Today:  FCC Commissioner O'Reilly on Net Neutrality, City of Seattle Rule in Internet Privacy

FCC’s O’Rielly On Net Neutrality, VoIP Regulation, and Preemption

In a speech before the American Legislative Exchange Council, FCC Commissioner O’Rielly spoke about Net Neutrality, municipal broadband, and preemption and federalism.  He offered some interesting insights into his thoughts on this matters, including the following. 

On Net Neutrality: “At the core of the Commission’s 2015 misguided order were three new “bright line” rules and a self-admitted catch-all provision… Especially problematic are the ban on paid prioritization and the roving enforcement authority embedded in the general conduct standard, both of which serve to provide the Commission unlimited and unchecked power to dictate every facet of America’s broadband offerings. Add to this the simple fact that the Commission preserved the right – despite the many opportunities to declare otherwise – to impose full-blown rate regulation, and you have the makings for how to kill the private sector broadband market. This cannot be allowed to stand.”

On Federalism and VoIP Regulation: “While I have spent a great deal of time and energy seeking to preserve federalism as it pertains to many important non-telecom matters, I just do not agree with its application as it comes to the Internet… I have difficulty when states or even localities try to insert themselves into Internet activities, such as IP voice calls. Voice over Internet Protocol, or VoIP as it is commonly called, is currently stuck in the no-man’s land of regulatory treatment. For numerous reasons, the FCC has not provided a thorough answer, giving some states the impression that they retain certain authority. The FCC previously declared that certain forms of VoIP were jurisdictionally mixed but mostly within the province of the FCC. But this was quite a while ago and even the resolution at the time did not sufficiently resolve the situation, at least in my opinion. The Commission should have just declared VoIP to be an interstate information service. This would certainly be consistent as I don’t see any possible way that the Commission can find the underlying broadband network to be an information service, per my earlier point, but not find the same to be true for VoIP. Arguably, VoIP is just an application not even subject to FCC jurisdiction much less that of individual states.  Until lately, VoIP’s jurisdiction hasn’t resurfaced as an issue. But that situation has changed recently as a number of state regulatory commissions have sought to reopen the debate… Such inappropriate jurisdictional overreaches by states should be nipped in the bud, and I have talked to the Commission’s new Chairman about doing just that.”

And on broadband privacy: “.. a number of states have tried recently to rush in to enact privacy regimes for broadband providers. These actions seem to be in response to Congress’ passage and the President’s signing into law of the Congressional Review Act (CRA) legislation pertaining to the previous Commission’s broadband privacy rules. While I don’t see a need to revisit the CRA arguments here, suffice it to say that I believe states should be similarly barred from enacting their own privacy burdens on what is by all means an interstate information service.”

City of Seattle Rule On Internet Privacy

Seattle Mayor Murray directed the implementation of a Seattle IT rule, which requires the city’s key internet service providers to obtain permission from their customers before selling web browsing history and personally identifiable information at a detailed or aggregate level. This rule is intended to reinstate the FCC’s privacy rule that that was eliminated through the Congressional Review Act.  See the Regulatory Mix dated 4/4/17.   The new rule states cable operators must obtain opt-in consent before sharing a customer’s web browsing history or otherwise using such information for a purpose other than providing a customer with their requested service.  Comcast, CenturyLink, and Wave Broadband have cable franchise agreements with the City of Seattle and will be subject to the new rule. Under the terms of the rule, these cable operators must report their compliance by Sept. 30, 2017 and annually thereafter. The rule also stipulates that any aggrieved person may begin a civil action for damages for invasion of privacy against any grantee.

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The Regulatory Mix, TMI’s daily blog of telecom related regulatory activities, is a snapshot of PUC, FCC, legislative, and occasionally court issues that our regulatory monitoring team uncovers each day. Depending on their significance, some items may be the subject of a TMI Briefing.