Free Press countered comments made by FCC Commissioner Ajit Pai in a speech last month at the Heritage Foundation on the effect the FCC’s net neutrality rules have had on broadband investment (see 1602260053), in a letter to the FCC. “There is an acute need to put these public facts in the record in response to statements from Commissioner Pai, who has inaccurately suggested on several occasions that ‘growth in broadband investment has flatlined,’” Free Press said in the letter. “With 2015 results now available, we can say ISP capital expenditures were higher in 2015 than 2014 despite the completion of several major upgrades in 2014.” Pai repeated the comments in March 2 Senate testimony (see 1603020051), Free Press said. “We can take away different meanings from a set of data, but it is dangerous when a sworn representative of the people is willing to invent his own data in order to conform to his worldview,” the group said. “Free Press’s view is that in today’s weak-duopoly market -- where cable continues to enjoy insurmountable natural monopoly advantages -- the biggest issue facing the Commission is how to reduce consumer harms resulting from ISPs exercising market power.” The group also updated an earlier report, adding in recently reported financial data. Capital expenditures by publicly traded broadband ISPs increased by nearly $3 billion in 2015, 4 percent above 2014 levels, the report said. Investments by Verizon Wireless, Sprint and T-Mobile were up 12 percent, 42 percent and 9 percent respectively, it said. The letter and attached report were posted Wednesday in docket 14-28. “The claims made by Free Press are about as credible as Netflix’s assertions that it wasn’t throttling its own customers," responded Matthew Berry, Pai chief of staff. "For example, most of the supposed increase in capital investment comes from a year-to-year accounting change made by Sprint to its treatment of leased devices. This discredited report does nothing to change the fact that capital investment fell in the first year of the Title II era.”
David Medine, who has led the Privacy and Civil Liberties Oversight Board since 2013 and is its first full-time chairman, will resign from the agency July 1, he said in a statement Tuesday. He said he will work for an unidentified development organization, "advising on data privacy and consumer protection for lower-income financial consumers in developing countries." The five-member board, established in 2004 by Congress based on a 9/11 Commission recommendation, is an independent agency within the executive branch that advises the president and other White House officials about privacy and civil liberties ramifications of proposed laws and policies. “Even after my departure, the Board Members and our dedicated staff remain committed to carrying forward the Board’s critical work, including its ongoing examination of counterterrorism activities under Executive Order 12333,” said Medine. That order basically establishes the overall framework for U.S. intelligence activities, including when and how agencies can spy on people within the U.S., and provides policies on what data can be collected, kept and shared. Medine led the agency during "an especially momentous period, coinciding with a concerted examination of our national security tools and policies to ensure they are consistent with my Administration's commitment to civil liberties and individual privacy," said President Barack Obama in a statement. Obama said the agency's "thoughtful analysis and considered input" under Medine's leadership "has consistently informed my decision-making and that of my team." PCLOB didn't comment on who will succeed Medine.
A large amount of money and the future of spectrum policy “hang on the outcome of a brave and untested idea dreamed up by economists and enabled by engineers,” said NAB General Counsel Rick Kaplan of the start of the incentive auction, in a blog post Tuesday. Kaplan credited FCC staff for the auction's construction, along with former FCC Chairman Julius Genachowski and current FCC Chairman Tom Wheeler. “Broadcasters will continue to work with the Commission” to minimize damage to low-power TV and translator services, Kaplan said. “What happens next is anyone’s guess, but the FCC staff can certainly be proud that they worked incredibly hard under tight timelines to bring us to the doorstep of this exciting auction," he said.
An independent compliance officer (ICO) gave AT&T high marks for its efforts to satisfy FCC conditions on its 2015 takeover of DirecTV (see 1507280043). Donald Stern, a managing director of Affiliated Monitors who was named ICO under an agency monitoring process, said AT&T met its reporting obligations for the transaction, including submitting a report Jan. 27 on its compliance with conditions. "The staff and leadership of AT&T has been cooperative and supportive of the ICO," he said in his report to the commission, which was posted Monday in docket 14-90. Stern noted compliance and evaluation complexities for AT&T and himself, and said he hadn't been able to independently verify substantive information provided by the company. But he said he had been able to review AT&T's descriptions of its compliance systems and processes, and had begun testing to validate company data. Stern said AT&T met its reporting duties for complying with four conditions he reviewed: (1) to deploy fiber to the premises (FTTP) to 12.5 million new mass-market customer locations (only 1.5 million of which can be in new, "greenfield" housing developments) within four years; (2) to offer 1 Gbps service to schools and libraries eligible for E-rate discounts in, or contiguous with, areas where AT&T has FTTP service; (3) not to favor affiliated programming over unaffiliated programming, including through an exemption of affiliated services from usage-based allowances; and (4) to devise a program to boost broadband adoption by low-income households in the company's wireline footprint. He said initial verification testing "tends to confirm the reliability of reported FTTP information, but more testing is needed." AT&T data were generally redacted. Stern didn't report on an Internet interconnection disclosure condition, which is the subject of a separate review process.
FCC Commissioner Mike O’Rielly said the FCC should take a closer look at whether Netflix violated commission rules in a number of areas, after allegations it throttled its own transmission to AT&T and Verizon devices for five years (see 1603250050). O’Rielly said emphatically he opposes calls to subject edge providers like Netflix to the 2015 net neutrality rules. “A company cannot knowingly make misrepresentations and inaccurate statements before the Commission,” O’Rielly said in a speech to the American Action Forum. “In fact, doing so violates Commission rules intended to protect the integrity of the Commission and our decisions. We need to closely examine filings that were made for potential violations in light of this new information. It appears that Netflix made accusations of wrongdoing by ISPs, all the while knowing that its own practices were one of the causes of consumer video downgrading.” The FCC also should acknowledge Netflix wasn't “some passive participant when it came to the formation [o]f the Commission’s Title II mandates for net neutrality,” he said. “It was a key representative of the supposed marketplace the rules were designed to protect: the over-the-top video distribution business. Many rules were based on the representations made by Netflix and other similarly situated entities, including Google.” The FCC posted O’Rielly’s remarks.
Participants will discuss two drafts at Tuesday's NTIA meeting on developing best practice privacy guidelines for facial recognition technology used by commercial entities (see 1603180012). John Verdi, NTIA director-privacy initiatives, said in a message sent Friday that the goal is to try to get consensus on one of the documents, which were circulated with comments from a working group. One of the drafts said the best practices, based on the Fair Information Practice Principles, are designed to provide a "flexible and evolving approach" to using the technology and keeping up with advancements. The FIPPs are a set of eight principles that are rooted in the tenets of the Privacy Act of 1974. The draft said it provides a "general roadmap" to help companies "recognize differing objectives, risks and individual expectations" for the different technological applications. Some issues covered include transparency, data minimization, use limitation and security safeguards. The guidelines won't apply to data aggregation uses nor for non-identifying analysis, and they also won't apply to law enforcement, government, intelligence and military entities.
Several low-power TV broadcasters filed another appeal of aspects of the incentive auction in the U.S. Court of Appeals for the D.C. Circuit, according to court documents. Free Access & Broadcast Telemedia and Word of God Fellowship were recently denied an emergency stay of the auction in their ongoing case challenging an FCC rejection of their appeal of the auction (see 1603170054). In a petition for review filed Monday, the two LPTV broadcasters were joined by Signal Above, Grace Worship Center and Excellence in Christian Broadcasting in a challenge of different aspects of the auction. The petition asks the court to vacate the FCC orders that included rules designed to mitigate the auction's effects on LPTV and an order on when LPTV broadcasters have to vacate their spectrum to make way for wireless users. The rules should be overturned because they violate the Administrative Procedure Act and violate the Spectrum Act provision preventing the FCC from altering LPTV spectrum rights, the petition said.
North American Portability Management said completion of key transition agreements is taking longer than expected in the FCC's planned shift of local number portability administrator (LNPA) duties from Neustar to iconectiv (Telcordia). The "Transition Oversight Manager," PwC, continues to track transition risks, with dates for major milestones dependent on completion of the iconectiv master services agreement (MSA) and the Neustar transition services contract, said an NAPM status report posted in docket 95-116 Friday. "Completion of these agreements is extending beyond previously expected timeframes. Agreement on key transition requirements is necessary in order to complete the iconectiv master services agreement and the Neustar transition services contract," the report said. The MSA was "substantially completed" on Oct. 26, and NAPM voted to approve it on Nov. 6, conditioned on its submission to the FCC and subsequent commission approval without substantive changes, it said. PwC has hosted three "well attended" LNPA transition outreach webcasts since December (materials available here), NAPM noted.
Parties to the FCC's special access review continued to disagree about market data analysis and possible further FCC regulation of incumbent telco business broadband services. AT&T and CenturyLink submitted a filing posted Friday in docket 05-25 that included a declaration from various professors that "responds to and rebuts" the declaration from Jonathan Baker filed March 2 on behalf of Level 3 and Windstream. AT&T and CenturyLink said their declaration showed the Baker declaration was flawed and shouldn't be used by the FCC to find that special access competition requires the presence of at least three CLECs with their own connections to a building. TDS Metrocom filings disagreed with AT&T and CenturyLink arguments against FCC regulation of ethernet services. "The Commission does not have to reverse its forbearance orders to affirm that the [Bells] must sell wholesale Ethernet at an avoided cost discount," TDS said. A Sprint filing said the incumbent telcos were asking the FCC "to ignore the dearth of special access competition on the promise that cable providers have upended the special access marketplace and will soon emerge as fierce competitors" to ILECs. A Comcast filing posted Monday summarized a discussion with FCC staffers in which the company's officials provided overviews of their business service offerings, including of ethernet services. A Windstream filing summarized a meeting with FCC General Counsel Jonathan Sallet in which it said "the preservation of DS1 and DS3 capacity UNEs after the transition to IP-based or fiber networks is an important component to remedies for ILEC market power in special access markets." DS1s (1.5 Mbps) and DS3 (45 Mbps) are digital special access circuits and UNEs are unbundled network elements, such as circuits, sold at wholesale discounts.
A broad collection of public interest groups, led by New America’s Open Technology Institute, urged the FCC to clamp down on zero rating, saying the net neutrality rules are now more than a year old but ISPs “like Comcast, AT&T, Verizon, and T-Mobile are using new ‘zero-rating’ plans to undermine the spirit and the text of the rules,” the group said in a letter Monday. “Zero-rating allows ISPs to exempt certain content from customers’ data caps. As currently offered, these plans enable ISPs to pick winners and losers online or create new tolls for websites and applications.” Zero rating plans are “a serious threat to the Open Internet,” the groups said. “They distort competition, thwart innovation, threaten free speech, and restrict consumer choice -- all harms the rules were meant to prevent.” The plans come in various flavors, the groups said. "Comcast’s plan directly favors its own content over competitors’," the letter said. "Plans from AT&T and Verizon charge application providers a fee in order to be zero-rated. T-Mobile zero-rates select video providers but only those that meet its substantial and sometimes burdensome technical requirements." Consumers Union, the Electronic Frontier Foundation, Free Press, Greenpeace, the Greenlining Institute, the Media Alliance, Moveon.org, The Utility Reform Network and the United Church of Christ were among the signers of the letter. The FCC has sought information from the various companies with zero-rated offerings (see 1512170030). “To claim that zero rating is anything other than good for consumers makes zero sense,” said Jonathan Spalter, chairman of Mobile Future. “New service options that make it easier for consumers to afford access to more content is a good thing. Free mobile data offerings give consumers more than they pay for, which is particularly important for price-sensitive consumers. If the FCC is trying to encourage competition and consumer choice, it will reject efforts to thwart carriers from vying for customers with differentiated new service offerings.” Matthew Berry, chief of staff to FCC Commissioner Ajit Pai, tweeted about Netflix (see 1603250050) and the zero-rating letter Monday. “Days after revelation Netflix was secretly engaged in discriminatory throttling, so-called ‘public interest’ groups target ... zero-rating,” he said. “Last few days prove that many self-proclaimed ‘public interest’ organizations are really ‘Netflix interest’ organizations.”