Archive:May 2011

Administrative delays continue to plague the publication of the FCC’s controversial Net Neutrality Order adopted back in December 2010. According to agency observers, ongoing negotiations with Internet service providers and the need for OMB to approve the rules’ complex information reporting requirements may push the publication date of the regulations into the Fall.

The official publication of the regulations in the Federal Register will enable net neutrality opponents to launch long-awaited legal and legislative challenges against the Order. Even as publication remained pending, Verizon and Metro PCS each appealed the Order in the D.C. Circuit, contending that the FCC exceeded its statutory authority when it imposed the new regulations. The D.C. Circuit dismissed the suits without prejudice last month because the companies filed prior to the Order’s publication, but Verizon indicated that it plans to refile its challenge once the rules are published in the Federal Register. 

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The Senate Judiciary Committee unanimously voted to approve legislation aimed at shutting down “rogue” websites selling counterfeit goods or offering pirated content. The PROTECT IP Act would authorize the Justice Department to seek court orders prohibiting American Internet service providers from offering access to infringing sites. The Act would further allow content owners to prevent online advertising services and credit card companies from dealing with websites “dedicated to infringing activities.” The new bill represents a less sweeping version of the abandoned Combating Online Infringement and Counterfeits Act (“COICA”) bill, which would have permitted the government to seize domain names involved in copyright infringement.

While some media watchdog groups greeted the proposed reforms with guarded optimism, other organizations expressed lingering concerns over the constitutionality of the Act. Critics note that the definition of a website “dedicated to infringing activities” includes sites which they argue play too small a role in the infringing activity. Reports indicate that the threat of broad enforcement may drive leading Internet search providers like Google to challenge the bill if enacted.

Proponents of the bill, such as Sen. Patrick Leahy (D-VT), contend that the scope of the legislation remains narrow and will only target the “worst-of-the-worst” infringing websites. The proposal enjoys strong support from manufacturer associations and the Chamber of Commerce which blame rogue sites for job losses and recent market declines. The National Association for Broadcasters recently joined the fight in favor of the bill, citing the need to combat widespread piracy of movie and television content. Whether such bipartisan support and industry backing will be enough for the PROTECT IP Act to succeed where its predecessor failed remains to be seen.

With expanding broadband as its defining priority, the FCC is taking a number of steps to facilitate the deployment of broadband facilities. We recently wrote on the FCC’s new pole attachment order, intended to expedite and lower the cost of access to utility poles. In a companion Notice of Inquiry, published today in the Federal Register, the Commission will be exploring ways that local governments and other authorities can help improve rights-of-way access and facility siting, both of which are key to mobile broadband deployment. Comments on the NOI are due by July 18 and Replies are due August 30. 

To give the FCC’s action some context, it has been estimated that the wireless industry has deployed some 250,000 cell sites in the U.S. in the last 25 years. With 4G deployments, which require sites deeper into the network, one analyst estimated that the country will need 2.4 million sites by 2020 to support the expected level of mobile broadband traffic. For those who remember the battles a few years back between the telecom industry and local governments, as well as agencies managing federal lands, a real question exists as to how that all gets done.

Enter the FCC and the facilities deployment NOI, which has identified and seeks comment on various points of contention between industry and government affecting broadband buildout, in an effort to identify a comprehensive solution. These include timeliness and ease of the permitting process; reasonableness of rights-of-way and other charges; outdated ordinances and statutes, including the treatment of small antenna systems on existing facilities (known as Distributed Antenna Systems or DAS); differing regulation between rights-of-way access, including traditional pole attachments versus wireless facilities siting; and opportunities for FCC intervention and best practices.

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With all five FCC Commissioners scheduled to appear before the House Subcommittee on Communications and Technology today, the majority staff of the Committee on Energy and Commerce released a memorandum proposing significant changes to the FCC’s operating procedures.  According to the memorandum, the proposed reforms will streamline the Commission’s rulemaking processes and provide for more public input before the agency renders its decisions.  A few of the key proposals recommended in the memorandum include:

1.      Requiring the FCC to initiate all rulemaking proceedings with a notice of inquiry instead of a notice of proposed rulemaking. This mandatory prerequisite before the FCC could propose rules would require more deliberation by the agency before it adopts final rules.

2.      Obligating the FCC to publish the text of proposed rules for public comment before adopting any final rule.  In addition, agenda items scheduled for a vote by the FCC would be published in advance of any agency meeting.

3.      Establishing minimum comment and review periods for all proposed rules.  The FCC would also be required to render rulemaking decisions by set deadlines.

4.      Allowing a bipartisan majority of FCC Commissioners to set agenda items for consideration.  This proposal would replace the current process where the FCC Chairman holds the initial power to designate an agenda item for consideration. This proposal could also have the effect of requiring a supermajority of Commissioners to approve agenda items (although FCC Commissioner votes do not always fall along partisan lines).

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