Former FCC Chairman Tom Wheeler criticized proposals to close the set-top box proceeding in a tweet Tuesday that referred to set-top fees as a “Pai Tax.” “Removing set-top box rule victory for Cablewood over consumers,” Wheeler tweeted. “$200 million Pai Tax on helpless cable subs. Trump helping little guy??” Pai said Tuesday staff were reviewing the set-top proceeding, among other items pending from the Wheeler administration. Pai last week removed the set-top box draft among other controversial orders from circulation (see 1701280001). The FCC didn't comment Tuesday.

NARUC and 12 states said an FCC Lifeline order improperly bypassed state authority to designate USF-eligible telecom carriers (ETCs) under the federal Communications Act. NARUC said the commission's Lifeline broadband provider designation process order "displays a purposeful disregard of the Congressional scheme and lack of reasoned decision making" and deserved no judicial deference under the Chevron precedent. "Congress specified that State commissions, in the first instance, designate all ETCs," said the state regulators' association brief (in Pacer) Monday to the U.S. Court of Appeals for the D.C. Circuit in NARUC v. FCC, No. 16-1170. The order "claims to 'preempt' that §214(e)(2) State procedure based on the facially illogical claim that this Congressional mandate 'thwart[s] federal universal service goals.' Instead, the Order permits only the FCC to designate a new category of the federal Lifeline carriers -- Lifeline broadband internet access service providers," a process that also "undermines State universal service programs, service quality to the end-user, and increases the chances for ETC fraud and abuse," NARUC said. It asked the court to vacate the designation process and other aspects of the order, including FCC decisions giving federal ETCs the initial say over low-income consumer access to state Lifeline subsidies and using forbearance authority to eliminate state service mandates. Twelve states led by Wisconsin's attorney general filed another brief (in Pacer) saying the order "attempted to amend federal law by regulatory fiat to increase its own authority, while taking away the States' statutory rights." Joining were officials from Arkansas, Connecticut, Idaho, Indiana, Michigan, Mississippi, Montana, Nebraska, South Dakota, Utah and Vermont. An intervenor brief from the National Association of State Utility Consumer Advocates is due Monday. The FCC brief is due March 16.

A White House spokeswoman confirmed that President Donald Trump’s executive order limiting federal regulations isn't intended to apply to the FCC, as expected (see 1701300064). Critics piled on to the order, which would require two regulations be abolished for every one issued and was signed Monday. “Creating an arbitrary one-in-two-out rule utterly disregards the substance and purpose for existing regulatory protections and the benefits they can provide to consumers,” said Consumer Federation of America General Counsel Rachel Weintraub. SumOfUs Campaign Manager Nicole Carty said the order shows the White House’s “true agenda” is “to cater to the interests of big business and the nation’s wealthiest at the expense of public safety, equal protection under the law, and an economy that works for all Americans.” Issue One Chief-Policy Meredith McGehee issued a statement saying: “This whiplash-inducing action comes less than 48-hours after the president signed an ethics executive order Saturday to prevent his top administration officials from lobbying the administration once they have left.” Sen. Rand Paul, R-Ky., joined other Capitol Hill Republican fans of the order. It’s “a refreshing and long-overdue change from the big government status quo in Washington,” Paul said.

Chairman Ajit Pai assured WTA that rural broadband deployment is a top FCC priority. Pai responded to a tweet by the former Western Telecommunications Alliance. “Looking forward to working with #Congress, @WhiteHouse and @AjitPaiFCC to further deploy broadband in rural America,” the group tweeted. “Likewise, @WTAdvocates!” Pai tweeted. “Rural broadband is a top priority for me; I look forward to working with you to address it.”

The FCC should update its dated equal employment opportunity rules to allow jobs posted on the internet to be considered “widely disseminated,” said a host of broadcast commenters in docket 16-410 in time for Monday’s comment deadline. “Requiring broadcasters to continue to promote jobs through outdated mediums such as classified ads is an unnecessary burden, and one which should be revisited in the digital age,” said Sinclair. “Punishing broadcasters for focusing their recruitment efforts online in lieu of less popular methods is counter-productive.” So many sources for job postings have moved online that it’s now difficult to comply with rules that require job postings be widely disseminated outside the Internet, Nexstar said. “Newspaper employment ads often produce no responses and are far more costly than available internet sources,” said the University of Northwestern-St. Paul. The current rule perpetuates a “false dichotomy” between online-only sources and the online presence of brick and mortar businesses, Raycom and Meredith said. The Multicultural Media, Internet & Telecom Council agreed that the rules should be updated but added some caveats. The FCC needs to make sure the job notices are widely available and don’t use too much insider jargon, said MMTC. ”The online postings must use common natural search terms like ‘broadcast jobs’, so they will not be hidden in the all-too-common online ‘echo chambers’ that now separate us from one another online.” The agency also should take steps to make sure job postings stay open for a sufficient amount of time, and continue to encourage broadcaster relationships with “resources that are likely to include diverse candidates,” said the group.

While an FCC staffer suing the agency for workplace retaliation (see 1609300016) obviously suffered "frustration with her employment and her chronic inability to work cooperatively with colleagues," she didn't suffer any violation of her rights, the DOJ Civil Division said in a motion (in Pacer) Friday in U.S. District Court in Washington seeking summary judgment on Sharon Stewart's complaint. DOJ said that while the FCC doesn't condone its workers looking at nude or semi-nude images in their cubicles, that Stewart sometimes caught a glimpse doesn't create a hostile work environment -- especially when a co-worker doing such viewing tried to hide the images from her. Instead, the plaintiff is "cobbl[ing] together a hostile work environment claim" even though the viewing habits weren't directed at all at her. It said there's no evidence that no one took any action on Stewart's complaint because of her gender or other protected characteristic, as a hostile work environment claim requires. The agency also said that while Stewart has argued she was denied performance bonuses in 2012 and 2015 as a form of retaliation, she also was disciplined for misconduct in both of those years, so the FCC "had a legitimate, non-retaliatory reason for its actions." Justice disputed that Stewart was retaliated against when she was relieved of her duties regarding Section 610 reports -- annual lists of 10-year-old agency reports -- since the reports were put on hold for years and no one at the FCC was doing them. Regardless, removal of such administrative responsibilities doesn't count as materially adverse since there is no proof they would have resulted in Stewart's being promoted, DOJ said. The motion also retells multiple past equal employment opportunity and other complaints Stewart filed against co-workers and supervisors when she worked at the Department of Health and Human Services and then at the FCC since starting there in 2001. Stewart's counsel, Noah Peters of Bailey & Ehrenberg, emailed us Monday, "We look forward to responding to the Agency’s motion and are confident we will prevail."

ISPs and the groups that represent them are proposing privacy principles to the FCC as an alternative to controversial 2016 rules. The principles include transparency, consumer choice, data security and the need for data breach notifications, a news release said. “These principles are consistent with the FTC’s privacy framework, which has proved to be a successful privacy regime for many years and which continues to apply to non-ISPs, including social media networks, operating systems, search engines, browsers, and other edge providers that collect and use the same online data as ISPs,” the Friday release said. “That framework has protected consumers’ privacy while fostering unprecedented investment and innovation. The principles are also consistent with the FCC’s May 2015 Enforcement Advisory, which applied to ISPs for almost two years while the FCC’s broadband privacy rules were being considered.” Advocates for Rural Broadband, Altice USA, the American Cable Association, AT&T, Charter Communications, Citizens Telephone and Cablevision, Comcast, Cox Communications, CTIA, ITTA, NCTA, NTCA, T-Mobile, USTelecom, Verizon, VTX1 Cos., the Wireless ISP Association and WTA were among those that endorsed the principles. “As we previously noted, the framework adopted last fall by the FCC significantly departed from the FTC regime, most importantly in the treatment of web browsing and app history data,” said Joan Marsh, AT&T senior vice president-federal regulatory, in a blog post. “The FCC’s order failed to recognize that consumers want their information protected based on the sensitivity of the information, not the entity collecting it. The FCC’s divergent, and illogical, approach will serve only to confuse consumers, who will continue to see ads based on their web browsing history collected by edge providers even after being told by their service provider that their consent is required for use of such information.”

House GOP leadership is privately saying that any Congressional Review Act resolution of disapproval of FCC ISP privacy rules must come with some assurances that such a resolution could make it through the Senate, one telecom industry lobbyist told us Monday. The lobbyist thought some GOP senators would step up but referred to mixed signals on whether the bicameral GOP leadership offices really want to use the tool -- which would nix the regulations and prevent the FCC from developing similar ones absent congressional authorization -- on the rules at all. The lobbyist saw potential for securing all Republican senators' support and that of some Democrats. Coalitions of industry and free-market groups sent Congress two letters on the topic last week (see 1701270062 and 1701260042). Some Capitol Hill Democrats and public interest advocates have slammed the idea of using this tool against the rules. House Majority Leader Kevin McCarthy, R-Calif., is seen as taking point on how to advance with these resolutions. GOP leadership aides from multiple offices didn't comment. “Congress should act to repeal those rules with a resolution of disapproval under the Congressional Review Act,” wrote Scott Cleland, chairman of ISP-funded NetCompetition, in a blog post for The Hill Monday, calling the FCC rules a mess that consumers cannot understand. “Any representative or senator that is trying to make sense of this issue need only ask one question: How does it protect consumer privacy when the FCC makes an ISP treat some consumer information as confidential, but allows every other company in the world to treat that same information nonconfidential?”

FCC Chairman Ajit Pai withdrew a draft report on advanced telecom deployment (ATC) under Telecom Act Section 706 from the agency's circulation list last week. Then-Chairman Tom Wheeler circulated a draft report Jan. 9, which was due to be released by Tuesday (see 1701130069). The final Section 706 report under then-Chairman Julius Genachowski was issued in 2012, and Wheeler's first such report didn't come out until January 2015, so "delay is not atypical in a transition," said a commission spokesman. Network engineer Richard Bennett, who filed comments on an August notice of inquiry, emailed: "The Commission should take as much time as it needs to do the job right. A hastily-prepared, politically-driven report doesn’t do the nation any favors. If 98% of the nation has ATC, as most surveys show, the report should say so." Parties had filed mixed comments on whether advanced telecom capability was being deployed adequately to satisfy the Section 706 mandate (see 1609070039 and 1609220058). Also no longer on circulation are orders on business data services and set-top box rules (see 1701280001).

Center for Democracy & Technology President Nuala O'Connor called the Trump administration executive order that removed Privacy Act protections for foreigners "shocking" (see 1701260015). "The message this action sends is clear: people who don’t hold a U.S. passport or current green card are not entitled to the same dignity as those of us who do," she said in a Friday blog post. O'Connor said the privacy protections were extended to those who aren't U.S. citizens or permanent residents when she worked as the Department of Homeland Security's first chief privacy officer during the George W. Bush administration. It gave all people the ability to request their information held by the department, she said. Beyond respect for human dignity, the action is "profoundly bad for American business," said O'Connor. She said it sends a "clear shot across the bow of our trading partners and allies" and puts the "fragile" EU-U.S. Privacy Shield data-transfer agreement at risk. The White House again had no comment on this issue.