Legislative Activity

House and Senate Committee Chairs Call for Reconsideration of IANA Transition

On September 8, House Committee on Energy and Commerce Chairman Fred Upton (R-MI), House Committee on the Judiciary Chairman Bob Goodlatte (R-VA), Senate Committee on Commerce, Science, and Transportation (Senate Commerce Committee) Chairman John Thune (R-SD), and Senate Committee on the Judiciary (Senate Judiciary Committee) Chairman Charles Grassley (R-IA) wrote a letter to Attorney General Loretta Lynch and Secretary of the US Department of Commerce Penny Pritzker that raised concerns about the upcoming transition of the Internet Assigned Numbers Authority (IANA) to a global multistakeholder model. The IANA, which is a department of the Internet Corporation for Assigned Names and Numbers (ICANN), coordinates the assignment of technical Internet protocol (IP) parameters, performs various functions associated with the Internet domain name system, and allocates the Internet numbering resources. At present, the National Telecommunications and Information Administration (NTIA) oversees IANA’s management of the domain name system that converts alphabetic domain names (i.e. squirepattonboggs.com) into a numeric IP address required to access websites, mail services, and other parts of the Internet under the terms of a contract with ICANN. In March 2014 NTIA announced its intent to terminate the contract and turn over its oversight responsibilities to ICANN and the “global multistakeholder community” consisting of governments, civil society, and business interests. On August 16, the NTIA informed ICANN that “barring any significant impediment, NTIA intends to allow the IANA functions contract to expire as of October 1 [2016].”

The letter from the committee chairs noted that the decision to transition the IANA functions is an “irreversible decision [that] could result in a less transparent and accountable Internet governance regime or provide an opportunity for an enhanced role for authoritarian nation-states in Internet governance.” The letter continued by reciting a “broad range of important questions on both law and policy” that are currently unresolved with respect to the IANA functions transition. Such issues include the accountability and jurisdiction of ICANN, as well as ICANN’s antitrust status. The committee chairs urged the Department of Justice and the Department of Commerce to address the outstanding issues and reconsider the Obama Administration’s current plan to transition the IANA functions on October 1.

This Week’s Hearings:

• Wednesday, September 14: The Senate Judiciary Committee’s Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts will hold a hearing entitled “Protecting Internet Freedom: Implications of Ending U.S. Oversight of the Internet.” Witnesses have not yet been announced.

• Thursday, September 15: The Senate Commerce Committee will hold a hearing entitled “Oversight of the Federal Communications Commission.” All five Federal Communications Commission (FCC) commissioners will testify as witnesses at the hearing.

Regulatory Activity

FCC Announces Tentative Agenda for September 29 Open Meeting

The FCC has announced that the following items are tentatively on the agenda for the FCC’s next Open Meeting scheduled for September 29:

• Improving Wireless Emergency Alerts (WEA). The FCC will consider a Report and Order and Further Notice of Proposed Rulemaking that would “leverage advancements in technology to improve wireless emergency alert content, delivery and testing, while seeking comment on further measures to ensure effective alerts.”

• Review of Foreign Ownership Policies. The FCC will consider a Report and Order that “extends to broadcast licensees the same streamlined rules and procedures that common carrier wireless licensees use to seek approval for foreign ownership, with appropriate broadcast-specific modifications. The item also establishes a framework for a publicly traded common carrier or broadcast licensee or controlling U.S. parent to ascertain its foreign ownership levels.”

• Independent Programming. The FCC will consider a Notice of Proposed Rulemaking (NPRM) that “proposes the steps the [FCC] can take to promote the distribution of independent and diverse programming to consumers.” The NPRM follows a Notice of Inquiry (NOI) issued by the FCC in February of this year. The NOI sought comment on a number of issues, including program carriage contractual provisions – such as most favored nation and alternative distribution method clauses – program distribution by over-the-top platforms, and program bundling arrangements.

• Expanding Consumer Choice. The FCC will consider a Report and Order that “modernizes the [FCC’s] rules to allow consumers to use a device of their choosing to access multichannel video programming instead of leasing devices from their cable or satellite providers.” Additional information about the set-top box proposal is below.

FCC Chairman Wheeler discussed the agenda items in a post to the FCC Blog, and released a Fact Sheet describing the “Expanding Consumer Choice” Report and Order, on September 8. The FCC’s Open Meeting will commence September 29 at 10:30 a.m. in the Commission Meeting Room of the FCC’s headquarters at 445 12th St. SW, and will be streamed live at fcc.gov/live.

FCC Chairman Wheeler Circulates Set-Top Box Proposal

FCC Chairman Wheeler has circulated within the agency proposed rules to “allow consumers to access their pay-TV content via free apps on a variety of devices,” according to a Fact Sheet released September 8. The FCC states in the Fact Sheet that due to a lack of “meaningful alternatives” or competition in the set-top box marketplace, “[n]inety-nine percent” of pay-TV subscribers rent set-top boxes, at an average annual rental cost of $231 per household. The FCC first released proposed rules in a February 18 Notice of Proposed Rulemaking, which Chairman Wheeler termed a proposal to “unlock[] the set-top box marketplace.” The proposed rules “simplify the [FCC’s] original proposal” while also “satisfying Congress’ mandate” to “ensure consumers will be able to use the device they prefer for accessing programming they’ve paid for,” according to the Fact Sheet. The Fact Sheet also states that the FCC will vote on whether to adopt the proposed rules at its September 29 Open Meeting.

According to the Fact Sheet, the new rules will “require pay-TV providers to offer to consumers a free app, controlled by the pay-TV provider, to access all the programming they pay for on a variety of devices,” as a result of which consumers will “no longer have to pay monthly rental fees” for a set-top box. Pay-TV providers will be required to provide the apps to “widely deployed platforms” such as Roku, Apple iOS, Windows, and Android. The largest pay-TV providers will be required to comply within two years. The FCC also states that the proposed rules will: enable consumers to “search across all pay-TV content;” “honor[] the sanctity of contracts through pay-TV control of the app and related software;” “remov[e] barriers to innovation, speeding products to market;” and seek to ensure that “important consumer protections like emergency alerting, privacy and accessibility will apply.”