Legislative Activity

House Passes DOTCOM Act as Senate Considers Companion Bill

On June 23, the House of Representatives (House) passed H.R.805, the Domain Openness Through Continued Oversight Matters Act of 2015 (DOTCOM Act), by a vote of 378 to 25. The DOTCOM Act, previously discussed here and here, prohibits the National Telecommunications and Information Administration (NTIA) from terminating its contract with the Internet Corporation for Assigned Names and Numbers (ICANN) unless certain conditions are met. Under the current contract, NTIA oversees ICANN’s management of the domain name system. In March 2014, NTIA announced its intent to terminate the contract and turn ICANN oversight over to a “multi-stakeholder model” comprised of an international community of governments, civil society, and business. The House bill, which was passed without substantive amendments, requires Congress to receive 30 days to vet any proposed transition plan.

Meanwhile, on June 25, the Senate Commerce, Science, and Transportation Committee approved its own version of the DOTCOM Act, S.1551, by voice vote. The Senate bill is identical to the version of the bill the House passed. The Senate bill now goes to the full Senate for consideration.

This Week’s Hearings:

• Wednesday, July 8:  The Subcommittee on Communications and Technology of the House Commerce Committee will hold a hearing entitled “Internet Governance Progress After ICANN 53.” The hearing will feature testimony from NTIA Administrator Larry Strickling and ICANN CEO Fadi Chehade.

Regulatory Activity

FCC Announces Tentative Agenda for July 16 Open Meeting

On June 25, the FCC announced that the following items are tentatively on the agenda for the agency’s next Open Meeting scheduled for Thursday, July 16:

• Incentive Auction Procedures. As the “next step” to commencing the Broadcast Incentive Auction in the first quarter of 2016, the FCC will consider the Incentive Auction Procedures Public Notice, which, according to the Open Meeting announcement, “adopts a balanced set of auction procedures that will ensure an effective, efficient, and timely auction.” The Public Notice establishes final procedures for setting the initial spectrum clearing target, qualifying to bid, and bidding in the reverse and forward auctions.”

• Mobile Spectrum Holdings. The FCC will consider an Order on Reconsideration addressing petitions for reconsideration of “certain aspects of the Mobile Spectrum Holdings Report and Order” issued by the FCC June 2, 2014. In that Order, the FCC updated its “spectrum screen” – a gauge for spectrum holdings that the agency uses to determine whether a spectrum transaction warrants increased scrutiny – to reflect changes in spectrum bands used by wireless providers.

• Competitive Bidding. The FCC will consider a Report and Order, Order on Reconsideration, Third Order on Reconsideration, and a Third Report and Order that “provides meaningful opportunities for small businesses, rural telephone companies, and businesses owned by members of minority groups and women [termed “designated entities” by the FCC] to participate in the provision of spectrum-based services, and also strengthens the Commission’s rules to protect against unjust enrichment to ineligible entities.” The FCC sought comment on proposed changes to its competitive bidding rules in an April 17 Public Notice.

FCC Chairman Tom Wheeler posted to the FCC Blog on June 25 discussing the items on the agenda. The FCC’s Open Meeting will be held Thursday, July 16 at 10:30 a.m. in Room TW-C305 of the FCC’s headquarters and streamed online at fcc.gov/live.

FCC Seeks Information on Competition in the Video Marketplace

On July 2, the FCC issued a Public Notice seeking “data, information, and comment on the state of competition in the delivery of video programming.” Each year, the FCC issues a report (as required by statute) measuring the “status of competition” between video providers, including multichannel video programming distributors (comprising primarily cable TV systems and satellite TV providers), broadcast television stations, and online video distributors. The agency released its 16th annual report on April 2. The purpose of the report is to guide the FCC’s efforts to “establish regulations for the purpose of increasing competition and diversity in multichannel video programming distribution, increasing the availability of satellite delivered programming, and spurring the development of communications technologies.” Comments are due August 21, and reply comments are due September 21.

Comments Due June 16 on FCC Proposal to Designate UHF TV Channels for Unlicensed Use

On June 16, the FCC released a Notice of Proposed Rulemaking (NPRM) requesting comment on a proposal to “preserve a vacant channel” in “all areas in the United States” for unlicensed “white space” devices or wireless microphones following the broadcast incentive auction and the subsequent repacking of the television bands. The purpose of the proposal is to address the FCC’s recognition that there would be fewer unused TV channels available for use by unlicensed devices or wireless microphones following the incentive auction. To preserve a vacant channel for those uses, the FCC proposes to require applicants for low power TV, TV translator, and Broadcast Auxiliary Service facilities to “demonstrate that their proposed new, displacement, or modified facilities would not eliminate the last available vacant UHF television channel for use by white space devices and wireless microphones in an area.” The NPRM clarified that “none of the proposals will act as a constraint in the repacking process or limit the spectrum that is made available in the forward auction.” The proposal to preserve a vacant channel will only apply after the incentive auction. Following the NPRM’s publication in the Federal Register, comments on the FCC’s proposal are due August 3, and reply comments are due August 31.

FCC Reaches Agreement with TracFone to Unlock Mobile Phones

On July 1, the FCC announced that the agency’s Enforcement Bureau had entered into a Consent Decree with TracFone Wireless, Inc. (TracFone) to resolve its investigation regarding whether TracFone violated the FCC’s rules by failing to make their wireless phones unlockable. In FCC filings, TracFone certified that it would comply with the CTIA – The Wireless Association Consumer Code for Wireless Service (CTIA Code) for purposes of participation in the Lifeline program. The Lifeline program provides discounts on phone service for qualifying low-income Americans. The CTIA Code requires wireless providers to unlock customer handsets –allowing the device to be used on the network of any available wireless provider – and properly disclose their unlocking policies. According to the Consent Decree, almost all handsets currently offered by TracFone are not capable of being unlocked.

As part of its settlement agreement with the FCC, TracFone has agreed to: (1) by December 31, 2016, make all phones launched by TracFone unlockable; (2) provide clear notifications to its customers about its unlocking policies; (3) allow eligible non-Lifeline TracFone customers to trade in their old devices for a cash refund or an upgrade credit toward a new, unlockable handset; (4) provide new Lifeline customers with phones capable of being unlocked; and (5) provide a $400,000 per month offset to the Lifeline program until it provides unlockable handsets to new Lifeline customers.

FCC Chairman Names Mike Dabbs as Director of FCC Legislative Affairs

On July 1, FCC Chairman Tom Wheeler announced the appointment of Mike Dabbs as Director of the FCC Office of Legislative Affairs, which leads the agency’s communications with the U.S. House and Senate. Prior to joining the FCC, Mr. Dabbs led the federal government affairs for Applied Materials, Inc.