The FTC and DOJ's Antitrust Division approved changes to a form that companies use to report a proposed merger, acquisition or related transaction under the Hart-Scott-Rodino Antitrust Improvements Act. The Antitrust Act Notification and Report form provides the "initial evaluation of the potential anticompetitive impact" on such transactions, said the commission, which voted 2-0 to OK the changes, in a Thursday news release. The form's changes include: deleting language requiring filers to explain how they determined the fee; an updated "Revised Date" on the bottom of every page; a reference to a specific regulation listing civil penalties for noncompliance; an updated address for the FTC's Premerger Notification Office; and updated electronic version of the form.

GAO criticism of FCC Lifeline USF oversight should be analyzed and put in context, said Davis Wright attorney Danielle Frappier, who represents Lifeline wireless providers, in a Friday blog post. She noted some characterized GAO's Thursday report as confirming that waste, fraud and abuse in the low-income subsidy program are "prevalent" and "everything" has gone wrong (see 1706290037). "No one asserts that the program is perfectly structured or administered. And, where corrections and improvements in the program can be made, they should be made," wrote Frappier. "But there are some significant limitations on the data and analysis in the report of which readers should be aware. Probably most importantly, the report is based on data from 2014, and therefore necessarily takes virtually no account of the many additional safeguards and improvements that have been made." She cited specific FCC efforts to improve Lifeline enrollment verification procedures and "some real difficulties in doing large scale comparisons of data cross multiple databases," as GAO did. "The report notes that the Improper Payments Information Act rate for the Lifeline program was 0.45 percent in 2015. That is quite a low number -- lower than for the E-rate program, which in that same year was 6.33 percent (see the FCC Fiscal Year 2015 Agency Financial Report at p. 88) and much lower than the typical improper payment rates for programs such as Medicare, Medicaid, veterans’ benefits, etc.," she wrote. "As a result, the appropriate reaction to an improper payment rate of less than one-half of one percent is to use this data to continue to make improvements to the program, not to treat the program as in any sort of crisis calling for an urgent or hysterical response." The National Grange issued a statement Thursday urging continued support for Lifeline. An FCC Wireline Bureau public notice Thursday in docket 11-42 reminded Lifeline providers of their primary responsibility to ensure the eligibility of consumers seeking program support.

FCC Commissioner Mignon Clyburn said playing defense in the minority at the agency is a "very interesting" experience. "Playing the entire field has been a little exhausting but exhilarating at the same time,” she said in an interview on C-SPAN's The Communicators set to air Saturday and Monday. There have been "more than a couple" 2-1 votes, with her dissenting, but she said she still cares about the same things, including putting "consumers first." Asked if she was rallying net neutrality advocates to try to change Republican colleagues' plans to roll back Title II broadband regulation, put pressure on Congress, or build a record in court, Clyburn said, "All of the above." Without Communications Act Title II broadband classification, "What backstop authority do we have?" she asked, citing USF, broadband deployment barriers and pole attachments as areas that would suffer without Title II. “Right now we have certainty that we will be the referee on the field enabling and answering the calls of people who say ‘I want choice, I want connectivity.’'' she said. "All of these things are made possible with connectivity, and if we do not have all of the tools in our regulatory belt to be able to say that we have authority to enable all of these wonderful opportunities, then who does and how does it get done?" She also addressed inmate calling service charges, AT&T/Time Warner, broadband infrastructure pre-emption and other subjects.

Correction: Broadcasters would still have to offer 50 hours of described video during prime time or children's programming under the FCC's draft video description item. Only the proposed additional requirement of 37.5 hours could be fulfilled at any time between 6 a.m. and midnight (see 1706280063).

The FCC released an order “taking a necessary procedural step so that the Code of Federal Regulations contains an accurate reflection of the Commission’s current privacy rules.” The Thursday order clarifies that the FCC’s pre-2016 privacy order rules that apply to wireless and wireline carriers have been reinstated. The FCC said the step was necessary after Congress rejected ISP privacy rules approved under former Chairman Tom Wheeler, through a Congressional Review Act resolution (see 1704040059). FCC Commissioner Mignon Clyburn partially dissented and partially concurred. “Because Congress has invalidated the 2016 Privacy Order, we simply make clear that the privacy rules that were in effect prior to 2016 are once again effective,” Chairman Ajit Pai said in a statement. The Wireline Bureau “was slated to perform this ministerial act,” he said. “But when Commissioner Clyburn asked for this matter to be addressed at the Commission level, we brought it up for a Commission vote.” Clyburn said in a statement it was “facile and bull-headed” to move forward on the order without seeking comment on how the CRA affects the proceeding. Clyburn noted this was the first time the CRA has been used to reject an FCC order. “I must disagree both with the simplistic treatment of the Congressional Review Act found in this item, and more significantly, leaving out any requirements for broadband providers,” she said. “I believe the better course would have been to close out the existing proceeding (or initiate a new proceeding) to come up with another holistic approach to voice and broadband.” Key questions remain unanswered, Clyburn said. “Are aspects of the legacy voice rules substantially similar to the harmonized rules the Commission adopted last year?” she asked. “Does the CRA work to undo the modified adopted rule but leave in place the extinguishing of the original rule? We do not grapple with any of these fundamental interpretational issues.” Commissioner Mike O’Rielly voted for the order but didn’t issue a statement. The 2016 rules, opposed by the two FCC Republicans, were seen as ripe for early rejection by the FCC, absent the eventual CRA, in the days after Donald Trump was elected president (see 1611090034). “The FCC has provided confirmation for consumers that broadband providers are obligated to protect their customers' private information," a USTelecom spokeswoman said. "Consumers deserve and expect consistent, clear privacy rules that don’t stifle economic growth or innovation and apply uniformly across the entire internet ecosystem.”

Net neutrality has broad agreement despite battles between "antagonists on the letter of the law," wrote Fletcher Heald telecom attorney Don Evans, in a commentary distributed via a media relations group. He said widely supported principles include: companies shouldn't be allowed to block or throttle legitimate traffic based on content; access rules, prices and conditions should be transparent to users; and internet access rates can't become "unreasonably high" due to the dominance of a provider. Evans acknowledged disagreements over whether the FCC or FTC should enforce some safeguards, and over whether personal customer data should be allowed on an opt-in or opt out basis, hoping the agencies can work out a single privacy approach. He said paid prioritization treatment is disputed, but a "compromise is within reach." Ideally, he said, Congress would update "outdated" statutory definitions; if not, "a modified form of the Title II common carrier model would fit best," with forbearance from "virtually all" telecom regulation. While the previous FCC seemed to pursue this approach, it "ended up tilting too far toward regulation," he said

The FCC electronic comment filing system was the victim May 8 of a "non-traditional" directed denial-of-service attack, Chairman Ajit Pai said in letters released Tuesday to Sens. Ron Wyden, D-Ore., and Brian Schatz, D-Hawaii, in response questions the two asked after last month's ECFS cyberattack (see 1705090063). Pai said the DDoS attack targeted the ECFS application program interface that's normally used by automated programs or bots for bulk filings. The FCC didn't have the technical option of blocking or removing the bots hitting the API and instead increased API capacity. Pai said the agency "continue[s] to research additional solutions to strengthen ECFS' controls." Pai said the FCC has multiple commercial services and tools for protecting its systems from DDoS and other cyberattacks, but "the non-traditional DDoS that we experienced is quite different than typical attacks in that it used legitimate commercial providers to introduce bots and poorly structured queries to overload the system." Pai said the cloud-based ECFS typically receives close to 10,000 comments a day, but its record is more than 400,000 comments on May 11, "showing the system can scale to accommodate a large number of visitors when other external factors are not present." House Communications Subcommittee ranking member Frank Pallone, D-N.J., separately urged the DOJ and FBI to investigate whether comments filed under stolen identities broke federal law (see 1706280043).

The Senate Commerce Committee's move to temporarily delay a vote on NTIA administrator nominee David Redl at a senator's request drew a mixed reaction Wednesday among industry lobbyists. A Senate Commerce spokesman didn't identify the senator who sought the delay but informed sources said Sen. Ted Cruz, R-Texas, asked for it over his ongoing concerns about implications of the now-completed Internet Assigned Numbers Authority oversight transition (see 1706280027). Senate Commerce is aiming to place Redl's confirmation on the docket at the committee's next scheduled markup session after its planned Thursday meeting, the spokesman said. The aide said the senator didn't place a full-blown hold on Redl's nomination but was seeking “additional time to review information” before a vote. Cruz focused on those concerns during Redl's confirmation hearing earlier this month, asking whether Redl believes the oversight handoff was a “wise and prudent decision” (see 1706080046). Cruz was the most vocal Senate critic of NTIA's decision last year to move forward with the transition process, but it's “strange” that he would seek a delay on Redl given that President Donald Trump's administration indicated it sees no feasible way to rescind the transfer now, said one communications lobbyist. Another lobbyist said it was at least “good news” that Cruz agreed to a delay of the vote on Redl rather than placing a hold on it. Redl faced multiple IANA transition-related questions post-hearing from Senate Commerce Chairman John Thune, R-S.D., but none specifically from Cruz. Cruz's office didn't comment.

FCC Commissioner Mignon Clyburn voiced concern on HBO about video visitation policies of correctional facilities that have ended in-person visits to inmates. Appearing on Vice News Tonight in a YouTube clip circulated by her office, Clyburn criticized inmate calling service charges as "the most glaring case of market failure I have ever seen in my 18 years as a regulator." She said most communications users have a choice of providers, but inmates and families “are literally captive," including to video visitation policies using Skype-like connections. "More than 70 percent of local facilities that have instituted this model, they no longer have or allow in-person visit," she said in the segment, which cited over 600 facilities in 46 states as using video visitation. A sheriff defended video visitation as improving prison security and saving staff time. Asked why other people should care, Clyburn said, “You are paying, every month, every year to keep this model that is broken, intact. You don’t think it affects you but that child who acts out, that might escalate. That person who comes home, they might act out if they don’t adjust.”

The Phoenix Center said the rate of broadband speed increases declined due to the FCC net neutrality order reclassifying broadband under Communications Act Title II. The group cited a net neutrality advocate as trying to score political points after NCTA "recently made the unsurprising observation that broadband speeds in the U.S. continue to rise" without referring to the regulatory debate. "Seeing all things through the lens of Net Neutrality, Public Knowledge Senior Vice President Harold Feld immediately laid claim to the trend, asserting that the data in NCTA’s post supports the FCC’s reclassification decision," said a Phoenix release Tuesday. "According to Mr. Feld, the speed trend confirms that the 'Title II Virtuous Circle' is 'totally working' because the rate of increase has accelerated since the FCC adopted the Title II Reclassification Order in February 2015.” Saying "an empirical question requires an empirical answer," Phoenix released a study by Chief Economist George Ford that it said subjects Feld's "theorem" to tests using Akamai speed data. "Data reveal a statistically significant decline in the rate of average broadband speed increases for the U.S. subsequent to the 2015 Open Internet Order," said the release. Ford said that "but for" the FCC order, "U.S. broadband speeds would have been about 10% higher -- or about 1.5 Mbps faster -- on average." Feld, who passed along two links (here, here), replied: "Let us savor the irony that I find myself believing NCTA when they tout their own successes, while Phoenix Center sets out to demolish NCTA's blog post. It is apparently easier for Phoenix Center to believe that NCTA are liars who cannot be trusted to summarize a report from Akamai than to simply admit they are wrong about net neutrality and Title II."