Wheeler Offers Timetables, Legislative Ideas During Long House Hearing

“We’ve missed fall,” the original proposed timeline for developing rules, but mapping privacy responsibilities “into the IP world is something that I hope we’ll be able to begin to surface in proposals early next year,” Wheeler said. Republican commissioners and lawmakers outlined concerns about that agency role. “We’re going to have to provide more clarity” but existing guidance “is insufficient today,” warned Commissioner Jessica Rosenworcel. “We have complementary jurisdiction with the FTC and we’ve worked collaboratively, meeting on a monthly basis,” Commissioner Mignon Clyburn said. Privacy expertise at the FCC is “low,” Commissioner Mike O’Rielly said, worrying of damage.

Wheeler affirmed that the special access proceeding will be a priority for the FCC during the rest of the Obama administration, following its data-gathering efforts on the subject. “Boy, there’s a term that doesn’t say anything,” Wheeler said of the phrase to Rep. Mike Doyle, D-Pa., who urged action on the proceeding. “We ought to call it what it is. These are services that are essential for competition.” Wheeler expects “we will close this rulemaking by the summer, clearly,” he told Rep. Doris Matsui, D-Calif., of the agency’s look at spectrum above 24 GHz. He anticipates another rulemaking on additional higher spectrum bands.

Several lawmakers asked about developments in the FCC Downloadable Security Technology Advisory Committee (DSTAC), created by last year’s satellite TV reauthorization law. “My content producers in Nashville have a lot of concern about this,” said Commerce Committee Vice Chairwoman Marsha Blackburn, R-Tenn., of possible plans that she called “similar to the AllVid concept considered by the commission in 2010.” She asked if it would allow circumvention of copyright protections that apply to traditionally regulated services. “AllVid was an idea from half a dozen years ago,” Wheeler said, assuring her it's no one’s goal to thwart security behind “the sanctity of copyrights” and said policy makers have to protect those rights. “We’ve had a really fulsome DSTAC process,” Wheeler said. “Our lawyers believe the FCC has disregarded the clear directive in the STELA Reauthorization Act of 2014 and expanded the scope of the DSTAC working group beyond what was ever intended,” said Communications Subcommittee Chairman Greg Walden, R-Ore.

Wheeler's Recommendations

“We are working with NAB on a joint [pirate radio] task force,” Wheeler said, touting 240 enforcement actions. “But we need more tools. … We need to have consequences for those who facilitate those stations open up.” Wheeler said, “Congress could make it illegal to aid or abet pirate radio operations,” which would provide “significant means of thwarting the continued growth of pirate radio.”

Congress should also pass legislation updating U.S. emergency communications operations, Wheeler said, invoking the Paris attacks. Wheeler pointed to the legislation from House Commerce Committee ranking member Frank Pallone, D-N.J., as a reminder of the importance of network resilience (see 1511160055). “It’s worthy of public hearings,” he said.

ISIS members “are really trying to use the Internet and all of the social media to intimidate and beat us psychologically,” Rep. Joe Barton, R-Texas, told Wheeler. “Isn’t there something we can do under existing law to shut those existing sites down? … They’ve threatened to attack this very city.” Barton, a former Commerce Committee chairman, wondered if lawmakers might “need on a bipartisan basis [to] give additional authority” to the FCC to regulate these websites. Wheeler told Barton he is unsure FCC authority currently could allow picking and choosing websites to shut down and also told other members the agency has no interest in regulating edge providers. But “we need to have some kind of a big data capability of determining what’s happened to our network out there,” Wheeler said, citing recent reports of fiber cuts in the Bay Area. “We don’t have the ability to use that to go for big data, to have big data analysis.” Rep. Jerry McNerney, D-Calif., worried about a “knee-jerk” response from government officials involving cyber policy and backdoor policies, but Wheeler assured him the “slow process” of regulatory agencies helps mitigate knee-jerk reactions.

“FirstNet has to get its act together,” said Rep. John Shimkus, R-Ill. “They’re on the hook if we have another major event. … Shame on us and shame on FirstNet and shame on the commission if we have another event and we cannot communicate. We all need to have our shoulders on the wheel.”

Communications Shortfall?

Rep. Bill Johnson, R-Ohio, accused the FCC of not helping appropriators with drafting language for a policy rider that would prohibit regulation of broadband rates. “Completely inappropriate,” Johnson said. Wheeler said he was unaware of this request and apparent refusal. He also mentioned he saw such riders as unnecessary.

Commissioners Ajit Pai and O’Rielly slammed lack of relevant communication within the agency and particular struggles with receiving information from the Enforcement Bureau. The issue “is obviously disturbing to the committee,” Walden said, prompting Wheeler to claim there are legitimate reasons for commission practice involving law enforcement. “I have security clearance equivalent to any member of the Enforcement Bureau,” Pai said. O’Rielly only heard ideas from the bureau on pirate radio two weeks ago, around when this hearing was announced, he said, lamenting what he saw as general lack of responsiveness. Clyburn mentioned meeting with the bureau staff every two to three weeks discussing what they refer to as “hot topics,” access that Rosenworcel said she also possessed. Communications Subcommittee Vice Chairman Bob Latta, R-Ohio, asked her “how current is that information in the Enforcement Bureau?” Clyburn said it depends on the status of the item. “What I’m talking about is a list of open investigations” sometimes not presented for a vote, Pai said.

Staffers for Rep. Chris Collins, R-N.Y., called the bureau and asked for an update on pirate radio, Collins said, recounting an answer he deeply disliked: “‘We’re not handling that, you will have to call Mr. Wheeler’s personal office to find out what’s being done on pirate radio.’ My perspective? That is an embarrassing run-around, disrespectful to my office for sure.” Wheeler agreed it was unacceptable.

O’Rielly cited the memorandum of understanding announced Monday between the FCC and FTC on consumer protection (see 1511160067). FTC staffers learned of it last Thursday but “I learned of it yesterday morning,” O’Rielly said. “It’s just a lack of sharing.” O’Rielly, Pai, Rosenworcel and Clyburn all said they learned of the MOU Monday. “I’ve been working on it for 18 months,” Wheeler said. “The reality is it was signed yesterday.” This MOU “replaced a previous MOU,” Wheeler added, citing what he judged an “excellent working relationship” with the FTC. He cited cramming and the authority the FTC has over non-common carrier activities of common carriers as key areas of coordination.

“They all four are capable people” and able “to handle that information,” argued Rep. Mike Pompeo, R-Kan. “I hope I was not giving the impression they are not trustworthy,” replied Wheeler, emphasizing their regular bureau briefings.

NAB pushed back against an assertion from Wheeler that it supported the 30-month repacking deadline after next year’s planned broadcast TV incentive auction. “Chairman Wheeler's statement does not tell the whole story,” an NAB spokesman said. In January 2013, NAB “asserted that the FCC would need at least 30 months for repacking, and that it should use the $1.75 billion relocation fund as a budget for repacking -- estimating that could cover 400-500 stations,” said the spokesman. But situations have changed, and since then, “the FCC has released repacking simulations suggesting that well over a thousand stations (more than twice as many as anyone anticipated) could need to move,” the agency settled on a hard deadline for moving and an NAB study, shared months ago with the FCC, “analyzed how long it would take to conduct a nationwide repack," said the spokesman.

Rep. Adam Kinzinger, R-Ill., pressed Wheeler on the $1.75 billion relocation fund, which Wheeler insisted the FCC is limited to. But if insufficient, plans could include “maybe coming back to Congress and saying, 'Hey, there are some judgment calls here that didn’t work out,'" said Wheeler. "I don’t want to get into a situation where you’re picking and choosing.” If the 30-month deadline can't be met, no FCC commissioner said they would let broadcasters be forced off the air.