Phoenix Center President Larry Spiwak pushed back against the basing of net neutrality rules on Communications Act Title II, saying the proposal outlined by House Commerce Committee ranking member Henry Waxman, D-Calif., is "insidious." Waxman proposes to reclassify broadband as Title II and then forbear from the brunt of it, including sections 201 and 202. “While the FCC may forbear from sections 201 and 202, it cannot forbear from the mandates of sections 201 and 202, and it is these very mandates, not the numbers ‘201’ and ‘202,’ that expressly permit the paid prioritization that Waxman seeks so desperately to ban,” Spiwak said Thursday in an op-ed for The Hill (http://bit.ly/1rnx0NW). Spiwak said that “to proceed by reclassification with a gerrymandering of the commission's Section 10 precedent does nothing more than guarantee a third trip to the Courts of Appeal.” He attacked what he judges various legal deficiencies.
Senate Commerce Committee Chairman Jay Rockefeller, D-W.Va., inquired about the practices of social media app Whisper, which specializes in anonymous sharing of messages. “While Whisper may provide its users a unique social experience, the allegations in recent media accounts are serious, and users are entitled to privacy policies that are transparent, disclosed, and followed by the company,” Rockefeller said to WhisperText CEO Michael Heyward in a Wednesday letter (http://1.usa.gov/1uLkuZv), asking the company to brief committee staffers on its privacy policies. “It is questionable, at best, whether users seeking to post anonymously on the ‘safest place on the internet’ would expect that WhisperText has information sharing relationships with third parties such as media organizations.” Rockefeller expressed concern about allegations that the company has tracked locations of consumers who didn’t want to be tracked and created an office outside the U.S. to process user data despite a policy to the contrary. He also flagged the way the company partners with third parties and shares content. "We share the Senator's interest in protecting consumer privacy and will respond shortly," Heyward said in a statement, saying Whisper disagrees with allegations reported by The Guardian and welcomes "the discussion and opportunity to correct the record."
Senate Banking Committee Chairman Tim Johnson, D-S.D., and ranking member Mike Crapo, R-Idaho, asked Treasury Department officials and banking regulators what actions they’re taking to prevent data breaches within the financial system, in a letter Tuesday (http://1.usa.gov/1wtXm64). Treasury Secretary Jacob Lew and Federal Reserve Chairwoman Janet Yellen were among the officials copied on the letter. “The recent breaches show once again that no company is immune from the risk of cyberattack,” said Johnson in a Tuesday release (http://1.usa.gov/1uGxks9). “While financial institutions and retailers are at the front lines in protecting consumers’ information, the financial regulators must also ensure that financial institutions have the appropriate safeguards in place to keep consumers’ data safe,” he said. “I look forward to hearing more about the steps they are taking,” said Johnson. JPMorgan Chase said recently that 76 million households and 7 million small businesses were affected by a breach in June (see 1410060071).
The FCC needs to use a “light-touch Title II approach” to crafting net neutrality rules, applicable to wired and wireless services and banning paid prioritization deals, House Communications Subcommittee ranking member Anna Eshoo, D-Calif., told FCC Chairman Tom Wheeler in a letter Wednesday, consistent with her past statements on the issue. The approach “should include but not be limited to the use of Section 202, which explicitly states that ‘any unjust or unreasonable discrimination’ is unlawful,” Eshoo told Wheeler, referring to the Communications Act (http://bit.ly/1x9bXSL). “This approach should seek comment on whether to retain the use of other consumer protection provisions contained within Title II, including the preservation of universal service, the protection of privacy and the assurance of access for people with disabilities.” She argued against the idea that Title II is a “relic of the past” or “heavy-handed” in its nature, pointing to forbearance authority: “The Commission has used this forbearance authority often -- removing many legal obligations from Title II services like wireless voice, for example, but never abandoning the core nondiscrimination protections that are at the heart of the Communications Act.” She pointed to recent settlements the FCC has reached with AT&T and Verizon over mobile cramming and privacy. “Unless the Commission reclassifies broadband under Title II, it will not be able to take actions like these to protect consumers and businesses when it comes to their use of broadband and other modern communications services,” Eshoo said. Industry officials have strongly opposed such arguments, saying Title II would be onerous and that forbearance is no easy or assured path for the companies involved in providing broadband service. They also argue against applying the same standards to wired and wireless services.
Broadcaster lobbying expense exploded this latest quarter compared with the same time last year. NAB spent $3.98 million in 2014’s Q3, according to its lobbying disclosure form posted this week. A year earlier, NAB had reported spending $3.26 million, more than half a million dollars less. NCTA spent less on lobbying in 2014’s third quarter than it had a year before -- $3.81 million this latest quarter compared with $4.44 million a year ago. Both NAB and NCTA employ a wide range of lobbying firms and target a variety of priorities on Capitol Hill, both legislatively and in asking lawmakers to act on other fronts. NAB in particular has spiked in its outlays this past year, spending as much as $5.28 million in 2014’s first quarter and $4.65 million in the second, both higher amounts than what it spent in those quarters a year earlier. Both the cable and broadcast industries have been highly engaged this year in the reauthorization of the Satellite Television Extension and Localism Act, which expires Dec. 31.
In rewriting the Communications Act, “I would have a very skinny FCC,” said Robert Litan, a Brookings Institution nonresident senior fellow, speaking Wednesday at a Brookings Institution event in Washington on the Communications Act. Litan backs a “very minimalist role” for the agency, focused on its management of spectrum auctions and “I would have them administratively stop discrimination,” whether on the Internet or in traditional media spaces involving network owners blocking content, he said. Robert McDowell, a former Republican FCC commissioner and now partner at Wiley Rein, cautioned about the ease with which the FCC can escape “its congressional tether” and become “oligarchical,” citing the role of the courts in reining the agency in when needed. Litan, a former principal deputy assistant attorney general in the Justice Department’s antitrust division, scoffed at the FCC’s role in approving acquisition deals and said it should be nixed. Larry Irving, a former NTIA administrator and now consultant to telecom and information technology clients, resisted what he viewed as any “straight economic test” or one simply focused on consumer harm, calling communications the “lifeblood of a democracy.” They debated over how prominent the public interest component of the FCC’s role should be, with McDowell cautioning over a potentially “expansive” interpretation. “A straight economic test would frighten me,” Irving said. But the public interest standard should be clearer, he said, noting past challenges in finding the right balance. “It’s impossible,” McDowell said, cautioning against ex ante regulation and noting how much has changed even in the past decade. Irving referred to the many pieces of the FCC puzzle and said “the Communications Act gets most of them right.” But Irving would work to fix certain shortcomings at the agency, he said, referring to a need for expediency on certain fronts. He called efforts to clear federal spectrum “abysmal.” Litan predicted multiple possible drivers of a Communications Act overhaul on Capitol Hill, positing that net neutrality advocates could end up unhappy with the FCC’s rulemaking and ultimately go to Congress seeking a “fix” of the act. Alternatively, Republicans could take control of the Senate, Litan posited: “Imagine a scenario in which they win the presidency in 2016,” Litan said. “Maybe that becomes something the Republicans push because there’s no one to veto.”
Net neutrality regulation is “a terrible idea,” Sen. Orrin Hatch, R-Utah, said in the tech agenda he outlined for Congress, according to a news release Wednesday. “The last thing we need is government telling ISPs how to carve up bandwidth. Keep the Internet free and it will continue to drive our economy forward,” Hatch said at the headquarters of Overstock.com in Salt Lake City, in prepared remarks (http://1.usa.gov/1CW92ij). “In addition to promoting broadband investment, Congress should support policies that encourage increased deployment and adoption of mobile online services and content, including increased access to licensed and unlicensed spectrum.” Hatch, chairman of the Senate Republican High-Tech Task Force and a member of the Judiciary Committee, pressed Congress to address what he referred to as patent trolls through legislation, citing a need for “common-sense reforms to our patent laws -- including fee shifting, heightened pleading and discovery standards, and a mechanism to enable recovery of fees against shell companies.” There should be “a renewed focus to combat online piracy” and “responsible data stewardship,” Hatch said, backing a “long overdue” update to the Electronic Communications Privacy Act that would require a warrant for email searches. He backs a “streamlined” antitrust review process and tax overhaul, he said. Cybersecurity legislation should “provide proper incentives, like liability protection, to encourage the private sector to share cyber-threat information with the government,” he said. “Cybersecurity legislation must also strike the right balance between protecting our nation’s computing infrastructure and protecting individual privacy rights. ... A voluntary, non-regulatory approach is most likely to yield consensus legislation”
House Homeland Security Committee Chairman Michael McCaul, R-Texas, said he believes his National Cybersecurity and Critical Infrastructure Protection Act (HR-3696) may be “the one bill that passes this Congress and gets signed into law” during the upcoming lame-duck session. McCaul gave the bill an 80 percent chance of success, saying during a Tuesday Bloomberg Government event that behind-the-scenes discussions on HR-3696 in the Senate have been positive. The bill passed the House in July (see 1407290027). McCaul said Tuesday that HR-3696 has gained “so much support not only from industry, but from privacy groups” because it deals solely with facilitating cybersecurity information sharing between the Department of Homeland Security and the private sector. McCaul said he wasn’t sure what would happen to the House-passed Cyber Intelligence Sharing and Protection Act (CISPA) and its Senate counterpart, the Cybersecurity Information Sharing Act (CISA). Industry observers have said they're pessimistic that CISA (S-2588) can pass the Senate and be successfully conferenced with CISPA (HR-624) before the end of the 113th Congress (see 1407300030).
Comcast should pledge it won't enter into any paid prioritization deals, said Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. “In a May blog post, you wrote that Comcast does not intend to enter into paid prioritization agreements,” Leahy said in a Monday letter to Comcast Executive Vice President David Cohen (http://1.usa.gov/1CM52R9). “I welcome that assertion, but I remain gravely concerned that if such agreements are permitted, market incentives may drive Comcast and other Internet Service Providers (ISPs) to change that position in the future.” Leahy has introduced legislation that would ban such prioritization deals and has advocated for strong net neutrality rules. Over the past several months, Comcast has said it doesn't create such deals or plan to form them. “As the antitrust regulators continue to evaluate Comcast’s proposed transaction with Time Warner Cable, and regardless of whether it is approved, I ask Comcast to pledge that it will not engage in paid prioritization,” Leahy said. “I also ask that Comcast pledge not to engage in any activity that prioritizes affiliated content or services over unaffiliated content or services, helping to ensure that vertical integration does not threaten competition online.” Comcast is reviewing the letter, a spokeswoman said.
Four members of the Senate Commerce Committee asked its leaders for a hearing on the Internet of Things. “The proliferation of connected products is sparking a number of important policy questions related to consumer protection, security, privacy, technical standards, spectrum capacity, manufacturing, regulatory certainty, and public-sector applications, among many others,” said Sens. Kelly Ayotte, R-N.H., Cory Booker, D-N.J., Deb Fischer, R-Neb., and Brian Schatz, D-Hawaii, in a joint letter Monday (http://1.usa.gov/1ybBonU). “Now is the time to start building a robust public record through testimony and questions.” The letter is addressed to Chairman Jay Rockefeller, D-W.Va., and ranking member John Thune, R-S.D. A hearing would be appropriate during the lame-duck session around the winter holidays, they suggest, citing “millions of Americans” who will be “shopping for new tech products during the upcoming holiday season.” Thune “would certainly welcome such a hearing and will work with the chairman to see what may be possible yet this year,” a GOP committee aide told us, saying the “level of interest is certainly understandable due to the growth in use of such technologies and builds on various conversations that Senator Thune has been having with fellow committee members.” Rockefeller’s office didn’t comment.