Archive for March, 2015

Creativity in the 3. 5 GHz Band: Creating a New Citizens Broadband Radio Service

Friday, March 27th, 2015

Five years ago, the National Telecommunications plus Information Administration issued a report identifying possible spectrum bands for reallocation for commercial uses. In the document, it identified the 3550-3650 Megahertz band as a potential opportunity for future commercial use. At the time, there was fairly little commercial interest in this band. But some saw an opportunity to promote new wireless technologies, new business ideas, plus new spectrum management techniques to boost our nation’s broadband capacity. These days I circulated to my colleagues the draft Report and Order which will seize that opportunity by developing a new Citizens Broadband Radio Provider.

The 3. five GHz band is an innovation band. As a result of technological innovations and new concentrate on spectrum sharing, we can combine this with adjacent spectrum to create a 150 megahertz contiguous band previously unavailable for commercial uses. It provides an opportunity to try new innovations in spectrum licensing and access schemes to fulfill the needs of a multiplicity of users, simultaneously. And, crucially, we can perform all of this in a way that does not harm essential federal missions.

The draft Report and Order tools a three-tiered sharing paradigm, which we have explored in multiple models of notice and comment in the last two years. The lowest tier in the hierarchy, General Authorized Access (GAA), will be open to anyone with an FCC-certified device. Much like unlicensed bands, GAA will give you for zero-cost access to the spectrum by commercial broadband users. Within the Priority Access tier, users from the band can acquire at public sale targeted, short-duration licenses that provide disturbance protection from GAA users. Finally, on top of the hierarchy, incumbent federal plus commercial radar, satellite, and other users will receive protection from all Citizens Broadband Service users.

This new tiered sharing paradigm will be enabled by a Spectrum Entry System. The SAS takes an age-old role in spectrum management – the frequency coordinator – and updates it for the 21 st century through the use of cloud computing technology. Long gone are the days of an engineer working with pencil and protractor (not to say pocket protector) to coordinate users into a band.

Finally – a few words on safeguarding incumbent federal uses. America’s military uses this band for adnger zone systems that perform vital nationwide security missions. To protect these radars, previous reports suggested very large zones around the coasts within which industrial users could not operate. Thanks to an enormous amount of collaborative work with NTIA as well as the Department of Defense, these zones are now substantially smaller. More importantly, the draft Report and Order offers a roadmap, recommended by NTIA plus DoD, for operations within any region around the coast through the use of new messfühler technologies.

I look ahead to my fellow Commissioners’ feedback on the draft Report and Order. I believe it provides a peek of the future, and that future is very exciting indeed.

AWS-3 Auction: Lessons Learned

Friday, March 27th, 2015

From my perspective, the particular recent AWS-3 auction has to be deemed an overall success. It is hard to say otherwise when it released 65 megahertz of spectrum for more efficient purposes, allocated 1611 licenses to present and prospective wireless providers to expand wireless broadband services, plus grossed revenues totaling $44. 9billion (net revenues are estimated on $41. 3 billion). Nonetheless, this particular auction highlighted many important issues and raised quite a few concerns. Here are a few takeaways that will help shape my views as we consider future spectrum plan.

Certified vs . Unlicensed Spectrum . This auction clearly demonstrates there is still a critical need for licensed range in our overall spectrum framework. Even though some argue that the future lies only along with unlicensed or shared spectrum, this particular view ignores the fact that our nation’s commercial wireless carriers still seek exclusive spectrum in order to be able to maintain quality of service and network control. The simple proof of this is the putting in a bid activity, extensive bidding rounds and the final revenue figures for the AWS-3 auction. Having waited almost seven years since the 700 MHz auction and facing huge projected growth in wireless data usage, individuals fought for eleven weeks to win the exclusive right to make use of the available licenses. And these entities, together with those that didn’t participate or earn large numbers of licenses, are reportedly looking closely at the broadcast incentive auction to acquire additional certified spectrum.

Paired vs . Unpaired Spectrum . As I have got said before, I think the Fee, and the American people, lost an opportunity by not finding appropriate range to complement the A1 and B1 blocks. Specifically, the Commission should have paired this 15 megahertz of spectrum, instead of offering 5 plus 10 megahertz unpaired spectrum permit. By some accounts, this decision may have cost the taxpayer as much as $21 billion in revenues. Just compare the valuations in this auction: 10 megahertz of unpaired range (the B1 block) garnered almost $2. 3 billion in major revenues, whereas 10 megahertz of paired spectrum ( we. e. , 5 megahertz uplink and 5 megahertz downlink) auctioned in the same market areas (the H and I blocks) raised approximately $8. 4 billion. Meanwhile, when the 10 megahertz was paired to produce a 20 megahertz license, it wouldn’t be unrealistic to imagine that it may have raised upwards of $18. 2 billion dollars in gross revenues, which was the cost for all of the 20 megahertz paired licenses (J block).

This auction reaffirms my belief that we should have sought Congressional action to make any necessary changes to the law in order to facilitate an appropriate pairing. Alas, we did not even try. At least for the immediate term, the particular Commission must seek to auction paired blocks.

Location Still Matters . This auction confirmed the value of the value generated from permit in the largest markets. As expected, the particular licenses covering the top 30 metropolitan areas, which account for approximately 10 percent of the licenses offered, brought in 79 percent of the overall gross revenues.[1]This is nothing against medium- or even small-sized markets, but this fact is important as the Commission looks towards the incentive auction and issues raised by potential market impairments. In particular, the Commission must create as much revenue as possible from the larger markets in order to make the substantial economic offers to broadcasters that would justify turning in their licenses. Accordingly, there ought to be a recognition that unless essential, market impairments – especially in the larger markets – must be prohibited or even severely limited. Auction participants are usually unlikely to bid meaningful amounts in the forward auction if the permit are encumbered, and this is a lot more significant given the Commission’s wish to maintain its flawed “unreserved” and “reserved” categorizations. In other words, if we expect entities to bid high, we can not offer them cluttered licenses. In addition , we must keep in mind the recent results of the Canadian AWS-3 auction in which the “reserved” licenses for new entrants were purchased at a significant discount, potentially losing billions of dollars for taxpayers.

Low-Band vs . Mid-Band Spectrum . The overall revenues of this auction furthermore cast doubt on some quotes of the unappreciated value of mid-band range. Mid-band is clearly more useful than some would like you to think. Despite the increased cost of buildout – a reality of physics – with regard to mid-band spectrum, bidders still terribly wanted it. These entities knew the expected buildout costs, required them into account when formulating putting in a bid strategies, and still bid almost $45 billion. It is a fallacy to claim that low-band spectrum is the key to long term network architecture and wireless providers are unable to operate without it.

Designated Entities . The Commission should rethink its designated entity guidelines. As Commissioner Pai and others have got highlighted, the rules in place for this auction permitted two entities with 85 percent investment from a large, well-financed company to win 702 permit and apply for a $3. 3 billion dollars subsidy to offset part of their collective $13. 3 billion within bids. This company was able to use this framework to outbid not only small businesses plus rural telephone companies, but also some of the country’s largest wireless providers. In case these bidding credits are granted, which I take no position on at the current time, the rules will allow these licenses to be “flipped” to a different company after five years without having repaying a penny of the subsidy. In case early analysis is correct, the particular Commission must thoroughly review the particular contractual arrangements and coordinated putting in a bid activity. And, the full Commission ought to vote on whether to offer the subsidy. Moreover, this exercise should put a final end to any plans to loosen our DE rules. In fact , the Commission ought to give serious thought to strengthening these permissive rules and the current buildout requirements.

Planning Ahead . To ensure ongoing growth and innovation in America’s renowned wireless sector, we must identify now the spectrum bands that could be auctioned for exclusive use in the long run. We no longer have the luxury of avoiding the issue of fallow spectrum. Like AWS-3 and the coming 600 Megahertz auction, much of tomorrow’s licensed range will have to be reallocated from other uses, such as from the federal government or broadcast licensees. Clearing spectrum and resolving disturbance issues take time. We must start this technique now to have a firm plan in place to ensure that we have adequate spectrum in the pipeline for the next demand routine.

[1] The permit included in these calculations are those that cover the 30 largest City Statistical Areas according to U. S i9000. Census estimates. Find U. S. Department of Commerce, United States Census Agency, American FactFinder, Quotes of Resident Population Change plus Rankings: July 1, 2012 to July 1, 2013 – Usa – Metropolitan Statistical Area; and for Puerto Rico , (last visited Mar. 25, 2015). The licenses covering the top 10 (3. seven percent of all licenses) and top 20 (6. 8 percent of most licenses) markets accounted for 55 percent and 69 percent of the overall revenues, respectively.

USF High-Cost Program: Best and Realistic Timelines

Tuesday, March 24th, 2015

According to the FCC’s most recent report, nearly fourteen million Americans lack any access to fixed broadband. In an effort to remedy this, in 2011, the Commission established the Connect America Fund (CAF) within the USF high-cost program to provide federal common service support to private service providers serving high-cost parts of the nation. While progress has been made to implement various parts, thanks to the great work of staff, there hasn’t been a sense of urgency in the Commission due to a lack of energy and commitment to complete the hard tasks that remain. Sadly, unless something significant adjustments, unserved Americans will have to wait actually longer to get access to broadband.

Like numerous, I was pleased that, at recent Congressional hearings, Chairman Wheeler provided additional insight on the timeline intended for CAF reforms to Members of the home and Senate who want to see quicker progress, as I have advocated for over a year. It’s especially good news to hear the Chairman promise to complete a CAF not just for the larger rate-of-return (ROR) carriers but also for the smaller ROR carriers by the end of this year and also to hold a CAF Phase II auction for price cap areas next year. I take him with his word that he intends to try to meet his commitments. The problem is that will, when I mapped out the techniques that would need to occur to meet these promises, it became obvious that it’s extremely unlikely that the Commission will be able to adhere to that schedule. Many of the person actions and program steps are interconnected. For instance, it seems unlikely that the Commission would set up a CAF for very small ROR carriers without knowing which carriers will opt-in to a CAF ROR model.

Outlined below in chart form is what I believe to be the “best case” timing scenario for each CAF item, assuming that CAF will be the top priority for staff in the Wireline Competition Bureau (WCB) and the Wi-fi Telecommunications Bureau (WTB) and that there is stakeholder consensus on any excellent issues. In reality, however , WCB is focused on other complex, high-profile problems including net neutrality, mergers, exclusive access, Lifeline, inmate calling, plus forbearance, and WTB is focused to the broadcast incentive auction, among other things. Although it is true that there are teams within every Bureau still dedicated to CAF, several members have been assigned to these various other issues, and upper management will have to work on other projects as well. Accordingly, I’ve also presented a more “realistic case” scenario that acknowledges both these resource constraints, as well as a lack of general opinion on certain CAF components, including the CAF Phase II auction. To provide clarity for all those interested, I do not really believe that the Commission still intends to implement a CAF Phase II Mobility Fund, and so it is not an accident that it is excluded in the realistic version.

Notably, these are just the steps needed to adopt Commission rules as at present contemplated. After the Commission acts, it is going to still take months for financing to flow, and it will be many years before some unserved consumers may sign up for new broadband service.

I hope to be proven wrong about the timeline. In fact , I would welcome suggestions for ways to streamline and accelerate the remaining tasks. However it is important that all stakeholders understand the procedure and likely timing of reforms so that we can have that debate.

As a result, whenever people start to discuss changing, modernizing or updating the current communications statute, one area that concerns my mind is the USF high-cost program. And it wouldn’t necessarily take a lot of effort to generate tremendous improvement. All that is needed would be to set deadlines plus milestones for the Commission to act to the existing parts in a timely manner. That simple step – combined with a mandate to not increase the overall costs on American consumers – would likely have a demonstrable impact on broadband deployment in countryside America.

Best Case Realistic Case
2Q 2015
  • Make CAF Phase II offers to price cover carriers
  • Make CAF Phase II offers to price cover carriers
3Q 2015
  • Cost cap carriers accept or drop CAF Phase II offers
  • Adopt Voluntary Path to the particular Model for rate-of-return carriers
  • Adopt CAF Phase II Auction Order
  • Price cover carriers accept or decline CAF Phase II offers
4Q 2015
  • Rate-of-return carriers make selection
  • Adopt CAF intended for non-model rate-of-return carriers
  • Adopt Voluntary Path to the Model intended for rate-of-return carriers
1Q 2016
  • Adopt Mobility Fund Phase II Rules
  • Rate-of-return carriers create election
2Q 2016
  • Adopt CAF Phase II Auction Methods PN
3Q 2016
  • Adopt Mobility Fund Phase II Procedures PN
  • Adopt CAF Phase II Auction Order
4Q 2016
  • Hold CAF Phase II Auction
  • Adopt CAF for non-model rate-of-return service providers
1Q 2017
  • Analyze CAF Phase II Auction results to determine scope of Remote Areas Account
  • Hold Mobility Fund Phase II Public sale
  • Adopt CAF Phase II Auction Procedures PN
2Q 2017
  • Adopt Remote Areas Account Order
3Q 2017
  • Hold CAF Phase II Auction
4Q 2017
  • Analyze CAF Phase II Auction results to determine scope of Remote Areas Account
1Q 2018
2Q 2018
  • Adopt Remote Areas Account Order

Key Terms:

Connect America Fund Phase II : will provide support in areas served by price cap carriers, either to the incumbent carriers based on patterned costs or to competitive bidding those who win through a reverse auction.

Connect America Fund for Rate-of-Return Carriers : will provide support to rate-of-return service providers. Some may elect to receive assistance based on modeled costs (under the particular “Voluntary Path to the Model”). May include a separate Alaska plan.

Mobility Account Phase II : intended to offer support in areas lacking 4G service.

Remote Areas Fund : intended to provide support in areas that would be extremely costly to serve making use of traditional wireline technologies.

Repairing Flawed and Non-Existent “Editorial Privileges”

Monday, March 9th, 2015

Maybe the only real good thing to come from the Commission’s internet neutrality proceeding is that it shined the spotlight on a dark corner of FCC process: the flawed procedure for finalizing and releasing Commission files after they are voted on by the Commission at an Open Meeting. Those who are not familiar with FCC procedures might think that the work ends once the Commission offers voted on an item. In truth, it is just the beginning of the end.

The truth that there is so much confusion, and that Payment staff felt the need to issue the “Nothing to See Here” blog, demonstrates FCC processes are counterintuitive plus unnecessarily opaque. I’ve questioned various other FCC procedures previously (here plus here). Now I am suggesting all of us fix the post-adoption process as well. At the same time, the FCC really will require to take a fresh look at all of its treatments, actually codify the specific ones that will still make sense, and post them so that the official process is more transparent and better understood by many.

Editorial Privileges

The process pertaining to finalizing and releasing an item evidently starts by granting the relevant Bureau or Office “editorial privileges” during the meeting. I received some attention for objecting to the routine give of “editorial privileges” at the final meeting and many may be unfamiliar with the idea. There does not seem to be a clear understanding even within the agency, since the process is not in the FCC’s rules or its current internal guides (which are not publicly available). In other words, I used to be being asked to grant specialist that doesn’t officially exist in any way. When alerted to this fact, I actually realized that I could no longer support this.

One might assume, based on the name, that the scope of “editorial privileges, ” if they did exist, would be limited to non-substantive edits, such as correcting typos and updating cross-references in footnotes. In my former job, we called them technical and conforming edits. At the Payment, however , the Bureaus or Offices often do much more substantial modifying, including adding substantive and substantial rebuttals to Commissioners’ dissents plus providing sometimes lengthy responses in order to ex parte arguments that had not been incorporated into the draft prior to the election.

I do not believe that such substantive changes should be made under the guise of “editorial privileges, ”especially since such a process will be make-believe. It should be the Commissioners which propose substantive changes, not the particular staff. By objecting to content privileges, this is essentially what I had been asking for: that the Commissioners put their own names to further revisions instead of concealing behind staff edits and putting your signature on off on them after the fact during the release process.

Responses to Dissenting Commissioners

I recognize that the particular Commission must respond to all arguments in the record and has argued that this includes those made by dissenting Commissioners. But the fact that significant editing should occur after the fact is simply proof that there is insufficient engagement with all of the Commissioner offices in advance of a vote.

Even so, I try to create my views known well prior to receiving an item, including by issuing blog posts with my principles which i share with the relevant Bureaus or Offices, and again when the item will be before the full Commission prior to a election. It should not be surprising that, if those principles are ignored or violated, that my dissenting statement will highlight them. Accordingly, there ought to be no need to respond to my statements after the fact.

Staff should put their best foot forward, and I always endeavor to do the same. The cycle that I’ve witnessed of revising drafts to respond to statements and revising statements to respond in order to drafts, well after a vote has already taken place, is a sign of a broken system.

In the rare event that dissenting Commissioners increase truly unexpected arguments, however , then the majority Commissioners who vote for an item can direct staff for making appropriate changes. It should not be various other way around. And such changes must be avoided unless truly needed to comply with the Administrative Procedure Act (APA). At times, changes seem intended exclusively to take further pot shots on dissenting Commissioners.

Other Substantive Changes After a Election

Making various other substantive changes after the vote—for example, to further respond to other arguments in the record—is problematic as well. If the item is not fully baked in time for that vote, then the Commission should simply delay the vote by a a short while. There is no justification for asking Commissioners to vote on an unfinished item when FCC leadership sets its own agenda.

Moreover, whenever changes are made after the vote, dissenting Commissioners do not even get to election on them. Let me repeat that: no matter what the changes are and regardless of whether I might agree with them or not, by voting to dissent at a meeting, I actually immediately lose all rights in order to vote on subsequent changes. While I can live with this, is it the simplest way to get the best document? (The process is somewhat better when I possess voted to approve or concur with an items I get a choose say in changes made after adoption).

The Commissioners should be the ones discussing what extra changes are required if any to comply with the APA. I work with skilled colleagues who employ very capable advisors. This is not a heavy lift.

A Solution: More Openness for Commission Processes

The confusion regarding FCC processes highlights the need to make them more transparent. When I started, I was given a “Commissioner’s Guide to the Plan Process”. There is a version for employees as well. But the guides are only updated periodically and do not include key topics such as the 48-hour review practice for certain Bureau-level decisions. Additionally , some treatments were set forth by memoranda of understanding (MOU) or other intra-agency documents long ago and copies are certainly not provided to new Commissioners except if they know to ask. Moreover, many of the processes have never been decreased to writing. That means they can change from item to item and they differ across the agency. This is a United States government agency dealing with some of the most complex dealings and policy decisions imaginable. It shouldn’t be relegated to unspoken treatments, head nods and handshakes.

It doesn’t have to be by doing this. We can learn from others and improve how we operate. For instance, in Congress, the committees adopt rules of procedure with each new Congress. Those procedures are part of the public record and are typically posted on panel websites as well. The FCC must do no less. We should take time now to think about, adopt, and post official guidelines of procedure. They should be codified in the Code of Federal Regulations for that public to see. And we should revise them as necessary and post them again with each brand new Chairmanship.

Affirmatively Expand Permissible Foreign Ownership

Tuesday, March 3rd, 2015

For decades, extensive research and corresponding analysis have demonstrated the vast benefits of removing obstacles to international trade. Our experiences from previous trade agreements have demostrated the direct payoffs of removing or reducing artificial barriers plus protectionist measures. Among countless other benefits, increased trade has produced higher standards of living meant for Americans, expanded foreign markets for our products, reduced costs for services and goods. It’s also one area where several Republicans and Democrats in Congress and elsewhere, as well as the current Management, strongly agree. Fortunately, the Commission rate has the opportunity to further this bipartisan cause by reducing barriers to foreign investment in the U. T. communications marketplace. Let’s seize this moment!

The Communications Act already affords the Commission rate the flexibility to relax restrictions on foreign investment in certain radio licensees, which includes broadcast and commercial wireless. Specifically, current law prohibits greater than 25 % of foreign investment in a Oughout. S. entity that controls, straight or indirectly, a U. T. radio licensee, but only if the public interest would be served by the Commission rate refusing or revoking a license. In other words, the Commission is free to enable a higher foreign limit or waive the limit altogether, which was verified in the Commission’s unanimous November 2013 Declaratory Ruling. Disappointingly, the Commission rate declined, at that time, to make such a positive step, deciding only to confirm that demands from current or prospective transmitted licensees seeking approval for foreign investment above the threshold will be considered on a case-by-case basis. What we need is to get the ball rolling simply by setting rules and policies that affirmatively permit foreign ownership over the 25 percent cap once and for all.

The case to get rid of the shackles on foreign investment decision in U. S. companies will be exceptionally strong. First and foremost, U. T. companies, especially smaller ones, stand to benefit from new sources of capital necessary in the super-challenging, ever-changing, consumer-centric, competitive environment that is the U. T. marketplace. From the thousands of exhibitors at the International Consumer Electronics Show to the smaller sized Small Business Expo held a few weeks ago at the Commission and everywhere in between, the dreamers and risk-takers are in a big way focused on ways to obtain new avenues of funding. For the firms aiming to add new diverse voices to the market, the option of foreign investment rather than traditional capital lines, which have proven difficult to access in the past, would be very welcome. For struggling firms, such capital could act as life blood keeping the doors open or providing funding for growth and job creation. And, established companies will have a lot more capital options, thereby reducing their particular borrowing costs, which frees in the budget for product and service deployment. In some regards just having foreign capital as a possibility will be constructive.

Similarly important, the Commission’s past unwillingness to be receptive to greater foreign investment has been used as an excuse by other nations to retain indefensible trade barriers that harm Oughout. S. companies. As U. T. firms have tried to invest worldwide, they have run into legal and step-by-step roadblocks by foreign governments. In most cases, the responding countries have used the differences between how the U. S. considers foreign ownership and other nations. Just look at some of the countries that allow greater foreign investment in marketing communications: United Kingdom, 100 percent; South Korea, forty-nine percent; Mexico, 49 percent; plus India, 74 percent. Note that also China holds itself out as allowing 49 percent (although internal practices and barriers suggest otherwise). If we want U. S. companies to be able to invest internationally and take advantage of globe markets, which can provide significant profits on investment, build natural partners for greater U. S. marketing communications industry growth, and allow international diversity, we need to be willing to remove any perception that the U. S. is not willing to approve greater foreign investment decision.

To date, the Commission’s new transmitted case-by-case process has been less than effective. Its passive nature hasn’t led to the filing of many applications, especially since the international perception is that the rhetoric may be positive but the expected outcome of any application would still be negative. In fact , the Declaratory Ruling made clear that it was just a restatement from the Commission’s approach, not putting out a welcome mat. As such, this didn’t provide the necessary comfort for those seeking to invest in U. S. marketing communications companies.

Another reason for the lack of progress is that it has been entangled in a side battle over an application seeking consent to the transfer of control of a radio stations station to Pandora Radio LLC. In that case, on which I take no position at this time, the Commission must decide whether Pandora should be allowed to hold a radio station permit. In order to do so , Pandora, a Oughout. S. company, must show that its parent company’s percentage associated with foreign shareholders is sufficiently beneath the 25 percent benchmark. The record indicates that while Pandora estimates its foreign investment in the 15-17 percent range, like all publicly-traded companies generally, it cannot establish the identity, let alone the nationality from the majority of its shareholders. Thus, the application sits.

Without judging the merits from the pending petition or application, it seems reasonable in our global marketplace to utilize another measurement, including the possibility of a representative sample size to evaluate foreign ownership. To require publicly-traded U. T. companies to identify and supply to the FCC the precise details of their shareholder make-up, which can change on a daily or even hourly basis, does not comport with all the highly dynamic electronic and worldwide nature of capital markets. On any given day, does GM or even GE know the nationality of each from the shareholders? What about our national protection companies, like Lockheed or Common Dynamics, which certainly hold an essential place in our nation’s security?

Moreover, growing foreign investment in broadcast could be accomplished without jeopardizing or intimidating national security in any way. Just like within the Declaratory Ruling, the Commission really does retain the ongoing ability to closely study and reject, as necessary, any application that presents concerns to the national security agencies. One option would be to automatically grant applications unless of course, and only if, a very simplified submitting necessitates further review for nationwide security reasons. Alternatively, as I have got previously suggested, we could establish a presumption that the applications should be granted, therefore shifting the burden on the Commission to reject. And any national protection review of foreign investment in both transmitted and wireless licensees can have a a lot more formalized process, including time limits to ensure a timely conclusion.

Working together, Republicans and Democrats can expand foreign investment plus improve the growth projections for the Oughout. S. communications industry. By being willing to create real flexibility when it comes to the foreign investment requirements, the Commission rate would facilitate access to capital, expand the ability of U. S. companies to invest internationally, while at the same time preserve nationwide security protections.

The Process of Governance: The FCC & the Open Internet Order

Monday, March 2nd, 2015

The Commission’s recent ownership of new Open Internet rules offers received unprecedented attention and, together with national debate about the outcomes, offers generated significant interest in the process by which the FCC, like other impartial regulatory agencies, creates rules. In particular, people want to know when the new rules will be released for public review. The answer is tied to a wider question of governance: How does the FCC best create an enforceable rule that reflects public insight, permits internal deliberation, and is created to withstand judicial review? As with its substantive decisions, the answer is simple – by following Congress’ blueprints. As with governance generally, the goal is apparent: To engage in effective, informed action that furthers the public interest.

That’s “blueprints” in the dual. The two pillars of Congressional can are expressed in the Communications Work, the touchstone of our substantive power, and the Administrative Procedure Act (APA), the foundation of federal administrative action.

Among the Communications Act’s important provisions are two of particular importance to the Open Web Order: Title II, which governs “telecommunications service, ” and Section 706, by which Congress empowered the FCC to promote broadband deployment and to remove barriers to broadband system investment while promoting competition.

But how should these statutory commands be translated straight into policy? The APA tells us to produce rules through a process of notice-and-comment rulemaking. Why? Because as long recognized, the help of the FCC, like any independent agency, grows greater when it hears “the frequently clashing viewpoints of those whom its regulation will affect, ” in the words of a 1941 document on the Administrative Procedure Act by the Justice Department (Attorney General’s Committee, Final Report of the Attorney General Committee). In the case of the Open Web NPRM, the extended comment time period resulted in nearly 4 million remarks, an unprecedented number. All are available online.

Following the comment time period, FCC staff reviews the plans in light of the public record. The Chairman then presents his proposed purchase to the Commission for a vote – in FCC lingo, he “circulates” it to the four other commissioners. However , the order is not yet public because it is not yet last; this is the stage of internal deliberations among the Commissioners.

Regarding the Open Internet Order, the Chairman scheduled a final vote for that February 26 public meeting, moving the order three weeks beforehand as required by the Commission’s inner procedures. Typically during that three-week time period, Commissioners suggest changes to the Chairman’s draft. As amended, the proposed order is put up for a election. But this draft is still not really public.

It is recognized that independent agencies like the FCC combine attributes of legislators plus judges. Like the Congress, FCC rulemakings are open for extensive (in the Open Internet proceeding, extremely extensive) comment. That is what allows the Commission to be both impartial and expert. Like the Judiciary, the Commissioners have the opportunity to engage with each other in complete confidence, and to ensure that written orders completely reflect the back-and-forth of those deliberations.

The confidentiality from the Commissioners’ internal deliberations is a important part of the process, long recognized by legislation. So , for example , the Freedom of Information Act (FOIA) – an additional congressional command – contains a statutory permission protecting the internal deliberative processes of an agency. As explained by the Section of Justice in its Guide to the Freedom of Information Act:

… the general purpose of [the deliberative process privilege]#@@#@!!… is to “prevent injury to the quality of agency decisions. ” Specifically, three plan purposes consistently have been held in order to constitute the bases for this opportunity: (1) to encourage open, frank discussions on matters of plan between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they are really adopted; and (3) to protect towards public confusion that might result from disclosure of reasons and rationales which were not in fact ultimately the grounds for an agency’s action.

In other words, allowing the Commission to engage in frank, non-public discussions improves the decision-making process, just as receiving public comments boosts the Commission’s expertise.

Why was the Open Web order not released immediately after the Commission voted on it? Once the election on a Commission order has been taken, some additional steps remain before the decision is final and looking forward to public release. For one, Commissioners frequently prepare individual statements expressing their own opinions on the order, and those statements are generally first shared with the other Commissioners and staff. The statements may generate additional internal discussions, during which both the order and the statements might be clarified. In addition , the order alone must address any significant point made in the statements – or even risk being overturned in court for failing to address the issue. This can be a very important point – the United States Court of Appeals for the D. C. Circuit has made clear on several occasions, as recently as this past year, that, “[u]nder the APA, we must set aside orders that are ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, 5 U. S. C. § 706(2)(A), [and in] specific, ‘it most emphatically remains the work of this court to ensure that an agency employ the arguments raised before it’…. including the arguments of the agency’s dissenting commissioners. ”

Simultaneously, final proofreading and nonsubstantive “clean up” edits may be needed. The particular staff that has been responsible for writing the order is granted “editorial privileges” to prepare and circulate these required changes.

Ultimately, a final version is presented to the Commissioners for signoff by all of the Commissioners who voted in favor of the purchase. Until this is done, the Purchase is not public because it doesn’t completely reflect the full and final views of the Commission. Once the final version has been approved, it is – since the Open Internet Order will be – released to the public on the FCC’s web site.

The objective, of course , is to release the final purchase as soon as possible. But speed is not the only – or even the upmost – objective. The rulemaking process of the FCC was designed by Congress, and is carried out by the Commission, to produce rules that will stand the test of judicial review – and of time.

Partying National Consumer Protection Week

Monday, March 2nd, 2015

This week, March 1-7, 2015, the FCC is celebrating National Consumer Protection Week (NCPW), joining with a coalition of more than 85 consumer advocacy groups and federal government, state and local government agencies within a coordinated campaign to help raise recognition about consumer protection. Together we are encouraging consumers nationwide to take complete advantage of their consumer rights and make better-informed decisions.

At an NCPW kickoff event in late February, the FCC joined several coalition member in face-to-face conferences with members of Congress and their staff to discuss consumer issues and disseminate helpful consumer info.

Each day throughout NCPW we encourage you to check our own website –– for ideas and links to helpful information regarding issues such as smart device robbery protection, phone bill cramming, option of consumer help, emergency communications, and much more.

Our coalition’s website ( also offers consumers a wealth associated with tips and information on topics for example finances, health, privacy, technology and much more.

You can download and print the materials and share these friends and neighbors, or order materials from select partners if you’re planning a larger event such as a conference or course.

The FCC’s Consumer and Governmental Affairs Bureau works year-round with the Commission’s other agencies and offices to educate consumers dealing with issues and challenges around communications technologies and services, with the objectives of consumer protection and empowerment.

With this in mind, we launched at the beginning of this year our new Consumer Help Center: Its consumer-empowering functionality provides a better interaction in your way on the path to the FCC, creating a more user friendly experience for you and helping us better address your concerns.

The Consumer Help Center was created to make it easier for you to file the complaint, and includes a new intake system to dynamically guide you with the filing process. Creating a unique log-in during the filing process allows you to monitor the status of your complaint in real time – 24 hours a day, 7 days a week.

Additionally , the one-stop portal integrates consumer education with problem intake, enabling you to potentially solve your trouble without filing a complaint.

The Consumer Help Center furthermore promotes greater transparency and enhances communications between the Commission and customers, giving you an opportunity to inform our decision-making and policy goals.

You’ll also find us “on the road. ” The FCC really does educational outreach through speaking events and exhibiting and networking on local and national events and conferences. Visit our outreach page ( for quarterly newsletters designed for consumers on outreach activities as well as other resources.

As we celebrate NCPW, we urge you to check out these websites and check out the resources accessible to you. Most importantly, know your rights and let us know how we can best serve you.