Friday, October 03, 2014

America Income Life Ins Co v Google NDAL :: Dismissed Per Sec. 230(c) :: Case Summary

AMERICAN INCOME LIFE INSURANCE COMPANY v. GOOGLE, INC., Dist. Court, ND Alabama 2014

Facts Plaintiffs American Income Life Insurance Company and Scott Sonnenberg (collectively "plaintiffs") filed this action in the Circuit Court of Jefferson County, Bessemer Division, against Google and "X and Y, fictitious parties operating websites Google, Inc., chooses to reward with prominent placement in all its search engine results, known only to Plaintiff[s] as operators of `pissedconsumer.com' and `scam.com.'" Specifically, plaintiffs allege: The Fictitious Defendants' banners and content, broadcast via Defendant Google, Inc.'s search engine throughout Alabama, via hundreds of thousands of computer terminals, violates the Alabama Deceptive Trade Practices Act by falsely asserting that "American Income Life is a Scam."

Cause of Action: The substance of plaintiffs' Complaint is that certain business practices by defendants violate the Alabama Deceptive Trade Practices Act. Defendant moves to dismiss pursuant to 47 U.S.C. § 230(c), The Good Samaritan Provision of the Communications Decency Act.

Rule: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1).

Analysis "Google cannot be held liable for search results that yield content created by a third party."

[T]he only allegations in the Complaint about actions taken by Google in support of the conclusory allegation that Google "intentionally disparaged the goods, services, or business of Plaintiff by false and/or misleading representations of fact" are that Google "offer[s] dozens of product and services, including various forms of advertising and web applications," "determine[s] which [web pages] offer `content of value,'" "assess[es] the importance of every web page," "touts its patented `Page Rank' algorithm," "analyze[s] which sites are the `best sources of information across the web' for its seller-assisted marketing plan," "afford[s] prominent placement in its search engine broadcasting to the Fictitious Defendants," and "broadcast[s]" the "fictitious defendants' banners and content." After careful review of the Complaint, the court finds that plaintiffs clearly allege that Google is an interactive computer service, but not an information content provider because there are no allegations that Google originated, developed, or modified the disputed content. Instead, the face of the Complaint alleges that Google assesses the value of content across the internet and "broadcasts" the content provided by scam.com and pissedconsumer.com via its search engine. Without allegations that Google creates the disputed information, specifically the alleged false and misleading representations, plaintiffs' efforts to treat Google as the publisher of those representations fail under § 230. See [47 U.S.C.] § 230(f)(3).

The Complaint contains no allegation that Google created any content that represented American Income Life as a scam. Although the gripe sites's content was broadcast and/or returned as a result of keyword searches of "American Income Life" on Google's website, the Complaint does not allege that Google created or otherwise developed any content stating that American Income Life is a scam.

Thursday, October 02, 2014

Ugh! No! Trademarking a Few Letters Does Not Mean Any Domain Name Using Those Letters is a Cybersquatter!

In Plaintiff's corner we have Deckers Outdoor Corporation which sells footwear under its UGG brand. In Defendant's corner we have Ozwear, an Australian company that sells sheepskin footwear, and has the domain names ozwearuggs.com and ozwearuggs.com.au. Plaintiff alleges, among other things, that Defendant is a cybersquatter.

Defendant has not responded and one of the things that is interesting about this case is that Plaintiff moves for default judgment. It is interesting because, even though Defendant did not appear, Plaintiff loses!

There are a couple of problems with Plaintiff's cybersquatter claim. As we know, in order to make out a cause of action for cybertsquatting, Plaintiff must
show that 1) Defendants have or had a "bad faith intent to profit from that mark" and 2) "registers, traffics in, or uses a domain name that" is identical or confusingly similar to a mark that was "distinctive" or "famous" at the time of registration of the domain name, or causes dilution of a mark that was famous at the time of the domain name's registration. 15 U.S.C. § 1125(d)(1)(A).
Plaintiff's trademark is three letters: "UGG." Defendant's domain name contains its own name "ozwear" plus those three letters "ugg" plus an "s."

And here's a problem. The term "uggs" is generic for sheepskin boots ~ while "UGG" itself is not generic but is Plaintiff's distinctive trademark.

So if I add an "s" to a distinctive trademark, is it no longer a trademark? Maybe. If adding an "s" turns a distinctive trademark into a generic term, then the trademark owner has a problem. For instance, notes the court, if "CHIP" is a distinctive trademark and you add "s" to make "chips" ~ then the trademark owner don't own every domain name that has "chips" in it.

Plus, notes the court, Defendant uses its own name in the domain name attached to "uggs" to make quite clear that the consumer is not going to Plaintiff's Decker's website but to Defendant Ozwear's website.
After reviewing Plaintiff's allegations, the Court finds that Plaintiff does not allege sufficient facts to show that Defendants' use of the term "uggs" in Defendants' domain names is "confusingly similar" to Plaintiff's UGG Trademark. Plaintiff also does not allege sufficient facts to show that the term "uggs" in Defendants' domain names dilutes Plaintiff's famous UGG mark.
Even in a default judgment case, Plaintiff loses. Tip O' The Hat to the Judge on this one.

Joseph v. Amazon.com, WDWA :: Dismissed per Sec. 230(c) :: Case Summary

Joseph v. Amazon. com, Inc., Dist. Court, WD Washington 2014 (granting Defendant's motion to dismiss based on 47 U.S.C. 230(c), Good Samaritan Provision of the Communications Decency Act).*

Dr. Rhawn Joseph, Ph.D., proceeding pro se, brings this action against Amazon.com, Inc. ("Amazon") and its CEO Jeff Bezos. … Dr. Joseph is an "author and science book publisher" who has sold his books online through Amazon`s website. He relies on "print on demand" ("POD") technology to print the books he sells.

Dr. Joseph filed this putative class action lawsuit on December 10, 2012 in the Northern District of California. …Plaintiff also alleges that Amazon regularly "publishes and copyrights defamatory and libelous statements about competitors including Plaintiff." He argues in his Complaint and briefing that Amazon is responsible for reviews that he believes to be defamatory, though the allegations are scattered and unclear.

D. Plaintiff's State-Law Defamation and Libel Claims are Barred by Section 230 of the CDA

As the Court understands the Complaint, Plaintiff alleges that Amazon unlawfully published defamatory anonymous reviews of Plaintiff`s books (and Plaintiff) on its website. Amazon argues in its opposition and cross-motion that Dr. Joseph`s claim fails as a matter of law because (i) Amazon is protected from liability under the Communications Decency Act of 1996, 47 U.S.C. § 230, for statements made by reviewers on its website; and (2) the alleged statements are all matters of opinion and are thus not actionable. Upon review, the Court agrees that Section 230 immunity bars Dr. Joseph`s claim against Defendants. Amazon and Mr. Bezos are entitled to judgment on the pleadings on this claim, or in the alternative, summary judgment.

Section 230 of the Communications Decency Act ("CDA") "immunizes providers of interactive computer services against liability arising from content created by third parties." Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc); Carafano v. Metrosplash.com, 339 F.3d 1119, 1122 (9th Cir. 2003). The statute provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1). Ultimately, a defendant is entitled to § 230 protection as long as (1) it is a provider or user of an "interactive computer service," (2) the asserted claims "treat the defendant as a publisher or speaker of information," and (3) the challenged communication is "information provided by another content provider." Batzel v. Smith, 333 F.3d 1018, 1037 (9th Cir. 2003).

Amazon is entitled to § 230`s protection from Plaintiff`s defamation/libel/slander/trade libel claim. Amazon constitutes an "interactive service provider," which the CDA defines as a provider of an information service or system that "enables computer access by multiple users to a computer server." 47 U.S.C. § 230(f)(2); see Corbis Corp. v. Amazon.com, Inc., 351 F.Supp.2d 1090, 1118 (W.D. Wash. 2004) (no dispute that Amazon is an interactive service provider for CDA purposes); Schneider v. Amazon, 108 Wn.App. 454, 463 (Wash. 2001) (finding Amazon to be an interactive service provider and entitled to immunity from claims based on defamatory reviews by third parties). Plaintiff`s Complaint alleges that Amazon operates a website that allows consumers to purchase items online, i.e., to access Amazon`s servers by placing orders and browsing its online store. (See Dkt. No. 1 at ¶ 5.) Second, Dr. Joseph`s claim, whether labeled as a defamation, libel, slander or trade libel cause of action, faults Amazon for acting as the publisher of the reviews. (See, e.g., Dkt. Nos. 1 at ¶ 60 ("Amazon published, copyrighted and claimed ownership" of the allegedly libelous statements); 43 at ¶ 85 ("The above are just a few examples of anonymous[,] defamatory, libelous reviews published by the Defendants."). The CDA`s express terms preclude him from treating Amazon as a publisher or speaker of the information at issue, which is necessary for his state-law claims to succeed. See Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101 (9th Cir. 2009) (recognizing that "the cause of action most frequently associated with the cases on section 230 is defamation[,]" but explaining that the statute`s protection extends beyond defamation causes of action); Kimzey v. Yelp Inc., ___ F.Supp.2d ___, 2014 WL 1805551 (W.D. Wash. 2014) (unfair business practices, malicious libel, and libel per se claims barred against website that allowed users to post reviews of businesses). Finally, the statements alleged were made by third-party reviewers commenting on Dr. Joseph`s books and videos, and Dr. Joseph himself. (See generally Dkt. Nos. 1 at ¶¶ 25-26, 60; 43 at ¶ 85.) They accordingly constitute "information provided by another content provider" under the CDA`s terms. See 47 U.S.C. § 230(f)(3) (defining "information content provider" as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service."). In sum, Plaintiff`s claim against Amazon is barred under § 230 of the CDA.

Dr. Joseph counters this inevitable conclusion with a number of arguments. First, he alleges and argues that the CDA does not apply because Amazon makes "editorial" decisions about which product reviews to publish and which to delete. This argument is without merit. The Ninth Circuit has made clear that such editorial acts (even assuming they are true) are protected: "[S]o long as a third-party willingly provides the essential published content, the interactive services provider receives full immunity regardless of the specific editing or selection process." Carofano, 339 F.3d at 1124. Whether the website operator removes certain reviews, publishes others, or alters the content, it is still entitled to CDA immunity, since those activities constitute a publisher`s traditional editorial functions. Roommates.com, 521 F.3d at 1179-80 ("[A]ny activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230."). It is no surprise then that Courts have repeatedly barred similar claims against websites that allow anonymous reviews or other allegedly defamatory content to be posted by third parties. See, e.g., id.; Black v. Google Inc., 457 Fed. Appx. 622 (9th Cir. 2011) (unpublished) (Google not liable for anonymous negative business reviews posted in its online business directory); Kimzey, 2014 WL 1805551, at *2-3 (Yelp! website entitled to CDA immunity from claims based on reviews posted on its site).

Dr. Joseph also argues that Amazon is the "owner" of statements because it "copyrights" them after they are posted. As Defendants' point out, this argument appears to be factually incorrect—Amazon`s standard Conditions of Use expressly state that customers posting reviews own the content and merely grant Amazon a license to use it—and in any event, is unpersuasive as a legal argument because Dr. Joseph still alleges nothing more than Amazon`s fault for publishing content first created and posted by third-parties. On a different note, Plaintiff argues that CDA cannot apply because the reviews make defamatory statements about him as a person rather than about his books. Such an argument is without merit. The essential elements of CDA immunity do not turn on the substance of the alleged statements, but rather, on the party who is allegedly liable for them and whether that party must be deemed a "publisher" to incur liability. See, e.g., Gavra v. Google Inc., Case No. C12-6547, 2013 WL 3788241, at *2-3 (N.D. Cal. July 17, 2013) (claims based on allegedly defamatory videos about other individuals posted on YouTube barred under § 230).

Finally, Dr. Joseph implies that the individuals who posted the allegedly defamatory and libelous statements about him online were "directly associated with the Defendants and may be an employee of Amazon." (Dkt. No. 1 at ¶ 71.C.) This argument fails for a number of reasons. First, Dr. Joseph`s Complaint itself contains insufficient allegations to support a conclusion that Amazon authored any content. Plaintiff relies on nothing more than "mere speculation" to allege that some unidentified Amazon employee might have authored the negative commentary about him without explaining why or how that might be the case. Such allegations are wholly insufficient to avoid § 230`s reach. See, e.g., Levitt v. Yelp! Inc., Case No. C10-1321, 2011 WL 5079526, at *2 (N.D. Cal. Oct. 26, 2011) (rejecting similarly speculative assertions that unidentified Yelp employees authored allegedly defamatory reviews). Additionally, even if the Court accepted this conclusory allegation as sufficient, summary judgment against Plaintiff would be warranted because he provides absolutely no evidence to support his assertion that any Amazon employee posted the reviews at issue. On the other hand, Amazon has provided a sworn declaration clarifying that Amazon neither creates nor controls the content of any third-party reviews, except that it reserves the right to delete reviews that violate its published policies. That alone would be sufficient to justify summary judgment for Amazon.

In sum, the Court concludes that Amazon is entitled to § 230 immunity for Plaintiff`s "libel/defamation/slander/trade libel" claim.



* The case involved several causes of action. Cybertelecom focuses only on the federal internet causes of action.

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.