Open Internet rules should prohibit ISPs from charging access fees to terminate traffic, Netflix officials told an aide to FCC Chairman Tom Wheeler and several FCC officials on July 30, said an ex parte filing (http://bit.ly/1nlFcLw) posted in docket 14-28 Monday. The company met with officials from the Engineering and Technology, Strategic Planning & Policy Analysis and General Counsel’s offices, the Wireline Bureau and the agency’s chief technology officer, said the filing. Netflix officials involved in the meeting were Ken Florance, vice president-content delivery, Chris Libertelli, vice president-global public policy, and Corie Wright, director-global public policy, along with counsel Markham Erickson, Steptoe & Johnson partner. It’s a myth that Netflix deliberately chose to deliver traffic over congested routes, the company said in the filing. “In the case of Comcast, Netflix purchased all available transit to reach Comcast’s network. Every single one of those transit links to Comcast was congested (even though the transit providers requested extra capacity). The only other available routes into Comcast’s network were those where Comcast required an access fee,” the filing said. However, Comcast thinks “Netflix’s definition of ‘available transit’ is an ideological one,” Comcast told us in a statement. There were many routes available “that would not have required any payment from Netflix to Comcast, which is how Netflix got its content to us, without issue, until it changed its practices,” Comcast said . “Netflix can choose to avoid congestion or inflict it. How Netflix routes its own traffic is all about improving their business model. Independent commenters have pointed out that Netflix commercial transit decisions created these issues,” the statement said.

Between 1,000 and 1,999 counterterrorism or counterintelligence subpoenas were issued by the FBI to AT&T during the first six months of the year, involving between 2,000 and 2,999 customer accounts, AT&T said in its transparency report (http://soc.att.com/1j8il6O) issued Friday. In addition, the company received up to 999 court orders under the Foreign Intelligence Surveillance Act affecting between 33,000 and 33,999 customer accounts in the last six months of last year. The company is allowed to release the statistics only as a range under the guidance issued by the Department of Justice, the report said. In addition to those National Security Demands (NSD), AT&T also received 115,925 criminal and civil federal, state and local government subpoenas, court orders and search warrants during the first six months of 2014, the report said. The company rejected, challenged or gave no or partial information in 31,097, or about a quarter of those non-NSD cases, the report said. The report did not say how many of the NSD cases it challenged or provided partial information.

AT&T again told the FCC the interconnection ecosystem developed “without any regulation to handle all of the traffic exchanged on the global Internet,” it said Thursday in an ex parte filing in dockets 10-90, 14-28 and 01-92 (http://bit.ly/1s7zWjL). AT&T pointed to cost implications of the exchange and carriage of Internet traffic “that has become significantly out-of-balance,” it said. Interconnection imposes substantial costs on network providers that involve far more than the meet point between networks, and “that are unrelated to ‘last mile’ Internet access costs, and that are not end user specific,” AT&T said in an attached presentation (http://bit.ly/1uLKXvA). Netflix said Open Internet rules should prohibit ISPs from charging access fees to terminate traffic. Some ISPs confused the issue “by conflating upstream degradation at the ISP’s terminating access point with larger interconnection or peering issues,” it said in an ex parte filing posted Thursday in docket 14-28 (http://bit.ly/1o8ZYCt). The allegation that Netflix causes congestion by deliberately choosing to deliver traffic over congested routes is false, it said. Reaching the subscriber via the subscriber’s last mile broadband ISP is the only means of reaching a subscriber, it said. AT&T and Netflix reached an interconnection agreement in May, the companies said in statements. The companies “have been working together to provision additional interconnect capacity to improve the viewing experience of our mutual subscribers,” they said. Netflix is paying AT&T to directly connect, “which should ease congestion and allow our mutual subscribers to have a much improved viewing experience,” a Netflix spokeswoman said.

Microsoft must provide U.S. law enforcement with emails stored overseas, the U.S. District Court in New York ruled Thursday after hearing oral argument, according to multiple reports. Microsoft in early June challenged a federal judge’s order to turn over a European customer’s data because it was stored in Dublin (http://wapo.st/UFFjLs). Technology companies and tech industry groups immediately denounced the decision, as many had supported Microsoft during its challenge. Verizon, which filed an amicus brief in the case (http://vz.to/1nXqjVz), released a statement: “These matters are very fact-sensitive, and while we have not received a request like this one before, if we were to receive a warrant from the United States Government compelling us to produce data stored by an overseas customer in our overseas data centers, we would challenge the warrant in court.” The Association for Competitive Technology (ACT) said the ruling will hurt the mobile app industry. “The court is out of step with global privacy concerns,” said ACT President Jonathan Zuck. “This has the potential to undermine the mobile app industry for which the cloud is critical. ... American companies now face an international backlash as a result of the court’s decision.” Microsoft said in a statement it will appeal the decision.

The FCC should grant Comcast a waiver allowing it to operate 3,583 new unlicensed national information infrastructure (U-NII) devices designed for one part of the 5 GHz band in another, Comcast said in a petition posted in docket 13-49 Wednesday (http://bit.ly/1tukd1f). The waiver would allow the company to operate U-NII-3 devices in the U-NII-1 band, it said. Though Comcast is working on creating access points that can use the U-NII-1 band, “the development and certification of such devices will take time, during which Comcast expects that customer demand for its Wi-Fi service will continue to skyrocket,” said the cable operator. In the meantime, Comcast wants the waiver so it can operate its U-NII-3 devices in the U-NII-1 band instead. “This waiver would serve the public interest by providing Comcast with immediate flexibility to use the U-NII-1 band, in addition to the U-NII-3 band, to provide outdoor Wi-Fi access to its customers,” said the company.

Basing net neutrality rules on Communications Act Title II would take away the FTC’s ability to enforce regulations like blocking or discrimination under consumer protection rules, FTC Commissioner Maureen Ohlhausen said Tuesday during a Federalist Society teleforum. The FTC exempts common carriers, said Ohlhausen, as she and Daniel Lyons, an associate professor at Boston College Law School, argued the concerns of net neutrality proponents could be addressed under antitrust laws. Title II would treat ISPs as common carriers. The FTC’s inability to take action wouldn’t “necessarily mean no action will be taken,” said Public Knowledge Vice President Michael Weinberg. The FCC would under Title II still be able to enforce regulations, said Weinberg, who argued Title II is the only way to enforce “robust” net neutrality regulations. Lyons said not all forms of prioritization are anti-consumer. If tradeoffs need to be made because of finite broadband capacity, a momentary delay would likely be more noticeable for video streaming like Netflix or a telehealth session than for email or a website, yet regulations that allow no prioritization would take a “first-come, first-serve approach,” Lyons said. The FTC has hundreds of cases involving the Internet and “it would be a shame” to lose the agency’s expertise, Ohlhausen said. Handling cases that affect consumers through antitrust laws would deal with issues on a “case-by-case” basis, Ohlhausen said. Not all problems that could arise involving blocking or discrimination would be anti-competitive issues that would fall under antitrust laws, Weinberg said. Another approach, basing rules on Section 706, poses unattractive alternatives, he said. Robust rules would likely be thrown out by the courts as imposing common carrier regulations without declaring companies common carriers, he said. Rules that could pass legal muster would not be strong enough to deal with concerns, said Weinberg, who noted that the FCC exists precisely because communications is so important a segment of society it deserves an agency to focus on it.

The FCC’s Consumer Advisory Committee released a statement Monday commending the FCC for its work on mobile device theft. The CAC recommended the FCC refresh consumer education materials “with regard to stolen smartphones to educate consumers about new technologies and best practices in mobile device security,” and coordinate “carefully planned and funded” public service announcement campaigns among other steps (http://bit.ly/WK8rCy). “Wireless device theft -- and particularly smartphone theft -- is a pervasive and devastating crime affecting millions of American consumers,” CAC said. In a second statement, CAC recommended that the FCC “closely coordinate” with other federal departments, independent agencies and program administrators “that oversee direct low-income consumer assistance programs” to align commission policies on universal service with other work being done to help low-income consumers (http://bit.ly/1rwf3h7).

Glenn Reynolds joined the NTIA as chief of staff, from USTelecom where he was vice president-policy. Reynolds is also a veteran of BellSouth and the FCC, where he was deputy chief of the Common Carrier Bureau and chief of the FCC’s Enforcement Division. Reynolds replaces Tony Wilhelm, longtime chief of staff who left in May and is now vice president-external relations at Affiniti.

U.S. surveillance programs are causing lawyers and journalists to significantly alter how they work, said Human Rights Watch (HRW) and the American Civil Liberties Union (ACLU) in a joint report released Monday (http://bit.ly/1k3GMGT). The report, based on interviews with numerous journalists, lawyers and U.S. government officials, details the steps that many have taken to secure confidential communications and sources, said a release (http://bit.ly/1l7tAvW). “The report finds that government surveillance and secrecy are undermining press freedom, the public’s right to information and the right to counsel, all human rights essential to a healthy democracy,” said HRW and the ACLU. “The US holds itself out as a model of freedom and democracy, but its own surveillance programs are threatening the values it claims to represent,” said Alex Sinha, Aryeh Neier Fellow at HRW and the ACLU. “The US should genuinely confront the fact that its massive surveillance programs are damaging many critically important rights."

The FCC hired a former senior adviser in the Democratic National Committee’s finance operations as a political appointee responsible for external relations, an agency spokesman said. He said Eric Feigenbaum, who has sat in on some recent net neutrality lobbying meetings, is barred from doing any fundraising under the Hatch Act. Feigenbaum didn’t respond to our request for comment, and the DNC had none other than to give his title there. Feigenbaum started July 7 as a political appointee in the Office of Media Relations, said the FCC spokesman Friday. His position involves soliciting input from and providing information to stakeholders, said the spokesman. According to a LinkedIn page that the FCC spokesman confirmed as Feigenbaum’s, he had been a senior adviser since March 2013, after working for Obama for America from April 2011 to February 2013. He was Mid-Atlantic finance director for the Obama group, the FCC spokesman said. Feigenbaum also was deputy national finance director at the Democratic Senatorial Campaign Committee from January 2009 to March 2011, and deputy regional finance director for the DSCC from February 2007 to January 2009, his LinkedIn page said. His “organizational strengths, together with his considerable outreach skills, make him a great addition,” the spokesman said. Feigenbaum was involved in two recent meetings on net neutrality, ex parte filings show. In a July 17 meeting, AOL executives met with Gigi Sohn, special counsel for external affairs; Philip Verveer, Wheeler’s senior counsel; Daniel Alvarez, Wheeler’s legal adviser; Sagar Doshi, Wheeler’s special assistant; Deputy Wireline Bureau Chief Matthew DelNero; and David Toomey, deputy director of legislative affairs, as well as Feigenbaum, an ex parte filing (http://bit.ly/1nRY84x) said. AOL pushed for the commission to rely on Communications Act Section 706 in crafting narrowly tailored net neutrality rules including a ban on pay-to-play when a broadband access provider has market power, the filing said. Title II should be used only as a backstop, AOL said. Feigenbaum was also involved in a July 16 meeting with Tekedra Mawakana, Yahoo’s global head of public policy, and Margaret Nagle, the company’s head of U.S. government affairs, according to an ex parte filing (http://bit.ly/1yRJHFT). The company made the same pitch as AOL, the ex parte filing said. Yahoo-connected individuals contributed $284,281 in the 2012 cycle, including $82,300 to the DNC and $75,968 to the Obama campaign, according to the Center for Responsive Politics (http://bit.ly/1nD1kFs). Neither AOL nor Yahoo would comment. — KM