Monday, August 11, 2014

FCC RFC :: Eligible Services List for Schools and Libraries USF

Released:  08/04/2014.  WIRELINE COMPETITION BUREAU SEEKS COMMENT ON DRAFT ELIGIBLE SERVICES LIST FOR SCHOOLS AND LIBRAIRES UNIVERSAL SERVICE PROGRAM. (DA No.  14-1130). (Dkt No 02-6 09-51 13-184 ). Comments Due:  09/03/2014. Reply Comments Due:  09/18/2014.  WCB . https://apps.fcc.gov/edocs_public/attachmatch/DA-14-1130A1.docx
https://apps.fcc.gov/edocs_public/attachmatch/DA-14-1130A1.pdf
https://apps.fcc.gov/edocs_public/attachmatch/DA-14-1130A1.txt


The Wireline Competition Bureau (Bureau) seeks comment on a draft eligible services list (ESL) for the schools and libraries universal support mechanism (also known as the E-rate program) for funding year 2015.[1]  In the E-rate Modernization Order, among other things, the Commission restructures the ESL into category one and category two services, streamlines the list of eligible internal connections components to focus support on those services and components needed for broadband connectivity within schools and libraries, and eliminates other services and components beginning in funding year 2015.[2]  The draft ESL we release with this public notice implements the changes required by the E-rate Modernization Order.  We seek comment on the draft ESL for funding year 2015.  Commenters should highlight whether the draft manifests the Commission’s decisions and intent in the E-rate Modernization Order, and to the extent that they find additional changes are necessary, we encourage commenters to be as detailed as possible with their recommendations.  The following summarizes the changes we propose....

FCC RFC :: 10th Sec. 706 NOI

TENTH INQUIRY CONCERNING THE DEPLOYMENT OF ADVANCED TELECOMMUNICATIONS CAPABILITY TO ALL AMERICANS IN A REASONABLE AND TIMELY FASHION, AND POSSIBLE STEPS TO ACCELERATE SUCH DEPLOYMENT PURSUANT TO SECTION 706 OF THE TELECOMMUNICATIONS ACT OF 1996.   Initiated the Commission's assessment of whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion, and solicited data and information that will help the Commission make this determination. (Dkt No.  14-126 ). Action by:  the Commission. Comments Due:  09/04/2014. Reply Comments Due:  09/19/2014. Adopted:  08/01/2014 by NOI. (FCC No. 14-113).  WCB  https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A1.docx
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A2.docx
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A3.docx
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A4.docx
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A1.pdf
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A2.pdf
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A3.pdf
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A4.pdf
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A1.txt
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A2.txt
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A3.txt
https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-113A4.txt

INTRODUCTION


1.              Section 706 of the Telecommunications Act of 1996, as amended (1996 Act), requires the Commission to determine and report annually on “whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion.”[1]  This Notice of Inquiry (Inquiry) initiates the Commission’s assessment of the “availability of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms).”[2]  In conducting this Inquiry, the Commission must “determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion” and, if the answer is negative, the Commission “shall take immediate action to accelerate deployment of such capability” through a variety of means.[3]  In this Inquiry, we solicit data and information that will help the Commission make this determination. 
2.              On August 21, 2012, the Commission released the Ninth Broadband Progress Notice of Inquiry.[4]  We asked questions in the Ninth Broadband Progress Notice of Inquiry and have not issued a corresponding report.[5]  To what extent do those questions remain relevant or need to be resolved?  Since that last inquiry, there have been numerous noteworthy developments in the broadband market and the Commission has continued to take significant steps to accelerate the deployment of modern communications networks.  For example, since the last report, the Commission has implemented a second round of Phase I of the Connect America Fund to promote the deployment of broadband-capable infrastructure and more than $438 million in funding has been disbursed, which will bring new broadband service to more than 1.6 million unserved Americans in the next several years.[6] 
3.              With this Inquiry, we start anew by analyzing current data and seeking information that will enable the Commission to conduct an updated analysis for purposes of its next report.  In particular, we seek comment on the benchmarks we should use to define “advanced telecommunications capability,” explore whether we should establish separate benchmarks for fixed and mobile services, which data we should rely on in measuring broadband, whether and how we should take into account differences in broadband deployment, particularly between urban areas versus non-urban and Tribal areas, and other issues.  We seek comment on whether we should modify the 4 megabits per second (Mbps) download and 1 Mbps upload (4 Mbps/1 Mbps) speed benchmark we have relied on in the past reports.  We also seek comment on whether we should consider latency and data usage allowances as additional core characteristics of advanced telecommunications capability.[7]
We seek comment on how to address mobile and satellite services data in our section 706 report and on ways to improve the evaluation of mobile and satellite services data.  We also seek comment on whether we should establish separate benchmarks for fixed and mobile services, and under what circumstances mobile services may itself satisfy the definition of advanced telecommunications capability and therefore serve as a functional equivalent for fixed broadband that satisfies the definition.  For areas where multiple providers have deployed service but none of the services, standing alone, satisfies the broadband benchmark, how (if at all) should we evaluate that deployment for our determination under section 706?  Finally, we seek comment on how to improve our analysis concerning broadband availability at elementary and secondary schools.  We encourage parties to provide any information that might be useful in our evaluation of broadband availability and welcome innovative ideas on how the Commission can best increase and accelerate broadband availability throughout the nation.  We welcome input on all matters relevant to this Inquiry, and seek information on the specific issues set forth below.

Saturday, July 12, 2014

What does the SPEECH ACT have to do with Foreign Judgments and Sec. 230?

In a recent federal court decision in California, the defendant Automattic (aka Wordpress) raised the defense of the SPEECH Act, supporting its Sec. 230 defenses.  So what is the SPEECH Act and what does it do?

First, the video tape.  In JOUDE v. WORDPRESS FOUNDATION, Dist. Court, ND California 2014, according to the court, plaintiffs, citizens of France,
learned of a blog at the web address [] ("the Blog"). Id. ¶ 11. Titled "The Hoodwankers," the Blog is about Plaintiffs and other members of the Joude family and published anonymously. Id. ¶¶ 11, 13. From February 27, 2014 to March 8, 2014, an anonymous contributor posted a total of twelve separate entries. See McCoy Declaration, Ex. A, ECF No. 1-4, at 35-43. While some of the entries appear to state plain facts about Plaintiffs' family history, others contain negative remarks. Id.
Plaintiffs contacted defendants and asked that the blog be removed.  Defendants responded "that they 'were in no position to arbitrate content disputes' but would remove any content 'found to be defamatory or illegal by a U.S. court of law' in a formal order from a United States court. Id."  Plaintiffs obtained a French defamation Order and sought to enforce it.  Defendant stated "um, I dont think so," citing the SPEECH Act.  Plaintiff's did not oppose Defendant's Motion for I-Dont-Think-So and the cause of action was dismissed.  With the cause of action dismissed, the court opined that it could not review the applicability of the SPEECH Act.

Okay, but what IS the SPEECH Act?

The CRS provides a nice summary:  Emily C. Barbour, The SPEECH Act: The Federal Response to "Libel Tourism", Congressional Research Service Sept. 16, 2010
The SPEECH Act prohibits domestic courts from recognizing or enforcing foreign judgments for defamation in any one of three circumstances:
  • When the party opposing recognition or enforcement claims that the judgment is inconsistent with the First Amendment to the Constitution, until and unless the domestic court determines that the judgment is consistent with the First Amendment,
  • When the party opposing recognition or enforcement establishes that the exercise of personal jurisdiction by the foreign court failed to comport with the due process requirements imposed on domestic courts by the U.S. Constitution, or
  • When the foreign judgment is against the provider of an interactive computer service and the party opposing recognition or enforcement claims that the judgment is inconsistent with section 230 of the Communications Act of 1934 (47 U.S.C. § 230) regarding protection for private blocking and screening of offensive material, until and unless the domestic court determines that the judgment is consistent with those provisions. 74
    N 74: Some commentators have noted that, in applying section 230 of the Communications Act of 1934 to foreign judgments, the SPEECH Act only extends protection to providers of interactive computer services even though section 230 protects providers and users of interactive computer services. E.g. , Eric Goldman, New Anti-Libel Tourism Act (HR 2765) Extends 47 USC 230 to Foreign Judgments , T ECH. & MARKETING L. BLOG (Aug. 11, 2010, 9:20 AM), http://blog.ericgoldman.org.
Moreover, in any of those three circumstances, a U.S. citizen opposing recognition or enforcement of the foreign judgment may bring an action in a federal district court for a declaratory judgment that the foreign judgment is repugnant to the Constitution. The SPEECH Act also permits any action brought in a state domestic court to be removed to federal court if there is diversity jurisdiction or one party is a U.S. citizen and the other is either a foreign state or citizen of a foreign state.

The SPEECH Act ensures that a party who appeared in a foreign court rendering a foreign judgment to which the act applies is not deprived of the right to oppose recognition or enforcement of that subsequent judgment. If the party opposing recognition or enforcement of the judgment prevails, the act allows the award of reasonable attorney fees under certain conditions.

Finally, the SPEECH Act appears to preempt state laws related to foreign judgments.
Now you know.

Saturday, June 07, 2014

NTIA RFC Big Data and Consumer Privacy in Internet Economy

Request for Comments on Big Data and Consumer Privacy in the Internet Economy

Date: 
June 04, 2014
Docket Number: 
Docket No. 140514424-4424-01
NTIA is requesting comment on “big data” developments and how they impact the Consumer Privacy Bill of Rights. NTIA and the Department of Commerce invite public comment on these issues from all stakeholders, including the commercial, academic, and public interest sectors, legislators, and from governmental consumer protection and enforcement agencies.
Comments are due on or before 5 p.m. Eastern Time on August 5, 2014.

Thursday, May 15, 2014

FCC 101: What is an NPRM Anyway? #FCC #NetNeutrality

The Federal Communications Commission is an independent federal agency established pursuant to the Communications Act of 1934 (see early FCC history).  Section 1 of the Act sets forth the authority for the creation of the FCC, stating,
For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communications, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is created a commission to be known as the ''Federal Communications Commission'', which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this chapter.
This is very broad authority.  This section grants jurisdiction to the FCC over all interstate radio and wireline communications, which pretty much covers everything.  You should also notice that this initial language has universal service language built right into it, setting forth the driving policy of making available to all people an efficient communications service.

Beyond this broad authority, the Act proceeds to also set for specific areas of responsibilities for the FCC.  Title II of the Act regulates telecommunications common carriers, otherwise known as the public telephone companies.  Title VI of the Act regulates cable service.  Title III of the Act regulates wireless service.  These different sections of the Act are ultimately reflected in different Bureaus within the Commission.  At the top of the FCC is the Commission of 5 commissioners.  Below the commissioners are the Mass Media Bureau, the Common Carrier Bureau, the Cable Services Bureau, the International Bureau, and the Wireless Bureau.  In recent times the FCC has begun a restructuring effort, adding an Enforcement Bureau and a Consumer Information Bureau.  No one office within the FCC has responsibility specifically over Internet or online communications issues.

Unlike other federal agencies, the FCC is an "independent" agency.  It does not answer to the President of the United States.  There is no chair on the President's cabinet for the FCC and the FCC Chairman does not serve at the will of the President.  Instead, the FCC is answerable to the U.S. Congress - in other words, the FCC has hundreds of bosses instead of just one.  The President, when he needs to attend to communications policy, works through the National Telecommunications and Information Administration within the Department of Commerce - those are the good folks who have had the responsibility of privatizing the Internet's Domain Name System.

Delegated Authority: Bureaus and Offices

Of course, not everything that the FCC does could or should be brought before the Commissioners.  The Commissioners have delegated authority to different Bureaus. 47 U.S.C. § 155(b)&(c). Smaller matters are handled by Bureau Chiefs or even Division Chiefs.  For example, enforcement fines under a certain dollar threshold do not have to be presented to the full Commission and can be issued by the Enforcement Bureau.  For the really big crimes with million dollar fines, the full Commission must vote and approve the action.  SLAMMING fines (involuntarily switching customers from one long distance carrier to another) has been a recent example of this. The primary work of the FCC is conducted by seven bureaus; these bureaus largely track industry lines and the original laws which were aggregated together to form the FCC in 1934

SPEAK YOUR MIND

The FCC, like all federal agencies, is under the Administrative Procedure Act.  This ensures that the process before the FCC, as with all federal agencies, is democratic.  When making a policy decision, a federal agency must give adequate notice that it is contemplating that decision and an opportunity for the public to comment on how the decision should be made.  Any interested party can file comments in these proceedings and comments can take any form (as long as they have the proceeding docket number clearly identified on them).  Indeed, the FCC now has an online electronic form where interested parties can come and, with no more difficulty than writing an e-mail, fire off comments on any open proceeding.  When deciding, a federal agency is required to consider all comments provided and give a rational explanation why it either accepted or rejected those views.

At the FCC there are two typical ways in which any policy decision making process starts: the FCC can initiate a proceeding or an interested party can initiate a proceeding. 47 CFR 1.411

Petitions

When an interested party wants to initiate a proceeding, believing that something is broke and needs fixin', the interested party can petition the FCC.  The FCC then can place the petition out for public comment.  This situation can occur where old rules were originally satisfactory but something has changed to bring new questions.  An example of was IVI's petition for a declaratory ruling that ISPs should be permitted to have access to leased access cable channels.  The FCC accepted that petition and initiated a comment gathering period discussed in more detail below . 

 FCC Initiated Proceedings

The second way to start a proceeding is for the FCC to initiate it.  In recent history, the FCC has been extremely active initiating policy decisions.  The passage of the Telecommunications Act of 1996 meant that the FCC was tasked with implementing the new law.  Where the Act is clear, there may be no need for the FCC to draw up rules implementing the Act.  But where the Act gave a mandate but left the details to be clarified, the FCC might initiate a rulemaking proceeding to work out the details.  

A good example of this is the Universal Service program, set forth in section 254 of the Communications Act.  This gave the FCC broad authority to set up a program to subsidize Internet access to schools and libraries, but did not specify what should be included in the subsidy program or the size of the program.  The FCC initiated an extensive rulemaking proceeding to determine which facilities, equipment, and services qualified under the program.

Notice of Inquiry

There are two ways that an agency can initiate a proceeding; it can propose a rule or it can take a step back and initiate an inquiry.  The latter is a Notice of Inquiry (NOI).  This is a situation where the agency recognizes that it is dealing with an issue of significant public policy, but perhaps believes that there has been insufficient data or discussion gathered on the issue to formulate a policy at this time.  An example of this was the Section 255 NOI for IP telephony. In an NOI, the agency has not given APA notice of a pending decision and cannot conclude the proceeding with a decision. At the end of an NOI proceeding, the agency may elect to (1) propose a rule if appropriate or (2) issue a report with the information it gathered.
47 CFR § 1.430 Proceedings on a notice of inquiry.

The provisions of this subpart also govern proceedings commenced by issuing a ``Notice of Inquiry,'' except that such proceedings do not result in the adoption of rules, and Notices of Inquiry are not required to be published in the Federal Register. [51 FR 7445, Mar. 4, 1986]

Notice of Proposed Rulemaking

The second way for the FCC to initiate a proceeding is to propose a new regulation. 47 CFR s 1.412. It need not start with an NOI; it can start directly with a Notice of Proposed Rulemaking (NPRM).  In an NPRM, the FCC will explain a policy issue and then set forth a proposed resolution of that issues, providing notice of its proposed rule to guide future action.  

The FCC then gives a deadline for comments to be filed before the FCC; there is usually a subsequent period in which parties can reply to the arguments made in the initial round of comments.  All comments are publicly available for all parties to review and comment on (see the FCC's Electronic Comment Filing System where comments can be filed and viewed using the docket number of the proceeding). 47 CFR s 1.415 Comments and Replies
 
An example of a rulemaking is Computer III.  Computer II had set forth restrictions on the ability of Bell Telephone Operating Companies (BOCs) to enter the ISP market.  If BOCs wanted to become ISPs, they had to do it through a fully separate corporate subsidiary.  Ultimately, the FCC concluded that this created unnecessary inefficiencies.  Therefore, the FCC released Computer III where it addressed these inefficiencies by creating a system of nonstructural safeguards that would permit BOCs to enter the playing field of ISPs without a separate corporate affiliate, but not engage in anticompetitive behavior. 

Filing Comments

"When the FCC proposes new rules, a time period is established for the public to comment on these proposed rules. Anyone can file comments. You don’t need to be an attorney or to hire an attorney. Each of the Commission’s documents containing proposed rules clearly details the specific dates, deadlines and locations for filing comments and reply comments.

"Comments from the public play an important part in Commission decisions because they tell us what people think about our proposals and why they support or oppose them.

"After initial comments are filed, there is an additional period for responding to the first set of comments. During this second phase, you can file reply comments. People file reply comments to support or disagree with what others have said in their initial comments.

"How Do I File Comments with the Commission?

"You can file documents with the FCC for all docketed and rulemaking proceedings through our Electronic Comment Filing Syste (ECFS) . ECFS accepts documents 24 hours a day with a midnight filing deadline. The official receipt for electronic filings will reflect Monday through Friday dates, except legal holidays.. . . . . " About the FCC, FCC CGB. 

Comments About Comments

In submitting comments to a federal regulatory agency, you may wish to keep a few things in mind:
  • Be Succinct; Be Articulate: Frequently agency staff must read and summarize hundreds or thousands of comments. After a while, these comments just blur. Make it easy on staff so that they can get your point. Do not ramble on and on. Be succinct and be articulate. Make your argument in a nice and tight form, and make sure you make your point clearly.
  • Make Your Point Jump Out: Many petitioners will make their points in bold subtitle text, and then elaborate.
  • Be Clear What You Want: Many a legal document has created beautiful arguments about an issue, but then failed to declare what the petitioner wants. What relief do you seek? If you persuade your reader, what would you like them to do. You would be surprised how often this is over looked.
  • Provide a Summary: If you comments are long, provide a summary. You may wish to provide both an "executive summary" and short statements summarizing your points.. As wonderful as your 300 page comments may be, some decision makers will only see a staff prepared summary. It can be the summary that you crafted - or it can be the summary of some staff person who half understands what you are talking about.
  • Provide Evidence: Administrative law is less formal and merely speculation is accepted. But to make a truly persuasive argument, include as much evidence as possible. A hard fact goes far in countering rhetoric (it also sets up your appeal).
  • Provide Consensus: One of the most powerful tools in this process is consensus of interested parties. If you can get parties to agree on points, and make the work of the agency easier, that can be well received.
  • Educate, Dont Berate: This is one of those self fulfilling prophesies - if you scream at the government like they are your enemy, then they probably wont be your friend. If you come in with a positive attitude, as perhaps someone on the front line of this regulatory policy who is impacted by it greatly, and you are hear to educate staff about how this policy can best work - you may find a very positive reaction.
  • Dont Protect Your Document: This may not occur to you - agency staff will set on your argument like hungry ferrets, summarizing and digesting it, and reporting the results to working groups. This is frequently achieved by our friend "Cut and Paste." If you copy-protect your document, you make it hard for the staff to work with it. And if you make it hard for the staff to work with your 40 page comment, and they have 300 more comments to read, what do you think will happen?
  • Be Timely: Get your comments in by the deadline. But after the deadline passes, as noted in the section about ex partes, it doesn't mean the show is over. See if the agency still accepts feedback - see if you need to respond to some of the arguments made by some of the other parties - or if you might be able to hammer out consensus positions with them, even after the deadline.
  • Review Previous Comments: There are plenty of comments online now. Review a few as models and see what old-hacks are doing.
  • Follow Up: Your comments will get read. But they may only get read by lower staff. Back up your effort by setting up a visit with staff to explain your position and answer questions.
  • Dont Burn Bridges: If you lose, all it means is that you lost. In a democracy, someone almost always loses - frequently lots of people lose. That is part of living in a democracy, everyone makes their argument, and hopefully the best argument wins - hopefully. Losing doesn't mean democracy does work; it just means you lost. Democracy means that when you lose, you have another day to challenge the political process, perhaps by voting those bums out of office.
Ex Parte (Comments and Contact after the comment period is closed)

After the comment period is closed but before a decision has been made by the FCC, an interested party can still make its views knows.  All a party has to do is follow the FCC's ex parte rules, which sounds a lot harder than it is.  Just think about what is fair and democratic.  If one party comes and makes an argument to the FCC, all of the other parties would want to know about that and have a chance to respond.  And that is exactly what the rules permit.  You can usually come during this period and argue anything that you want in any way that you want - you simply must file a summary of your presentation with the Secretary of the FCC for inclusion in the record of that proceeding. 

"APA places no restriction on "off-the record" or "ex parte" communication between agency decision makers and other persons during informal rulemaking. [5 U.S.C. § 557(d)(1)] However, FCC has rules about such contacts to protect the fairness of its proceedings by providing an assurance that FCC decisions are not influenced by off-the-record communications between decision makers and others. The rules also give FCC the flexibility to obtain the information it needs for making decisions. Under its ex parte rules, FCC generally classifies its rulemaking proceedings as "permit-but-disclose," meaning that outside parties are allowed to present information to FCC either in writing or in person, but are required to disclose such communications in the public record. [47 CFR § 1.1206(a)(1)] The rules require a person making an oral ex parte presentation that includes data or arguments not already reflected in that person's other filings to submit a disclosure to the record summarizing the new data and arguments. The rules state that the summary should generally be "more than a one or two sentence description" and not just a listing of the subjects discussed. [47 CFR § 1.1206(b)(2)] When there is ambiguity about whether data or arguments are already in the public record, FCC encourages parties to briefly summarize the matters discussed at a meeting. FCC's ex parte rules also establish the Sunshine Period, which begins when FCC releases the Sunshine Agenda of items scheduled for a vote at a public meeting and ends when those items are released to the public after the vote or are removed from the agenda before the meeting. During the Sunshine Period, the public may not contact the agency to discuss any matters that appear on the Sunshine Agenda unless there is a specific exemption (27For example, there is an exemption for other federal agencies, Members of Congress, or congressional staff under certain conditions. 47 CFR § 1.1203(a)). The Sunshine Period does not apply to items that are voted on by circulation." [GAO-07-1046, p 11]

    Sunshine

    "The Government in the Sunshine Act of 1976 (Sunshine Act). [5 U.S.C. § 552(b)] This act requires federal agencies headed by a collegial body composed of two or more individual members, such as FCC, to hold regular public meetings with sufficient public notice that the meeting will take place. The agency must release the meeting's agenda, known as the Sunshine Agenda, no later than 1 week before the meeting. In addition, the act prohibits more than two of the five FCC commissioners from deliberating with one another to conduct agency business outside the context of the public meeting." - FCC Should Take Steps to Ensure Equal Access to Rulemaking Information, GAO-07-1046, p. 10 (Sept 2007)

    A number of recent FCC Commissioners, such as Ch. Copps and Ch. Powell, have asked that the Sunshine Act be revised so that they may meet and deliberate in private.

    Orders

    When the FCC has considered all the filed comments and all of the ex parte presentations, it can than issue an order setting forth the final rule.  The FCC must provide a rational explanation why it accepted or rejected different parties' views.  If the parties are satisfied, the rule will guide FCC action and be enforced by the FCC's Enforcement Bureau.

    The Order may be voted on in an Open FCC Meeting or it may be voted on without a meeting. The Orders come is a few different versions: (1) Reports and Orders, (2) Orders, and (3) Memorandum Opinion and Order. The Order must comply with the APA and present a rationale explanation why the FCC accepted or rejected each comment and argument introduced into the proceeding before it. As a result, most Orders are lengthy documents that (a) explain what issue is before the FCC, (b) summarize all arguments and comments (c) discuss all arguments and comments, and (d) conclude with what decision the FCC will take.

    Normally proceedings are handled by specific bureaus. The bureau staff will review the entire proceeding, and draw up a draft order. The draft order is then place on "circulation" before the five Commissioners and their staff. During "circulation" the draft order may be revised in response to questions and concerns of the Commissioners, and in order for the Commission to achieve a majority vote.

    "Three weeks before the commission considers an item at a public meeting, the chairman’s office releases to FCC officials the draft version of the proposed rules the commission expects to vote on at the public meeting. These drafts are internal, nonpublic documents. FCC officials told us they do not release information to the public about what items the commission is planning to vote on at public meetings or items being circulated by the commission for adoption. FCC’s written rulemaking guidance states that such information is nonpublic and may not be disclosed in any format, including via paper, electronic, or oral means, unless the chairman authorizes its disclosure." [GAO-07-1046, p 15]

    The Commissioners then vote the item, and the outcome of the proceeding is determined by majority vote.

    "Once the commission adopts a rule, the originating bureau often makes technical corrections to it and may also make substantive changes. Each commissioner is given the final rule before it is released and can decide if the rule has undergone substantive changes. Any substantive changes are approved by the commissioners, and the rule goes through a final internal review before FCC releases the rule and submits it to the Federal Register for publication.36 FCC may adopt and release some rules on the same day, while other rules may require months of revision because the commission may vote on a particular issue or policy position and not the precise wording of the rule. When this occurs, the final wording of the rule is approved by all commissioners before the order is released." [GAO-07-1046, p 15]

    Appeals

    It is conceivable that the parties are not satisfied - and the process frequently does not end here.  The dissatisfied parties can relief before the FCC either by petitioning for reconsideration or clarification. 47 CFR s 1.429  "Stakeholders are allowed 30 days after a rule is published in the Federal Register to file a petition for reconsideration, although FCC usually has no required time frame for acting on such a petition." [GAO-07-1046, p 17] If the FCC grants the petition, there will be a new round of comments that the FCC will have to consider.  The FCC can also determine that the petition essentially argues nothing new, covering old ground, and therefore deny the petition.

    Dissatisfied parties can also appeal decisions of the FCC in federal court.  As you move up the appeal ladder, however, your grounds for appeal become narrower and narrower.  In federal court, a dissatisfied party cannot just argue that it is bad policy - an argument which can be persuasive down before the FCC.  In federal court, a dissatisfied party is likely to argue that the decision of the FCC was unconstitutional, violates the APA, or violates the Communication Act.  Constitutional claims are typically First Amendment issues; perhaps the most famous was Pacifica v. FCC in which the FCC fined Pacifica radio for playing George Carlin's "Seven Dirty Words" routine.

    When a dissatisfied party argues that a decision was irrational, this is based on the Administrative Procedure Act, requiring the FCC to consider all comments and give a rational explanation of its decision.  As long as the federal agency can give a rational explanation of its decision, a federal court will give it discretion, making this very hard grounds to win on. 

    Finally, a dissatisfied party can argue that a decision does not comport with the Communications Act itself.  This is typically an argument that a federal agency is taking an action that is not within its jurisdiction.  Here, hypothetically, a federal court might say that the FCC lacks the authority to regulate organic mushrooms.

    "An appeals court may uphold, vacate (hold unlawful or set aside), or remand an FCC rule (send it back to the agency for further consideration) entirely or in part, which may lead the commission to take additional action on the rulemaking, such as issuing a new version of the rule to address the court’s concerns." [GAO-07-1046, p 17]

    After federal court, if you are still dissatisfied, you can appeal your case to the Supreme Court.  The Supreme Court usually has discretion whether or not it will listen to your case in the first place (the Communications Decency Act was one of those rare laws where Congress gave the Supreme Court no discretion - it would have to hear any constitutional challenge to the CDA).  Appeals to the Supreme Court are rare, but when they occur, they have the potential for dramatic implications in communications policy.

    When all is said and done, and we have a rule, then the issues move out of the policy offices of the FCC, across the hall, and into the enforcement offices.

    Tuesday, April 22, 2014

    FTC Summer Research Fellow

    Job Title:Research Fellow (Information Technology) - Fellowship Program (Summer)

    Agency:Federal Trade Commission

    Job Announcement Number:OTC-2014-0001

    SALARY RANGE:

    $14.74 to $21.44 / Per Hour

    OPEN PERIOD:

    Tuesday, April 15, 2014 to Friday, May 02, 2014

    SERIES & GRADE:

    GS-2299-04/05

    POSITION INFORMATION:

    Excepted Service - Summer - Temporary Appointment

    PROMOTION POTENTIAL:

    05

    DUTY LOCATIONS:

    FEW vacancies - District of Columbia, DC View Map

    WHO MAY APPLY:

    • Current college students enrolled or accepted for enrollment in a graduate or undergraduate program, having at least a half-time course load at an accredited institution of higher education.

    SECURITY CLEARANCE:

    Public Trust - Background Investigation

    SUPERVISORY STATUS:

    No

    JOB SUMMARY:

    About the Agency

    The Technology and Data Governance Research Fellowship Program is a 10-week program designed to give students (graduate and undergraduate) hands on experience with work relevant to the FTC by assisting with real-work exploratory projects.  Additionally, the FTC seeks to use this program to broaden its ability to understand and respond to current topics in technology.

    TRAVEL REQUIRED

    • Not Required

    RELOCATION AUTHORIZED

    • No

    KEY REQUIREMENTS

    • Recent transcripts
    • Enrolled at least half-time at qualifying educational institution
    • U.S. citizenship
    • Relocation expenses will not be paid

    DUTIES:

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    As a Summer Research Fellow, you will assist in research experiments as assigned, including the design of experiments, data collection, data analysis, writing reports and presenting results.  Experiments may cover any area of technology or data related to the FTC, including but not limited to, mobile phones, web browsing, advertising, data security, financial products and services, and fraud.


    QUALIFICATIONS REQUIRED:

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    To qualify, you must meet the qualifications requirements by the closing date of this announcement. 

    To qualify for this position at the GS-04 level, you must possess the following:

    • Completion of 2 full academic years of post-high school study or an associate's degree.
    To qualify for this position at the GS-05 level, you must possess the following:
    • Completion of 4 academic years of post-high school leading to a bachelor's degree or equivalent degree.  If graduation from an undergraduate program is expected by Spring 2014, applicants must be accepted for enrollment to a graduate program and able to provide verification of this acceptance.  
    In addition, applicants who have an interest in government, technology, and/or computer science and strong written and oral communication skills are highly desired.

     

    Fellowship Program Requirements:

    • Must be enrolled or accepted as a degree-seeking student.
    • Must be enrolled or have been accepted for enrollment in an accredited school.
    • Must be taking at least half-time academic course load.
    To be eligible, you must be currently enrolled at least a half-time basis in an accredited college (including 4-year colleges/universities, community colleges, and junior colleges); professional, technical, vocational, and trade school; advanced degree programs; or other qualifying educational institution pursuing a qualifying degree or certificate. Certificate programs are defined as post-secondary education, in a qualifying educational institution, equivalent to at least one academic year of full-time study that is part of an accredited college-level, technical, trade, vocational, or business school curriculum.

    Must maintain student eligibility and enrollment for the duration of the fellowship.  If graduation from an undergraduate program is expected by Spring 2014, must be accepted for enrollment to a graduate program and able to provide verification of this acceptance.  

    Veterans' preference applies in the hiring process. In order to receive preference in hiring, you must clearly identify your claim for veterans' preference when you apply.

    Unofficial transcripts will be accepted as part of your application package, however, if selected official transcripts must be submitted prior to establishing a start date.

    All applications must be received on-line via www.usajobs.gov.

    HOW YOU WILL BE EVALUATED:

    Your application package (resume, supporting documents, and responses to the questionnaire) will be reviewed to verify that you meet the basic eligibility and qualification requirements.  Your responses to the questionnaire will be used to evaluate your relevant personal, educational, and work experiences.

    Qualified applicants eligible for veteran's preference will be referred and considered ahead of non-veterans. Veterans' Preference:   Preference eligibles with a compensable service-connected disability of 10 percent or more (CPS, CP) are placed at the top of the referral list. XP and TP preference eligibles are placed above non-preference eligibles. For more information on entitlement go to: http://www.fedshirevets.gov/job/vetpref/index.aspx

    You must maintain good academic standing, as defined by your school, generally at least a 2.0 Grade Point Average (GPA) for undergraduate programs (cumulative; no rounding) and a 3.0 GPA for advanced degree programs.

    You must submit with your application a current academic transcript and/or other official documentation from your academic institution demonstrating your eligibility for appointment.

    You must maintain student eligibility and enrollment for the duration of the internship. If you cannot, you are ineligible for this program. Please review the "QUALIFICATION REQUIRED" section of this vacancy announcement to ensure that you qualify for this internship.

    In addition, the following documents are required:

    • Cover Letter: Essay should be between 300-500 words in length explaining how this fellowship will complement your academic experience/goals.
    • Current Resume
    • Two letters of Recommendation

    Event: Scenarios for the Future of Internet Governance

    The Washington DC Chapter of the Internet Society (ISOC-DC) and the Institute for International Economic Policy, George Washington University invite you to attend:
     

    Scenarios for the Future of Internet Governance

    Wednesday, April 30, 2014 from 9:30 AM to 2:00 PM at The Commons, GWU, 1957 E Street, 6th floor, Washington DC.
     

    Eventbrite registration required: https://internetscenarios.eventbrite.com

    Click here to support ISOC-DC

    The U.S. government's recent announcement that it intends to end its historic role in overseeing the central coordinating functions of the Internet has created uncertainty about the future of Internet governance. The outcome of discussions underway today will impact not only the Internet, but the future of international institutions.

    Please join us and our distinguished panels for a vital discussion on the global challenges and opportunities involved in the future of Internet governance.

    Panel 1: What is the IANA Function? What led to the US decision to reduce its role in IANA? What are the risks and opportunities associated with this fundamental change?

    Fiona Alexander - Office of International Affairs, NTIA, US Department of Commerce

    Richard Jimmerson - Chief Information Officer, ARIN

    Steve DelBianco - Executive Director, NetChoice

    Milton Mueller - Professor at Syracuse University School of Information Studies

    Moderator - Tim Lordan - Executive Director, Internet Education Foundation

    Panel 2: Possible scenarios for the future of the IANA functions - what are the implications for Internet governance?

    Jamie Hedlund - Advisor to the President, ICANN

    Raquel Gatto - Chapter Development Manager, the Americas, ISOC

    Beatrice Covassi - Digital Agenda and ICT Counselor at EU Delegation to the United States

    Derrick Cogburn - Associate Professor of International Relations at the School of International Service at American University

    Becky Burr - Deputy General Counsel and Chief Privacy Officer at NeuStar, Inc.

    Moderator - Roger Cochetti - Principal at RJC Associates

    Coffee, refreshments, and lunch will be served

    Wednesday, February 19, 2014

    NIST Computer Security Division has 3 upcoming events - mark your calendars

    NIST Computer Security Division has announced three upcoming events. Mark your calendars! The NIST Computer Security Division is still planning to host more events and once the information becomes available to the general public, an email will be sent out to this mailing list.

    1. Cryptographic Key Management Workshop 2014
    March 4-5, 2014
    NIST Gaithersburg, Maryland

    For more information regarding the Cryptographic Key Management workshop, please visit the workshop’s webpage on the NIST Computer Security Division website:
    http://www.nist.gov/itl/csd/ct/ckm_workshop2014.cfm

    2. FISSEA 27th Annual Conference
    March 18-20, 2014
    NIST Gaithersburg, Maryland

    For more information regarding the FISSEA Conference, please visit the FISSEA website on the NIST CSRC website at: http://csrc.nist.gov/fissea/

    3. Privacy Engineering Workshop
    April 9-10, 2014
    NIST Gaithersburg, Maryland

    For more information regarding the Privacy Engineering Workshop, please visit the workshop’s webpage for more information on the NIST Computer Security Division website:
    http://www.nist.gov/itl/csd/privacy-engineering-workshop.cfm