to exercise his war powers available on a rolling basis due to the never-ending war against terror.

The suggestion that it might take such a threat to get both sides to agree on legislation indicates that talk on the Hill and elsewhere of a bipartisan resolution to the network neutrality debate remains mostly that.

The dueling broadband bill introductions from Democrats and Republicans this week continued Friday with more than a half-dozen offerings from both sides.

On the Democrats' side, Reps. Doris Matsui (D-Calif.) and Susan Brooks (R-Ind.) introduced H.R. 4847, the Broadband Deployment Streamlining Act, which aims to speed deployment by "reforming and improving" the application process for building out broadband using public lands. President Donald Trump last week had signed two executive orders to do just that.

The Democratic bill:

 1) "Requires procedures to be established for tracking applications, monitoring the time between receipt and final decision, and reasons for denial;

 2) "Bases application fees that applicants pay to the designated federal agency on the actual costs of review and maintenance of that application;

3) "Requires that executive agencies act on siting requests with 270 days; and

 4) "Preserves agency obligations to follow applicable environmental laws."

The bill would also mandate a Government Accountability Office report on the National Broadband Map, a government effort to identify where broadband is accessible and where it isn't.

Rep. Anna Eshoo (D-Calif.) and David McKinley (R-W. Va.) offered up their second broadband bill of the week, the Climb Once Act, which would, they said, ensure that no federal laws get in the way of local "climb once" policies that "allow for a list of pre-approved contractors that pole owners agree on to handle make-ready work, eliminating the need for multiple contractors to perform the work."

The pair introduced a "Dig Once" bill Jan. 17.

Not to be outdone, Republicans followed with more of their promised broadband bill blitz.

Communications Subcommittee chair Marsha Blackburn unveiled five bills Friday, the third tranche of its series of bills, dealing mostly with historic preservation and environmental reviews.

Related: Cable Ops Push for Codified Overlashing Rules

H.R. 4832, “Restoring Economic Strength and Telecommunications Operations by Releasing Expected Dollars (RESTORED) Act,”  would allow companies eligible for Universal Service Fund high-cost money to get up to a 7-month advance on the funds in disaster areas.

H.R. 4845, “Connecting Communities Post Disasters Act,” would give facilities in disaster areas a five-year exemption from environmental and historic reviews to allow them to replace/improve their facilities.

H.R. 4842, “The Streamlining Permitting to Enable Efficient Deployment of Broadband Infrastructure,” would exempt environmental and historic preservation reviews on federal property if another facility on the same property has already been granted one; would exempt other such reviews in some other circumstances.

Related: FCC Takes 'Historic' Pole Position

H.R. 4847, “Broadband Deployment Streamlining Act,” would "direct the Secretaries of Interior and Agriculture to issue regulations within one year to streamline applications processes to locate or modify communications facilities on public lands."; "amend Section 6409 of the Middle Class Tax Relief and Job Creation Act to institute a firm shot clock by which applications must be granted or denied (an application is deemed granted if the agency fails to grant or deny within the allotted time)" and "would require a GAO report evaluating accuracy and reliability of data collected for the National Broadband Map" (mirroring the Democratic bill).

H.Res. 701 would express "the sense of the House" that environmental and historic reviews for broadband buildouts "should be narrowly tailored and proportional to lands that are physically impacted by the deployment of such facilities."

In the wake of the Trump Administration declaration of rural broadband buildouts as a key infrastructure goal, the House Communications Subcommittee leadership has unveiled their legislative priorities for broadband buildouts, and targeting "unserved" areas is chief among them.

Subcommittee chair Marsha Blackburn (R-Tenn.), who was a Trump transition team member and who was in attendance for the President's rural broadband announcement at a speech in Nashville, released a set of four resolutions that she signaled represent the groundwork for the larger legislative lift on broadband infrastructure.

In addition to directing funding to currently unserved areas, rather than, say, underserved, which raises the specter of overbuilding existing plant based on however "underserved is defined, the resolutions are to "ensure federal policy treats all broadband providers in a technology-neutral manner, applying consistent rules that support innovation"; to "ensure wireless broadband infrastructure funding preference for states that support small cell siting reform, helping ease the permitting process in communities across the country; and to "ensure Federal, state, and local tax, regulatory, permitting, and other requirements are coordinated and reconciled to maximize the benefits of broadband investment."

The President this week signed two executive orders that make it easier to site communications equipment on federal lands.

“Members of the House Energy & Commerce Committee today sent a clear message that broadband is central to our nation’s infrastructure," said USTelecom CEO Jonathan Spalter. "These 'broadband first' resolutions will pave the way to efficient and effective broadband deployment – the backbone of all communications from ground to cloud to 5G and beyond. This is great news for consumers and our global competitiveness.”

"I commend the Subcommittee on Communications and Technology, chaired by Representative Marsha Blackburn, for its leadership in promoting broadband infrastructure deployment," said FCC Commissioner Brendan Carr, who has put his vote where his sentiments are in FCC efforts to ease tower citings and promote broadband buildouts. "As the four resolutions introduced today by Vice Chairman Leonard Lance, Chairman Bob Latta, Representative Richard Hudson, and Representative Gus Bilirakis recognize, broadband is key to job creation and economic growth. So I applaud Chairman Blackburn and the Subcommittee for their continued focus on removing barriers to broadband buildout. These efforts will help ensure that all Americans—regardless of where they live—can benefit from next-generation technologies."

WASHINGTON — If opponents of the recent rollback of network neutrality rules were hoping for Congress to step in with legislation to restore the previous Internet regulations, here’s the big, open secret on Capitol Hill: It’s DOA.

There was much talk immediately following the Federal Communications Commission’s Dec. 14 vote to undo the 2015 rules, which classified broadband internet service as a common carrier under Title II of the Communications Act, about finding compromise legislation to fill the regulatory void. The move by FCC chair Ajit Pai reclassified internet service providers, leaving them unregulated by Title II provisions.

But talk of passing strict new Internet rules will remain talk — and perhaps not much of that — rather than legislative action, according to one highly placed Democratic staffer on Capitol Hill, reflecting the general sentiment on that side of the aisle.

Related:Markey Says GOP's Sen. Collins Joins CRA Effort| Markey Gets 40 Net Neutrality Rollback CRA Cosponsors

The new net neutrality-lite approach adopted by the Republicans last month in a bitterly divided vote won’t go into effect until early this year.

Little Bipartisan Will
Theoretically, at least, Congress has time to act, but scant bipartisan political will exists — despite both sides professing the need for some legislative certainty.

Rep. Marsha Blackburn (R-Tenn.) has unveiled a bill that would legislate prohibitions on blocking and throttling the Internet. That was the easy lift since Republicans, Democrats and ISPs all agree those practices should be off limits, and as all of the major internet service providers represented by NCTA-The Internet & Television Association and USTelecom have pledged to put that ban in writing, enforceable by the newly empowered, or at least authorized, Federal Trade Commission. There is some dispute over how much power that agency has, though, given its lack of rulemaking authority.

Related: Blackburn Introduces Open Internet Preservation Act

That was likely on purpose, with Republicans starting with what they thought both sides could agree on. A bill is not out of the question, particularly if edge providers such as Facebook and Google might be next up in the regulatory sights of a Congress increasingly concerned about their power over online content.

But one Democratic staffer familiar with the bill’s introduction suggested it was a nonstarter with their side — from the start.

Republicans involved with the bill never sent the measure to Democrats, even after it was released to the press, the source said. Congressional Democrats learned about it from a press release sent by an advocacy group reacting to it.

Related: Net Neutrality Group Targets Congress

Republicans did talk with the other side during the process of coming up with the bill, at least according to Republican public statements from last August, and the measure was similar to a 2015 incarnation both sides were familiar with.

Rep. Greg Walden (R-Ore.), chair of the House Energy & Commerce Committee, said the bill was meant to “kick off” the conversation, but also said Democrats should rethink their “litigate not legislate” strategy.

Democrats see the bill, or at least are positioning it, as more like another partisan shot across the bow.

Dems See Poison Pills
The Blackburn version of new Internet regulations includes what Dems see as poison pills, including pre-empting states from adopting their own net neutrality regulations and confining the FCC’s net neutrality regulatory authority to just what the bill covers and nothing more. Though, again, that was said to be an effort by Republicans at coming up with a narrow bill that would produce the vaunted certainty obviously lacking in an issue that has been kicking around the courts, Congress and the FCC for more than a decade.

“This was a play to say, ‘We [Republicans] don’t hate net neutrality,’ ” the Democratic source countered, and then outlined why it is a nonstarter with their side.

Related: Net Neutrality by the Numbers

The FCC already had net neutrality rules that it could enforce, and that the Democrats backed, and they skeptically predicted anything Congress does will be less than that. Title II remains a powerful draw for Democrats, who will not give it up without a fight.

Moreover, Congress can restore network neutrality rules, but the key to their effectiveness is in enforcement.

Eyes on the Midterms
Democrats may not be in any hurry to negotiate, given what they see as brightening chances to regain the House in the 2018 elections and restore Title II via legislation. They may also want to let an effort to nullify the rules rollback through the Congressional Review Act play out first.

Saving net neutrality by restoring the FCC’s 2015 rules is an issue that plays well with millennials back in the home districts of Democrats. Younger voters have been showing up to rallies and events geared around the FCC net neutrality vote, the source said.

Reaction was pouring in from Capitol Hill Tuesday (Nov. 20) after FCC chair Ajit Pai circulated an order rolling back the 2015 Open Internet order -- a proposal scheduled for a Dec. 14 vote -- including word from powerful Republicans that they support Congress stepping in to ensure permanent net-neutrality rules.

Related: Pai Circulates Order Unwinding Title II Classification of ISPs

Energy & Commerce Committee chair Greg Walden (R-Ore.) and Communications Subcommittee chair Marsha Blackburn (R-Tenn.) praised Pai's rollback of common-carrier-based internet regulations. (Blackburn helped lead the successful congressional effort to nullify the FCC's rules on broadband privacy).

Related: Quinn Says AT&T Is Big Backer of Blackburn Privacy Bill

“Today’s announcement demonstrates that the FCC, under the leadership of Ajit Pai, understands the importance of making sure the internet continues to flourish under a light-touch regulatory regime," they said in a joint statement. "The past two years of heavy-handed regulation will be only a blip on the screen of a decades-long bipartisan equilibrium that successfully supported innovation and growth."

They pledged to work for legislation establishing net-neutrality rules. "We remain committed to ensuring clear, permanent net-neutrality rules through the legislative process, encouraging investment in broadband buildout, and closing the digital divide across America,” they said.

“I commend the current FCC for its commitment to a free and open Internet with a lighter regulatory touch, and today’s announcement is a major step in that pursuit," said Rep. Bob Latta (R-Ohio). "The Internet has been a powerful tool for private enterprise and economic growth since its inception thanks to a relatively hands-off government approach. I’m a staunch believer in net neutrality principles such as no blocking, no throttling, and no paid prioritization. However, top-down regulation of the Internet is not the best way to ensure user access to content — in fact, it’s counterproductive."

He, too, said Congress should be the ultimate arbiter. "Ultimately, the most effective path to providing certainty for consumers, providers, and businesses that rely on the Internet is to find common ground in Congress and pass legislation.

Related: House Antitrust Tackles Network Neutrality

That effort has born little fruit so far given that Democrats wanted that legislation to be based in Title II, while that was a nonstarter for Republicans.

In announcing Tuesday that the order had been circulated, Pai signaled that the FCC would stop micromanaging the 'net and "simply require Internet service providers to be transparent about their practices," a deregulatory mantra that had Democrats booing and Republicans cheering.

Democrats saw it quite differently.

Calling it an effort to "gut" the rules, Sen. Ed Markey (D-Mass.) one of the Hill's biggest Title II fans, promised a "firestorm" of opposition.

"Startups on the verge of discovering a new job-creating innovation could be shut down in favor of bigger companies willing to pay more to rig the market," Markey said. "All because Chairman Pai is listening to a few broadband barons that want to serve as all powerful gatekeepers to the internet despite millions of Americans writing into the Commission in defense of net neutrality. Consumers, start-ups, and innovation will lose. Internet service providers will win. I urge all of those who rely on a free and open internet – whether it’s for commerce, education, healthcare, or entertainment – to join me in creating a firestorm of opposition to this assault on net neutrality.”

“Net neutrality is essential for protecting free speech online and allowing small businesses to flourish, and that’s why the American people spoke out by the millions in defense of these important protections," said Rep. Frank Pallone (D-N.J.), ranking member of the House Energy & Commerce Committee, which oversees the FCC. "In making this announcement today, the Trump FCC is choosing to ignore the public and push forward with a harmful plan to kill net neutrality and destroy the internet as we know it. But the fight is not over—we will keep fighting to keep net neutrality and protect the free and open internet.”

WASHINGTON — Internet service providers that have been sparring with congressional Democrats over an opt-in broadband privacy regime now have a Republican to contend with. But the consequences of a new bill backed by House Communications Subcommittee chair Marsha Blackburn (R-Tenn.) would have a bigger impact on edge providers and advertisers.

In trying to prevent the FCC from applying that opt-in to ISPs, one of the bigger arguments providers have made is that those opt-in rules didn’t apply both to them and to edge providers such as Facebook or Google, which have a dominant share of the targeted advertising that relies on such data.

In the Balancing the Rights of Web Surfers Equally and Responsibly [BROWSER] Act, Blackburn has proposed to change that, retaining the FCC’s extension of “sensitive” information that requires opt-in consent for sharing beyond financial and health and children’s data to include web browsing, while moving enforcement of all broadband privacy under the Federal Trade Commission.

Related: Rep. Blackburn Defends Broadband Privacy Bill

ISPs have been quiet on the bill — NCTA-The Internet & Television Association said it was still vetting the measure at press time and would have no comment — but groups representing advertisers and edge providers certainly have not been.

The Association of National Advertisers is no fan of Blackburn’s BROWSER Act, sponsored by the Republican House Communications Subcommittee.

Among other things, the ANA says Blackburn’s bill repeats the “fatal mistake” of overbroad classification of sensitive information (it does not say “of web browsing,” which they feel is key), and what the industry trade group calls a “vague and confusing” opt-in regime that would “bombard consumers with annoying consent notices.”

If FCC chair Ajit Pai succeeds in rolling back classification of ISPs as common carriers under Title II of the Communications Act, the Federal Trade Commission will again have enforcement authority over both edge providers and ISPs. Blackburn’s bill could beat the rollback to the punch, designating the FTC as the sole enforcer of online privacy.

Edge providers don’t want either the FCC or the FTC to start requiring them to get opt-in permission to share and monetize browser histories.

The Internet Association, whose largest members are Google, Amazon and Facebook, said the bill “has the potential to upend the consumer experience online and stifle innovation.”

Blackburn has fired back at her critics. “I thought the Internet Association would be more supportive of protecting consumers,” she told The Hill. Edge providers have, however, made clear their opposition to extending regulations to their neck of the ’net, arguing that ISPs have a unique gatekeeper position.

“I think if you ask the American people if they’re OK with having less control over their online privacy so companies can sell their data, they’d say no,” she said.

The House Communications Subcommittee held a hearing on wireless spectrum and the economy, but it had to wait for Democrats and Republicans to air out their grievances over the passage last week of the Congressional Review Act (CRA) resolution rolling back FCC broadband privacy regs.

The back-and-forth was particularly heated and even personal, illustrating the widening political divide on Capitol Hill.

Ranking member Mike Doyle (D-Pa.) and Frank Pallone (D-N.J.), ranking member of the parent Energy & Commerce Committee, used their opening statements to weigh into Republicans for "ramming" the CRA down the public's throat," as Doyle put it.

Doyle also called out CTIA (though not by name) -- a CTIA witness, the only association witness, was at the table -- for supporting the CRA, saying the industry association had acted in a "selfish and irresponsible way." He said he expected more from the organization and its members, and the American people did as well. Saying the CTIA's support for the CRA meant that there were no privacy protections, Doyle said, "Believe me, my constituents and your customers are not happy about this.

Doyle called the CRA a draconian instrument the Republicans had used to smash the FCC rules.

House Energy & Commerce Committee chair Greg Walden (R-Ore.) shot back that the issue had been "horribly spun" and that the FCC created the problem when it reclassified ISPs under Title II and took over regulation of broadband privacy from the Federal Trade Commission. Walden noted that the rules did not apply to data collection and sharing by Google (which has 85% market share of search, he said) or Facebook.

"How do you think they make their money?" he asked.

He also pointed out that the FCC rules had never been in effect. He said those companies had never been under the FCC rules "period," then repeated "period" even louder to put an exclamation point on the period. "That's where the searches are," he said, suggesting Doyle needed a little educating -- a comment that drew some groans.

Rep. John Shimkus (R-Ill.) also defended the CRA rollback, saying that the reality was Congress made a great decision in rolling back the regs.

Pallone put the move in the context of other Republican/Trump Administration efforts on healthcare, energy and the environment. He said no one believes the Republican "mumbo jumbo" about still protecting privacy or clean air or affordable health care.

"Everyone understands when you go home that the Republicans are trying to do harm to every health, safety, privacy and environmental protection that exists in the federal government," Pallone said. "And that is what they are all about."

He said that through executive action and CRAs like the one on privacy, the Republicans are trying to unilaterally "tear down everything the American people care about."

Subcommittee chair Marsha Blackburn (R-Tenn.) emphasized as she moved to witness testimony that it was going to be a hearing about "spectrum."

Rep. Anna Eshoo (D-Calif.), former ranking member of the subcommittee, brought the issue back to privacy during her questioning. She asked CTIA witness Scott Bergman whether the FTC could come up with new privacy rules given that they lack rulemaking authority.

Bergman said his companies are commited to their subs' privacy but that they also follow and support the FCC's and FTC's enforcement authority over privacy.

Eshoo said that there is a hue and cry from constituents and that his companies had damaged their brand with support of the CRA.

Bergman said his companies depend on the trust of their customers. Eshoo said if that is the case they had "more than chipped away at that. I think this is going to haunt the companies."

Rep. Jerry McNerney (D-Calif.) also talked privacy, saying he was worred that promises are all consumers have left to protect their privacy.

He asked Berman whether companies could now change those policies if they wanted to.

Bergman would only say that their policies were the same today as they were before. He said the FCC still has authority under sec. 222 of Title II to enforce broadband privacy and that his members were working with the relevant agencies on a path to make sure that the FTC has a consIstent and clear framework across the entire ecosystem.

Republicans are going after the FCC's broadband privacy rules with both barrels.

Marsha Blackburn (R-Tenn.), chair of the House Communications Subcommittee, has introduced her version of a Congressional Review Act resolution invalidating the FCC's Oct. 27 order. That follows a similar CRA resolution introduced this week by Sen, Jeff Flake of Arizona.

The CRA allows a simple majority of Congress members to invalidate recent regulations, in this case rules approved by the FCC back in October.

Like the Flake resolution, H.J.Res. 86 "provides 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."

“The FCC’s decision last October to unilaterally swipe jurisdiction from the FTC by creating its own privacy rules for ISPs was troubling," Blackburn said Thursday (March 9). "The FTC has been our government’s sole online privacy regulator for over twenty years.  A dual regulatory approach will only serve to create confusion within the Internet eco-system and harm consumers.  This is a bi-partisan issue, as Democrats have also voiced concerns about the potential for consumer harm resulting from the FCC’s overreach.  We look forward to rolling back these anti-consumer rules and returning jurisdiction to the FTC.”   

The news did not sit well with Sen. Ed Markey (D-Mass.), who supports the rules and came out strongly against both the Flake CRA move and the Republican majority FCC's decision to roll back implementation of the data security portion last week and review all the rules, with an eye toward repealing and either replacing or turning the authority over broadband privacy back to the Federal Trade Commission by reversing the reclassification of ISPs as Title II common carriers in the Open Internet order.

“The Republican’s assault on the Open Internet Order continues, and the FCC’s broadband privacy rules are their next target,” said Markey. “Regrettably, Republicans fail to accept what we all know to be true and what the courts have already affirmed: broadband internet is an essential telecommunications service, just like telephone service. And just as phone companies cannot sell information about Americans’ phone calls, an internet service provider should not be allowed to sell sensitive consumer information without affirmative consent. I strongly oppose these resolutions, and will fight to protect the FCC’s essential broadband privacy rules.”

But one difference between phone calls and Web browsing is that the information gleaned and shared from that activity is that helps keep Web content free, and an opt-in regime could threaten that business model something ISPs have been arguing as they push the FCC and Congress to roll back the rules.

House Energy & Commerce Committee chairman Greg Walden (R-Ore.) outlined a broad agenda for the committee and its Communications Subcommittee on Tuesday (Feb. 14), with items ranging from legislative action on Title II to a comprehensive examination of FCC and NTIA "reauthorization" to accelerated rural broadband deployment to increased oversight of federal cybersecurity initiatives.

At the monthly luncheon of the Media Institute, Walden (pictured) endorsed the "process reforms" that FCC chairman Ajit Pai (who was in the audience) has already introduced. Walden complimented Pai for successfully doing administratively "what Congress has been trying to do legislatively." He singled out Pai's decisions to revoke recent regulations over broadcast joint-sales and shared-service agreements and to rescind certain requirements for noncommercial TV ownership reports.

"We want this business to be vibrant and competitive," Walden said, noting that he expects to "see additional deregulation."

"We don't need antiquated rules like cross-ownership," Walden said.

As for the Open Internet rules, the Commerce chairman said, "Republicans are open to legislative solutions" and that net-neutrality decisions "should be done legislatively." But he acknowledged "it will take time" to develop new procedures, saying, "We have draft legislation" in the works.  

Walden did not respond to queries about a timetable for the congressional review. He chastised the previous FCC leadership's "over-reach" in the Open Internet process.

Although he glazed over his agenda for what he called a long-overdue comprehensive reauthorization of both the Federal Communications Commission and the National Telecommunications and Information Administration, Walden said he believes the FCC should be restored to its five-member level (currently the agency has only three Commissioners).

"The Commission should be filled out, the sooner the better," Walden insisted.

On the broader issue of a comprehensive update to the 1996 Telecommunications Act, Walden said he "resists the notion that it will be one bill," preferring to "look at this in modules" affecting various industries, he said, emphasizing that Communications Subcommittee chair Marsha Blackburn (R-Tenn.) will lead the group's decisions on a rewrite.

"If the marketplace can handle [conditions], it should," Walden said. 

Walden called deployment of rural broadband a top priority on the Committee's communications agenda, pulling in examples of the need for wireless broadband. In particular, he emphasized the need to "lower the cost of broadband development."

He told a homespun tale of the need for such capabilities coming up this summer, on Aug. 27: the date of a total solar eclipse where a prime viewing area will be in small towns within his central Oregon district. Walden said there is almost no wireless capability for a stretch of nearly 30 miles around the eclipse epicenter. Then he wondered aloud, looking directly at Pai,  if he "only knew someone who had administrative authority to require coverage in that region." (At that point, Pai jokingly stood up and started to walk away from his table, to the gleeful laughter of the audience.)

Regarding cybersecurity, Walden indicated that the Commerce Committee will examine the ways in which various agencies monitor activities within their sectors to avoid duplication. Citing the threats to power utilities as well as commercial and communications facilities, Walden vowed to work with industry and to "incentivize" the entire ecosystem to prepare for possible digital assaults.

"We don't need every agency to grab a piece of cybersecurity," he added.  "The goals should be how to share information and avoid cyberattacks."

New FCC chairman Ajit Pai is a long and strong opponent of FCC chairman Tom Wheeler's proposal to revamp the set-top box marketplace to boost online video competition, and would be unlikely to exhume that push, but the Republican leadership of the House Energy & Commerce Committee want him to put a nail in the coffin.

In a letter to Pai Wednesday (Jan. 25), Energy and Commerce Committee chairman Greg Walden (R-Ore.), Communications Subcommittee chairman Marsha Blackburn (R-Tenn.), Energy and Commerce Committee vice chairman Joe Barton (R-Tex.), and every Republican member of the Communications Subcommittee asked him to officially close the docket on the proceeding.

"The regulatory overhang of the set-top box regulation has cast a shadow over investment and innovation in traditional video programming delivery," they said. "[w]e urge you to close the proceeding and permit the industry to innovate and serve consumers free from the restrictions of a government-chosen platform."

They said it would generally be a good idea to close all inactive dockets. and that in this particular case it should be closed as an "unnecessary regulatory threat to content creation and distribution industries" and to signal to video program distributors "that they can bring technological advances to set-top boxes and video delivery without fear that the Commission overturn them by regulation."

FCC chairman Tom Wheeler proposed requiring MVPDs to make data and program info available to third parties, first devices, then apps, to allow a better co-mingling of traditional and online video. But there was pushback from Republicans and Democrats over issues of copyright protection and the FCC's role in approving an app-based approach to accessing the MVPD content, so Wheeler could not get three votes for the item before time ran out on his tenure.

Chairman Pai’s office said it was reviewing the letter.

New House Energy & Commerce Committee Chairman Greg Walden (R-Ore.) and new Communications Subcommittee Chair Marsha Blackburn (R-Tenn.) are in agreement that FCC Chairman Tom Wheeler should have kept the just-released zero rating report to himself.

It was actually members of Congress--Senate Democrats--who urged him to look into the sponsored data plans. The Wireless Bureau issued a report this week finding that while there was nothing wrong with the plans, per se, they had issues with specific plans of AT&T and Verizon.

"We are disappointed to see the FCC moving controversial items like the recent staff report on zero-rating in the waning hours of Chairman Wheeler’s tenure,:" they said in a statement, a sentiment shared by FCC senior Republican Ajit Pai.

"Chairman Wheeler’s decision to move forward with this report is a rare trifecta of anti-consumer policy, inappropriate use of delegated authority, and directly contradicting a request of Congress,” said Walden and Blackburn of the report. “Ultimately, if taken at face-value the findings in the report threaten to reduce consumer choice and drive up monthly bills. Our regulatory agencies should aim to foster innovation and competitive service offerings that benefit consumers, not squelch innovative business plans in their infancy. We remain hopeful that the agency will refrain from taking action on controversial items in the remaining days of this administration, and we’re looking forward to working with the next commission to encourage robust technological innovation for consumers across the country.”

Pai, who is likely to be the interim chair at least, signaled the report would not have an impact on his view of the issue.

Related: Zero Rating Report Gets Zero From Industry Groups

The Federal Communications Commission chairmanship is not usually among the first posts filled in a new administration. It can sometimes take months after the inauguration for a new chair to be installed, with a sitting commissioner — in this case either of two Republicans, Ajit Pai or Michael O’Rielly — serving as interim chairman in the, well, interim.

But a lot of names and scenarios have been bubbling up for the new chairman of the agency, particularly since it is hard to predict if the Trump administration will follow form or blaze new paths to various nominations.

Here is the current laundry list (with background input from various sources), with the caveat that someone could come out of left field to be named the FCC’s starting pitcher, as it were:

Pai: Senior sitting Republican. The last two Republican chairs — Kevin Martin and Michael Powell — were plucked from the ranks of sitting commissioners, though Powell had big name recognition as the son of Secretary of State Colin Powell, and Martin had been a lawyer in Florida representing President George W. Bush in the 2000 recount court battle. Still, Pai has Senate connections: He once worked with Attorney General nominee Sen. Jeff Sessions (R-Ala.).

O’Rielly: A dark horse, but multiple sources said his name is in the mix, given his Senate connections as a former Hill staffer.

Jeff Eisenach/Mark Jamison/Roslyn Layton: They are the deregulatory think tankers leading the FCC transition team. Wheeler was an Obama technology and FCC transition team leader and got the big chair, as was former Republican FCC chairman Mark Fowler. Fowler confirmed for the Wire that he “was in charge of supervising the transition teams of all major regulatory agencies, including the FCC” back in the Reagan years, so there is precedent for the pickers becoming the picked.

David Fellows: A telecommunications industry vet spanning engineering and operations, he’s the co-founder and chief technology officer of Layer3 TV, the Denver-based, self-described “next-generation cable operator,” and is also serving as chief scientist of the cable-focused Energy 2020 initiative. Fellows has deep experience in various facets of the telecom and tech sectors, including past key roles at MSOs (Comcast and AT&T Broadband), major suppliers (Scientific Atlanta, now part of Cisco Systems), telecom (GTE) and as a venture capitalist (Genovation Capital and Pilot House Ventures).

Rep. Kevin Cramer (R-N.D.): He is a member of the House Communications Subcommittee, though he does not have a high profile there. Cramer was also an early Trump supporter, which appears to count a lot with the President-elect.

Brandt Hershman: An Indiana state senator with telecom deregulation chops and a degree from Harvard, he is said to be a suggestion from VP-elect and former Indiana congressman and governor Mike Pence, who is leading the transition. “I wouldn’t be surprised if the next chairman had connections with Indiana,” said one FCC transition watcher.

Rep. Marsha Blackburn: The Tennessee Republican is another early, and vocal, Trump supporter who is a member of the transition team executive committee, though she may be looking for a bigger post. She is vice chair of the House Energy & Commerce Committee and has been very active on communications issues.

Ann Coulter: OK, that’s a long, long shot. But the conservative commentator was another early (and late) Trump supporter and last summer all but campaigned for the FCC post, telling Business Insider she would take aim at big media companies she said had “just gotten very powerful and very unfair,” something Trump echoed in criticisms of the proposed AT&T-Time Warner and approved Comcast-NBCUniversal deals and his attacks on media news outlets in general.

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One World Sports, Facing Reported Woes, Looks to ‘Bright Future’

One World Sports, the niche sports network that has been the go-to channel for distributors locked into, or looking for alternatives to, onerous carriage contracts, is having some money problems of its own, according to sources last week.

Sports news website Awful Announcing first reported the channel had furloughed workers in an effort to cut costs, and in fact had considered bankruptcy and failed to pay employees and vendors for months. Sources said last week the network — with access to 43 million homes but mostly carried on lightly penetrated sports tiers — had lined up an investor that backed out at the last minute, prompting the need to take quick action.

One World CEO Sandy Brown said some of the reported signs of financial distress weren’t accurate but didn’t give specifics. He said talks were ongoing with a potential investor and he was optimistic a deal would be reached. “We’re very excited about where the network is headed,” Brown told The Wire. “We’ve got a very bright future and we’ve just got to get through this.”

The channel is owned by One Media Corp., a Dallas investment firm headed by Seamus O’Brien. He’s also the owner of the New York Cosmos of the North American Soccer League, and Cosmos games air on One World Sports. That team and the league itself are in financial difficulties, according to reports. OWS also airs international hockey, basketball and golf matches, along with table tennis and badminton competitions. It’s landed several deals with distributors that were otherwise locking horns with pricier networks.

— Mike Farrell

WASHINGTON — With control of the Senate possibly passing to the Democrats and the House perhaps losing a dozen to two dozen seats, there could be some big changes in the principal Federal Communications Commission oversight committees.

After the Nov. 8 election, the second campaign season gets in gear as legislators angle for those plum posts in a new Congress.

Even though the House is unlikely to change hands — Republicans have the biggest majority (59 seats) in almost 100 years — most of the potential post-election action in the lame-duck Congress on the communications oversight front is in that chamber.

House Energy & Commerce Committee chairman Fred Upton (D-Mich.) and Communications Subcommittee chairman Greg Walden (R-Ore.) are term-limited and will have to give up their respective seats. Walden is looking to take over Upton’s chair, but has competition from John Shimkus (R-Ill.), who has seniority.

Walden is well-liked and, as head of the National Republican Congressional Committee, raises money and strategizes to help elect and re-elect Republicans to Congress. There were differing opinions on that race from sources both on and off the Hill, who asked not to be identified. One source believed seniority would win out and Shimkus would get the big chair. But another said Walden’s fundraising counted for a lot and predicted he would get the full committee chairmanship.

While Republicans will almost certainly lose seats, Walden reportedly has been advising them to run local races for a year now, a wise strategy given the questionable coattails of the eventual Republican presidential nominee.

If Walden does not get it, there might be a way for him to remain atop Communications despite his term limits. There have been talks about moving oversight of the Federal Trade Commission from the Commerce, Manufacturing and Trade Subcommittee to Communications, which would reconstitute Communications and allow Walden to chair that newly reconstituted committee.

That would make sense now that the FCC and FTC are having to team on overseeing online privacy.

If the FTC move doesn’t happen, vice chair Rep. Marsha Blackburn (R-Tenn.) would be in line for the chairmanship of the Communications Subcommittee given that she is currently vice chair.

With the horse not quite out of the barn--the FCC has voted on new Open Internet rules but they won't be official for a couple of months at least--Rep. Marsha Blackburn (R-Tenn.) has reintroduced a bill that would block Title II reclassification of Internet Access, or any other new net rules for that matter.

H.R. 1212, the Internet Freedom Act would state that the rules have no force, and would prohibit the FCC from issuing new network neutrality rules.

Blackburn is vice chair of the Energy & Commerce Committee.

“Last week’s vote by the FCC to regulate the Internet like a 1930s era public utility is further proof that the Obama Administration will stop at nothing in their efforts to control the Internet,” Blackburn said in reintroducing the bill. “There is nothing ‘free and open’ about this heavy-handed approach. These overreaching rules will stifle innovation, restrict freedoms, and lead to billions of dollars in new fees and taxes for American consumers."

The bill is primarily a statement, since it would almost certainly be vetoed by a President who is vocally supportive of new rules in general and Title II in particular.

The FCC voted Feb. 26 on a straight party line for rules Chairman Tom Wheeler has described as a light-touch way to insure new rules pass court muster.

But Blackburn, and many other Republicans, see it as the first step on the road to the depths of the Internet's economic degradation. “Once the federal government establishes a foothold into managing how Internet service providers run their networks they will essentially be deciding which content goes first, second, third, or not at all," says Blackburn. "