Ninth Circuit Removes FTC From The Beat: Agency Lacks Authority To Police Common Carriers Engaged In Non-Common Carrier Activities

The Federal Communications Commission (“FCC”) asserted broad regulatory authority over the Internet and broadband Internet service providers when it reclassified Internet access service as a “common carrier” service under Title II of the Communications Act of 1934 in its 2015 Net Neutrality Order (discussed in detail here).  One of the many important questions left unanswered by the FCC’s reclassification decision was whether and to what extent the Federal Trade Commission (“FTC”) retained authority under Section 5 of the FTC Act to prohibit deceptive or unfair acts and practices by Internet service providers, in light of Section 5’s exemption of “common carriers” subject to the Communications Act.

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Sixth Circuit Rejects FCC’s Effort To Preempt State Regulation Of Municipal Broadband Providers

The FCC’s February 2015 meeting yielded two significant and controversial orders premised on the agency’s authority under Section 706 of the Communications Act: its much-publicized Open Internet Order (discussed here), and its less-publicized order preempting state statutes setting limits on municipal broadband providers, including by restricting their geographic extension of service (“Municipal Broadband Order”).  In June 2016, the U.S. Court of Appeals for the D.C. Circuit gave the FCC a boost when it upheld the FCC’s net neutrality rules as a valid exercise of its authority under Title II of the Communications Act as well as Section 706.  Yesterday, in State of Tennessee v. FCC, Nos. 15-3291/3555, the U.S. Court of Appeals for the Sixth Circuit reversed the FCC’s assertion of sweeping preemption authority under Section 706 and remanded its Municipal Broadband Order.

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Hailing on All Frequencies: The FCC Releases the Spectrum Frontiers Order

In a move that will support the development of 5G networks, the FCC issued an Order last week in the “Spectrum Frontiers” proceeding that should open up large amounts of high-band spectrum for licensed and unlicensed use.  The Commission adopted a new framework for flexible-use licensing in several spectrum bands above 24 GHz, permitting mobile operations in those bands and instituting rules to ensure shared access with incumbent licensees. The Commission also noted that the new licensing framework may serve as a template for rulemaking in additional high-frequency bands in the future, and issued an NPRM seeking feedback on proposals that would open nearly 18 GHz more to mobile use.

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Let’s Go Crazy: The FTC and FCC Launch “Parallel” Investigations Into Security Updates of Mobile Communications Industry

Earlier this week, the FTC and FCC announced “parallel” investigations into how carriers and mobile device makers release information on vulnerabilities, and how and when mobile security patches are distributed. The regulators, who have publicly jockeyed for position on privacy and cybersecurity matters in the past year, appear to have reached a truce of sorts, allowing each agency to examine industry players within its core jurisdiction.

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They Can Be Heroes: The FCC Proposes Expansive and Detailed Privacy & Cybersecurity Regulations for Broadband ISPs

On April 1, 2016, the FCC released a Notice of Proposed Rulemaking (“NPRM”) that would impose new regulatory burdens on broadband Internet service providers’ use of customer data. The wide-ranging NPRM also proposes rules covering providers’ protection of customer information and their actions in the event of a data security breach. Continue Reading

Patient Zero – Public Knowledge Seeks FCC Review of A New “Zero Rated” Service

Consumer advocacy group Public Knowledge recently filed a petition with the Federal Communications Commission (“FCC”) challenging a multi-system operator’s (“MSO”) online video service as violative of conditions imposed as part of a 2011 merger and the agency’s Open Internet rules. The service allows the MSO’s customers to stream its licensed video content to computers, tablets, and mobile devices without incurring additional data usage charges.  The MSO maintains the content of this service does not touch the public Internet – and thus is not subject to the Open Internet rules – because it is delivered on the same private, managed network as its cable services. Continue Reading

What’s That? What’s That? Fourth Circuit Upholds FCC Collocation Regulations Against 10th Amendment Challenge

No reason to be paranoid, but chances are the (electronic) voices you hear, and the words you are reading, come from a device (Android, iPhone or other) that relies on broadband technology. Depending on where you are, and when (and who else is using the network when you are), your broadband access might be spotty because capacity and connections in some communities far outpace those in others. Continue Reading

Government Forces Awaken: The Rise of Cyber Regulators in 2016

As the sun sets on 2015, but before it rises again in the New Year, we predict that, in the realm of cyber and data security, 2016 will become known as the “Rise of the Regulators.” Regulators across numerous industries and virtually all levels of government will be brandishing their cyber enforcement and regulatory badges and announcing: “We’re from the Government and we’re here to help.” Continue Reading

EXIM Bank Back in Business

Last week, Congress reauthorized the Export-Import Bank of the United States as part of the “Fixing America’s Surface Transportation (FAST) Act,” a law funding new transportation infrastructure.  The bill was signed into law on Dec. 4.  EXIM Bank has been unable to lend to new projects since its charter expired on June 30 this year.  The FAST Act reauthorizes it for four years – through Sept. 30, 2019 – and enables it to begin lending again. Continue Reading

FCC Slams Door on Higher Pole Attachment Rates

After kicking open a door to potential annual pole attachment rental increases in the hundreds of millions of dollars when it adopted its February 2015 Net Neutrality order, the Federal Communications Commission yesterday released an order unanimously granting a four-year-old petition for reconsideration.  A number of cable, broadband, and telecommunications industry players filed the petition to eliminate pole-attachment rate disparities and complexities between “rural” and “urban” areas and between and among various defined classes of electronic communication providers.  Yesterday’s ruling eliminates remaining loopholes that could have dramatically raised cable operator pole rentals and electric-utility windfalls resulting from the FCC’s February 2015 Net Neutrality order (which we analyzed here) that defined “Broadband Internet Access Service” as a “telecommunications service.” Continue Reading

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