You will find more information about the items on the January meeting agenda after the break:

Empowering Broadband Consumers Through Transparency – The ISP NPRM would propose rules to implement certain provisions in the Infrastructure Investment and Jobs Act (“Infrastructure Act”). Specifically, Section 60504 of the Infrastructure Act directs the Commission to “promulgate regulations to require the display of broadband consumer labels” to “disclose to consumers information regarding broadband Internet access service plans.” In accordance with that statutory mandate, the ISP NPRM would propose consumer labels consistent with a 2016 Public Notice (DA 16-357). In the 2016 Public Notice, the Commission set forth various required consumer disclosures related to fixed and mobile broadband services, including information about pricing, data allowances, broadband speeds, network management practices and fees. The Commission would also seek comment on the following issues: whether any changes should be made to the content of the consumer labels contained in the 2016 Public Notice; where the consumer labels should be displayed; how to ensure the accuracy of the content of the labels; and the effective date of the label requirements.

Connecting Tribal Libraries – The E-Rate Tribal Order would amend Sections 54.500 and 54.501(b)(1) of the FCC’s rules to clarify that Tribal libraries are eligible for E-rate support. Pursuant to Section 254(h)(4) of the Communications Act of 1934, as amended, a library may not receive preferential treatment or rates (such as under the E-rate program) unless it is eligible for assistance from a State library administrative agency under the Library Services and Technology Act (“LSTA”). The amended FCC rule would be consistent with a 2018 amendment to the LSTA which provided that Tribal libraries are eligible for assistance from a State library administrative agency. The Commission’s planned clarification about Tribal libraries’ eligibility for E-Rate support is intended to increase Tribal libraries’ participation in the E-Rate program and lead to more affordable access to high-speed broadband and a narrowing of the digital divide in Tribal regions. The E-Rate Tribal Order would also direct the Office of Native Affairs and Policy and the Wireline Competition Bureau, together with the Tribal Liaison at the Universal Service Administrative Company, to focus on outreach efforts and training for Tribal libraries. Finally, the Commission would implement measures to track Tribal libraries’ participation in the E-rate program.

Facilitating Better Use of ‘White Space’ Spectrum – The White Space Order would revise technical requirements governing how white space devices and white space databases work together to ensure that the licensed operation of wireless microphones is not subject to harmful interference. Under Part 15 of the FCC’s rules, unlicensed devices can operate on unused channels within the broadcast television spectrum and certain other areas of the spectrum where licensed wireless operations have not commenced (commonly known as white spaces), so long as they do not cause harmful interference. As a means to prevent harmful interference, white space devices must contact a white space database (administered by Commission-designated private entities) at least once per day to obtain a list of available channels and the associated maximum power level for those channels. In 2015, the FCC adopted rules to further protect the operation of licensed wireless microphones by requiring white space databases to push changes in channel availability to white space devices. In response to petitions asserting that the push notification is burdensome and technically infeasible, the FCC would replace that requirement with a requirement for white space devices to check the white space database once per hour to protect licensed wireless microphones. In addition, the White Space Order would deny a petition for reconsideration of the FCC’s Office of Engineering and Technology’s approval of Nominet UK (now RED Technologies) as a white space database administrator.

Updating Equipment Authorization Rules – The Equipment NPRM would propose to update equipment authorization rules to reference new technical standards. The Commission’s equipment authorization procedures ensure that radiofrequency devices operate without causing harmful interference. The FCC’s rules governing equipment authorization of radiofrequency devices incorporate several standards set by industry standard-setting bodies, such as the America National Standards Institute (“ANSI”) and the International Organization for Standardization (“ISO”). The Equipment NPRM would focus on standards that are referenced in the Commission’s equipment authorization rules that relate to the testing of equipment and accreditation of laboratories that test radiofrequency devices. In particular, the Equipment NPRM would seek comment on the following: (1) incorporating “American National Standard Validation Methods for Radiated Emission Test Sites; 1 GHz to 18 GHz” (ANSI C63.25.1:2018) as a new technical standard; (2) referencing a more current version of “American National Standards of Procedures for Compliance Testing of Unlicensed Wireless Devices” (ANSI C63.10:2020); and (3) transitioning to “Conformity assessment – Requirements for accreditation bodies accrediting conformity assessment bodies” (ISO/IEC 17011:2017) and “General requirements for the competence of testing and calibration laboratories” (ISO/IEC 17025:2017).

Please contact the authors or your Kelley Drye attorney for more information about these items or to participate in the proceedings.

As we covered extensively in several previous blog posts, one of the primary consequences of the case were questions about the limits of the FTC’s jurisdiction. The case mirrored a time when the Federal Communications Commission (“FCC”) took opposing positions in successive administrations regarding whether mobile data services and other Broadband Internet Access Services (“BIAS”) were subject to FCC regulation. One of the central questions underlying the case was which agency, the FCC or the FTC, could regulate AT&T’s mobile data practices. After the FTC won a Ninth Circuit decision that its jurisdiction reaches to non-common carrier activities of common carriers (and the FCC concluded that mobile BIAS was not a common carrier service), AT&T agreed to settle the FTC case. However, so long as the jurisdiction of particular services remains in doubt, or is subject to changing FCC positions, service providers will face potential overlapping enforcement activities by the two agencies.

The path to determining the FTC’s jurisdiction was long. In response to the FTC’s 2014 complaint, AT&T moved to dismiss the case, arguing that, because it is a common carrier, the Company is exempt from FTC regulation under Section 5 of the FTC Act. AT&T argued that the exemption in Section 5 for common carriers was “status based” – that is, that the FTC could not regulate any activities of a common carrier, even activities the FCC had subjected to limited or no regulation. The FTC responded by asserting that Section 5 of the FTC Act exempts only the common carrier activities of common carriers from FTC regulation.

Agreeing with the FTC, the district court denied AT&T’s motion to dismiss on March 31, 2015. The Company then appealed that decision to the Ninth Circuit Court of Appeals (“Ninth Circuit”). On August 29, 2016, a three-judge panel issued an opinion that reversed the district court’s decision and dismissed the case. The FTC then requested a rehearing en banc, which the Ninth Circuit granted on May 9, 2017. On February 26, 2018, the Ninth Circuit, sitting en banc, issued an opinion reversing its previous decision and giving the FTC broad authority to regulate practices not classified by the FCC as telecommunications services. It then remanded the case to the district court for further proceedings. AT&T settled the case before the District Court addressed the merits of the allegations.

Notably, AT&T commits to making refunds within 90 days to eligible customers without requiring a claims process. AT&T agreed to issue bill credits to current customers and to issue refunds to former customers. Any remainder not distributed will be deposited into a redress fund maintained by the FTC. Commissioner Rohit Chopra of the FTC issued a statement accompanying the settlement, in which he urged the FTC to pursue fraudulent practices by large and small firms alike, asserting that “scammers come in all sizes.”

Having settled with the FTC, AT&T is not necessarily out of hot water for alleged data throttling during this time period. In 2015, the FCC issued a $100 million Notice of Apparent Liability for Forfeiture (NAL) to AT&T over its mobile broadband data services and practices. The FCC also reached a $48 million settlement with T-Mobile on October 20, 2016 concerning a similar data throttling allegation regarding mobile data services. However, since the FCC’s leadership changed hands in early 2017, the Commission has not taken any action to finalize (or settle) the AT&T NAL. It remains pending, four years after its issuance.

Even with the appeal moving forward, action on net neutrality legislation continues on multiple fronts. While federal net neutrality bills may be stalled in Congress until after the mid-term elections, states continue to propose and adopt legislation and executive actions aimed at incentivizing BIAS providers to abide by the FCC’s 2015 net neutrality rules. These moves complicate the legal environment for BIAS providers as they attempt to navigate the non-uniform patchwork of state-level actions. The oral argument also comes less than a year after the Ninth Circuit’s decision giving the Federal Trade Commission broad authority over practices not classified by the FCC as telecommunications services, which includes BIAS (at least for now). A D.C. Circuit decision reversing the Order could undermine the FTC’s authority over BIAS providers and result in further legal challenges. In short, the oral argument represents only the next step in the continuing debate over the appropriate regulatory regime for broadband services and their providers. We will continue to track the appeal and report on any major developments.