Legislative Activity

House Passes Bill Preventing Broadband Rate Regulation

On April 15, the House of Representatives (House) passed H.R.2666, the No Rate Regulation of Broadband Internet Access Act by a vote of 241-173. The bill’s main provision states that “the Federal Communications Commission may not regulate the rates charged for broadband Internet access service.” The possibility that the Federal Communications Commission (FCC) might apply rate regulation to broadband service initially arose when the FCC adopted its Open Internet rules in March 2015, which reclassified broadband Internet access service as a telecommunications service subject to regulation—including regulation for “just and reasonable” rates—under Title II of the Communications Act. Though the FCC decided to forbear from applying rate regulation to broadband access in its adoption of the Open Internet rules, the legislation passed by the House would ensure further protection against such regulation. Commissioners Pai and O’Rielly issued statements supporting the legislation. The bill now goes to the Senate for consideration.

House Judiciary Committee Approves Email Privacy Act

On April 13, the House Judiciary Committee unanimously approved H.R.699, the Email Privacy Act. The bill, which updates the Electronic Communications Privacy Act of 1986, enhances the privacy protections applicable to electronic communications such as emails that are stored by third-party service providers while preserving the ability of law enforcement to access such communications. Specifically, the bill creates a uniform warrant standard for law enforcement to obtain the content of electronic communications in criminal investigations regardless of the age of the communication or the type of third-party service provider. The bill also allows the service provider to notify the customer of the receipt of a warrant or subpoena and clarifies that commercial public content, such as an advertisement on a website, can be obtained with a process other than a warrant. The bill now goes to the full House for consideration.

Proposed Legislation to Enact a Budgetary Cap on the Lifeline Program Supported by FCC Commissioners Pai and O’Rielly

On April 13, FCC Commissioners Pai and O’Rielly released a letter addressed to Rep. Greg Walden (R-OR) expressing “strong support for Congressman Austin Scott’s effort to enact a budgetary cap on the [FCC’s] Lifeline program.” Rep. Scott’s (R-GA) proposed bill, H.R. 4884, the Controlling the Unchecked and Reckless Ballooning of Lifeline Act of 2016 (CURB Act), would, in principal part, “place an annual cap on support provided through the Lifeline program.” Lifeline is a government subsidy program administered by the FCC that provides discounted phone service to low income consumers. On March 31, the FCC voted to “modernize[] and reform[] its Lifeline program to help low income consumers afford access to the 21st Century’s vital communications network: the Internet,” according to a News Release (the item has not yet been released). The letter from Commissioners Pai and O’Rielly states that a budgetary cap is a “necessary and important step toward greater fiscal responsibility” for Lifeline, and notes that during the FCC’s deliberations leading to the March 31 Order, a “majority of Commissioners [agreed] to adopt a firm cap at a level of $2.0 billion” but that agreement later fell apart. On the other hand, as noted in an ex parte notice filed by Commissioner Clyburn’s office, some Congressional staffers expressed concern that a budget cap would “bind future [C]ommission action and could significantly constrain the program,” noting that, “[t]here simply cannot be a situation where people are turned away because the program has run out of funds.”

Spoofing Protection Bill Introduced in House

On April 13, Rep. Jackie Speier (D-CA) introduced H.R.4932, the Repeated Objectionable Bothering of Consumers on Phones (ROBOCOP) Act, which aims to expand the consumer protections against the practice known as “spoofing” whereby a telephone caller alters the phone number that appears on the recipient’s caller identification (caller ID) system often to scam consumers or trick law enforcement. Recognizing that it is technically feasible for telecommunications carriers to block calls with falsified caller ID information, the bill would require those carriers to offer that technology to their customers as a way to reduce the number of unwanted telephone calls. The bill would also direct the FCC to require telecommunications carriers to label and block calls with fraudulent caller ID. The bill has been referred to the House Committee on Energy & Commerce (House Commerce Committee).

Bill to Require Emergency Disclosure of Call Location Information Introduced in Senate

On April 11, Sen. Pat Roberts (R-KS) introduced S.2770, the Kelsey Smith Act. The legislation would require telecommunications carriers to provide the call location information of a user’s telecommunications device to law enforcement in emergency situations involving a risk of death or serious physical injury or in order to respond to the user’s call for emergency services. The legislation is named for an 18-year-old woman who was abducted and murdered in Kansas (more information available here). The police were unsuccessful in locating her body for four days until information pertaining to the location of her cell phone was turned over to law enforcement after which the body was found quickly. The bill would align federal law with similar laws already enacted in twenty-two states. The bill has been referred to the Senate Committee on Commerce, Science, and Transportation for consideration.

This Week’s Hearings:

• Tuesday, April 19: The Oversight and Investigations Subcommittee of the House Commerce Committee will hold a hearing titled “Deciphering the Debate over Encryption: Industry and Law Enforcement Perspectives.” Witnesses include (1) Dr. Matthew Blaze, Associate Professor, Computer and Information Science, School of Engineering and Applied Science, University of Pennsylvania; (2) Captain Charles Cohen, Commander, Officer of Intelligence and Investigative Technologies, Indiana State Police; (3) Chief Thomas Galati, Chief, Intelligence Bureau, New York City Police Department; (4) Amy Hess, Executive Assistant Director for Science and Technology, Federal Bureau of Investigation; (5) Ron Hickman, Sheriff, Harris County Sheriff’s Office, on behalf of the National Sheriff’s Association; (6) Bruce Sewell, General Counsel, Apple, Inc.; (7) Daniel Weitzner, Director and Principal Research Scientist, Computer Science and Artificial Intelligence Laboratory (CSAIL) Decentralized Information Group (DIG), Massachusetts Institute of Technology; and (8) Amit Yoran, President, RSA Security.

Regulatory Activity

FCC Seeking Comment by May 12 on Proposed Reforms to Universal Service Mechanisms

On March 30, the FCC released a Report and Order, Order and Order on Reconsideration, and Further Notice of Proposed Rulemaking adopting “significant reforms” to the FCC’s “rate-of-return universal service mechanisms” in order to “fulfill [the FCC’s] statutory mandate of ensuring that all consumers ‘have access to advanced telecommunications and information services.’” These reforms included, in particular, “moderniz[ing] the rate-of-return program to support the types of broadband offerings that consumers increasingly demand, efficiently target[ing] support to areas that need it the most, and establish[ing] concrete deployment obligations to ensure demonstrable progress in connecting unserved consumers.” In the Further Notice of Proposed Rulemaking, the FCC sought comment on related issues including: (1) “targeted rule changes to [the FCC’s] existing accounting and affiliate transaction rules to eliminate inefficiencies and provide guidance to rate-of-return carriers,” (2) “additional options for disaggregating support for those discrete areas that are served by an unsubsidized competitor,” (3) proposals to “adopt a mechanism to provide additional support to unserved Tribal lands,” (4) other measures the FCC should take to encourage broadband deployment by rate-of-return carriers, and (5) additional proposals to “streamline [eligible telecommunications carriers’] reporting requirements.” In addition, the FCC hosted a webinar on Monday, April 4, to summarize the reforms adopted in the Order, which is available here. Per the publication of the item in the Federal Register, comments on the FCC’s proposals are due May 12, and reply comments are due June 13.

Comments Due May 26 on NCTA and ACA Petition to Clarify Cable Operators’ “Written Information” Requirement for Subscribers

The FCC is seeking comment on a petition filed by the National Cable & Telecommunications Association (NCTA) and the American Cable Association (ACA) seeking a declaratory ruling that information sent electronically to subscribers by email to a “confirmed email address” – or by “other electronic measures reasonably calculated to reach individual consumers” – satisfies the FCC’s rule requiring cable operators to provide certain “written information” to subscribers (47 C.F.R. § 76.1602(b)). NTCA’s and ACA’s petition argues that the petition should be granted because “businesses and consumers prefer the efficiency, effectiveness, and ease of electronic communications” over “print and ‘snail mail.’” Comments on the petition are due to the FCC on May 26, and reply comments are due on June 10, according to an FCC Public Notice.

Comments due May 31 on Petition to “Rewrite” the FCC’s Part 80 Maritime Regulations

On February 16, the Radio Technical Commission for Maritime Services (RTCM) filed a Petition for Rulemaking (Petition) requesting that the FCC “comprehensively updat[e] and streamlin[e]” its Part 80 rules for maritime services, with the goals of “enhanc[ing] maritime safety” and “promot[ing] the efficient use of the maritime radio spectrum.” RTCM’s Petition notes that the FCC’s last “major rewrite” of the Part 80 rules occurred in 2000, and that since that time relevant “standards and [] maritime radio technologies have undergone additional changes, revisions, and advances.” RTCM’s Petition proposes a variety of rule changes including, notably, “clarifying the requirements and procedures regarding maritime mobile service identities, updating the equipment and carriage requirements for digital selective calling equipment, revising the rules to authorize new types of Automatic Identification System equipment and Emergency Position Indicating Radiobeacons, and adding regulations for High Speed Craft,” according to an FCC Public Notice (PN). According to the PN, the FCC requests comment on RTCM’s Petition by May 31, and reply comments by June 21.