Legislative Activity

Agreement Reached on Closure of FCC Field Offices

On June 9, leaders of the House Energy and Commerce Committee (House Commerce Committee) announced an agreement with Federal Communications Commission (FCC) Chairman Tom Wheeler modifying the FCC’s plan to close 16 field offices. The agreement led to the cancellation of a previously scheduled hearing that was set to examine Mr. Wheeler’s proposal. According to Rep. Greg Walden, Chairman of the Subcommittee on Communications and Technology (Communications Subcommittee), the agreement will keep 15 of the 24 FCC field offices open. Chairman Wheeler had originally planned to keep open eight of the 24 field offices. The new agreement, characterized as a “win-win” by Fred Upton (R-MI), Chairman of the House Commerce Committee, aims to balance the work of FCC field agents, the streamlining of field operations, and efficient use of taxpayer dollars. In addition to keeping 15 field offices open, the compromise will ensure more robust rapid response capabilities in the western United States, provide new mechanisms for processing and resolving interference complaints, and improve enforcement of the FCC’s rules against pirate radio operators—all of which have been concerns for various industry groups including the National Public Safety Telecommunications Council (NPSTC), CTIA – The Wireless Association, and the National Association of Broadcasters. The new plan is expected to receive support from other FCC commissioners as well as other members of Congress.

House Appropriations Bill Reduces FCC’s 2016 Budget and Targets Net Neutrality Implementation

On June 11, the Subcommittee on Financial Services and General Government of the House Committee on Appropriations approved the Fiscal Year 2016 Financial Services bill by voice vote with important implications for the FCC. The bill gives the FCC $315 million in funding, which is $73 million below what the agency had requested for the upcoming fiscal year and $25 million below the fiscal year 2015 enacted level. The bill also prevents the FCC from using appropriated funds to implement, administer, or enforce the Open Internet Order until appeals pending before the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) are resolved. In addition, the bill prevents the FCC from using appropriated funds to implement or amend existing FCC rules unless it publishes the text of the rule change on the FCC’s website 21 days before the FCC votes on it.

DOTCOM Act of 2015 Approved by House Commerce Subcommittee

On June 10, the House Commerce Committee’s Communications Subcommittee approved H.R.805, the Domain Openness Through Continued Oversight Matters Act of 2015 (DOTCOM Act). The DOTCOM Act, which responds to a March 2014 announcement that the United States would relinquish its oversight of the Internet’s domain name system, 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. One such condition requires NTIA to provide Congress with a report certifying that the termination of NTIA’s contract with ICANN satisfies the United States’ objective of global Internet openness. The bill now goes to the full committee for consideration.

House Permanently Bans State and Local Taxes on Internet Access

On June 9, the House of Representatives passed H.R.235, the Permanent Internet Tax Freedom Act (PITFA), by voice vote. PITFA places a permanent moratorium on state and local taxation of Internet access and on multiple or discriminatory taxes on electronic commerce. The legislation was first introduced in 1998 and has been extended five times with bipartisan support. The bill was received in the Senate on June 10, was read twice, and was then referred to the Senate Committee on Finance for consideration.

This Week’s Hearings:

• Tuesday, June 16:  The Subcommittee on Communications and Technology of the House Commerce Committee will hold a hearing entitled “Progress Toward a Nationwide Public Safety Broadband Network.” It will examine the progress of FirstNet in its mandate to create the nation’s first interoperable public safety broadband network.

Regulatory Activity

FCC to Consider Four Items at June 18 Open Meeting

The FCC will hold its next Open Meeting on Thursday, June 18. According to the final Agenda released June 11, the FCC will consider the following four items at the meeting:

• Numbering Policies for Modern Communications. The FCC will consider a Report and Order that will “facilitate innovative technologies by establishing a process to authorize interconnected VoIP providers to obtain telephone numbers directly from the Numbering Administrators, rather than through intermediaries.”

• Lifeline and Link Up Reform. The FCC will consider a Further Notice of Proposed Rulemaking and three Orders to “comprehensively restructure and modernize the Lifeline program to efficiently and effectively connect low-income Americans to broadband, strengthen program oversight and administration, and take additional measures to eliminate waste, fraud, and abuse.” On May 28, FCC Chairman Tom Wheeler released a Fact Sheet and posted to the FCC blog outlining the proposals.

• Rules and Regulations Implementing the Telephone Consumer Protection Act. The FCC will consider a Declaratory Ruling and Order “reaffirming the Telephone Consumer Protection Act’s protections against unwanted robocalls, encouraging pro-consumer uses of robocall technology, and responding to a number of requests for clarity from businesses and other parties.” The proposals as reflected in a Fact Sheet issued on May 27 by Chairman Wheeler.

• Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions. The FCC will consider a Second Order on Reconsideration that “resolves petitions for reconsideration of the [FCC’s] Order adopting rules to implement the Broadcast Television Spectrum Incentive Auction, providing parties with additional certainty ahead of the auction.”

The FCC’s Open Meeting will be held at 10:30 a.m. on Thursday, June 18 in Room TW-C305 at the FCC’s headquarters (445 12^th Street S.W., Washington, D.C.) and broadcast live at fcc.gov/live.

D.C. Circuit Upholds FCC’s Broadcast Incentive Auction Rules

On June 12, the Court of Appeals for the D.C. Circuit issued an opinion upholding the FCC’s framework for the Broadcast Incentive Auction and denying petitions filed by the National Association of Broadcasters (NAB) and the Sinclair Broadcast Group, Inc. (Sinclair) (collectively, Petitioners).

The Spectrum Act grants the FCC the authority to reassign television channels when the FCC considers it “appropriate.” When reassigning channels, the agency must “make all reasonable efforts to preserve . . . the coverage area and population of each broadcast television licensee, as determined using the methodology described in OET Bulletin 69 of the Office of Engineering and Technology of the FCC.” Petitioners’ “principal challenge” concerned the FCC’s decision in a June 2, 2014 Report and Order and September 30, 2014 Declaratory Ruling to use the procedures for evaluating television coverage and interference contained in OET Bulletin 69, but to use different computer software and data inputs. Petitioners argued that the FCC’s decision was contrary to the statutory mandate, which they argued required the use of the exact software and inputs in OET Bulletin 69 and which could, when applied, result in a significant loss of viewership of broadcast TV stations. The court disagreed, finding that the statute merely referenced OET Bulletin 69 and did not mandate what data the FCC should use, and that the agency had “persuasively explained” why the new software was “more user-friendly and better adapted” to the FCC’s needs during the reverse auction and repacking processes of the Broadcast Incentive Auction.

D.C. Circuit Denies Request for Stay of Open Internet Rules

On June 11, the Court of Appeals for the D.C. Circuit denied a motion for stay of the FCC’s Open Internet (i.e. Net Neutrality) rules released March 12. In a brief order, the court stated that the United States Telecom Association (USTA) and other petitioners requesting the stay had “not satisfied the stringent requirements for a stay pending court review.” The court granted the petitioners’ unopposed motion for expedited review of the Open Internet rules, and strongly urged all aligned parties to submit joint briefs in the case.

FCC Seeks Comments on Spectrum Interference Dispute Resolution Petition for Rulemaking

On June 11, the FCC released a Public Notice requesting statements opposing or supporting a Petition for Rulemaking (Petition) filed by the Samuelson-Glushko Technology Law & Policy Clinic at the University of Colorado Law School (TLPC). TLPC states that under the FCC’s existing rules, “an operator that brings a claim asserting that another operator is causing harmful interference cannot be certain whether, when, or how its claim will be resolved. Operators caught up in unresolved spectrum disputes are thereby unable to make full use of their spectrum and may ultimately suffer economic loss.”

TLPC’s Petition requests that the FCC initiate a rulemaking to provide a “fact-based, transparent, and timely adjudication process for spectrum interference disputes.” Specifically, TLPC asks the FCC to (1) permit a private party to file a spectrum interference complaint against another private party with the Office of Administrative Law Judges; (2) modify existing rules to add deadlines to the adjudication process; and (3) make resources “available as and where needed such as providing support staff, hiring or loaning additional LJs and a spectrum advisor, or engaging experts and policy advisors to ensure the adjudication process is fact-based and timely.”

The FCC requests that parties file statements supporting or opposing the petition by July 13.