Proposed Legislation Would Require Mobile Carriers to Provide Better Information to Consumers about “4G”

August 9, 2011 by Leave a Comment

Legislation pending in the U.S. House of Representatives would require mobile carriers to detail their “guaranteed minimum” data speeds and their network reliability statistics to potential customers. Sponsors of the New Generation Wireless Disclosure Act, such as Rep. Anna Eshoo (D-CA), say that the Act would give mobile customers more information about new 4G services.

As we discussed last year in our article last year, 4G versus 3G: Next Generation or Hoax?, to date there is no standard definition of 4G mobile service. What is currently labeled “4G” can provide “vastly different” speeds depending on the carrier and location.

Congresswoman Eshoo believes that, “Consumers deserve to know exactly what they’re getting for their money when they sign-up for a 4G data plan. The wireless industry has invested billions to improve service coverage, reliability, and data speeds, and consumers’ demand for 4G is expected to explode. But consumers need to know the truth about the speeds they’re actually getting.”

If passed, the Act would require mobile carriers to offer customers information on pricing such as caps on “unlimited” plans and would require carriers to disclose what technologies they use to deliver “4G” services along with what type of coverage the plans have in various geographic areas. Moreover, the Act would require the FCC to compare the prices and speeds of 4G data service at the 10 largest U.S. mobile carriers and give consumers a side-by-side comparison.

Not surprisingly, the CTIA, which represents the largest mobile carriers is arguing against this bill because it is an added layer of regulation attempting to tackle a complex issue. Alternatively, consumers groups support the bill arguing that the new legislation will empower consumers by helping them to shop for the best wireless plan for them.

To date, the New Generation Wireless Disclosure Act has been referred to committee. You can track the progress of the New Generation Wireless Disclosure Act here.

If you have questions about this issue, or if we may be of assistance to you, please feel free to contact us.

Filed under FCC Regulation, Legislation, Technology and Telecom Law

Rural Broadband Federal Legislative Update

September 13, 2010 by 1 Comment

Last month we wrote about the FCC’s efforts to promote broadband through the National Broadband Plan.  See Rural Broadband: Miles to Go Before We Sleep, July 16, 2010, GoingWiMax.com.   In this article we focus on the Rural Broadband Initiative Act of 2010, H.R. 4545, pending in Congress.

This Bill was introduced on January 27, 2010, and was referred to the Committee on Agriculture, and the Committee on Energy and Commerce “for a period to be subsequently determined by the Speaker.”  This Bill amends the Rural Electrification Act of 1936 to establish in the Department of Agriculture the Office of Rural Broadband Initiatives, to be headed by the Under Secretary for Rural Broadband Initiatives. If enacted, this Bill would give the Under Secretary the power to administer rural broadband-related grant and loan programs, conduct rural outreach, foster development of a comprehensive rural broadband strategic vision, assess technologies (including WiFi, WIMAX, DSL, cable, satellite, fiber, and broadband over power lines), serve as a single information source and provide technical assistance to develop broadband deployment strategies. The Bill also requires the Under Secretary to submit a comprehensive rural broadband strategy report to the President and to Congress, and it establishes a National Rural Broadband Innovation Fund of $20,000,000 for each of fiscal years 2008 through 2012. The Fund is to be used for experimental and pilot rural broadband projects and applications, including WiFI, WIMAX, DSL, cable, satellite, fiber, and broadband delivery over power lines.

This Bill and a related Bill (S.2880) introduced in the Senate late last year and also referred to Committee are important because they consolidate authority in the Under Secretary of Rural Broadband Initiatives to foster the development of rural broadband, to assess broadband strategies, and to oversee broadband projects. But don’t hold your breath waiting for this legislation to become law based on recent history, given the death of previous rural broadband development bills on the Hill during the last few years. Moreover, companies with deep pockets that are adverse to competing with publicly-funded broadband projects may have a vested interest in opposing this legislation.

Proponents of this legislation will argue that consolidated oversight of rural broadband development, and the commitment of public funds, are long overdue. Critics will likely oppose the expenditure of $20M of taxpayer dollars during these tough times for rural broadband projects that may never bear fruit. Most broadband companies would prefer to develop and compete for these projects themselves, but will they do so in sparsely populated rural areas where the need is greatest but where the return on investment is significantly less than in urban and suburban areas?  If passed, how will this Bill dovetail with the FCC’s National Broadband Plan? Also, does the Bill go far enough to promote rural broadband in the face of continuous legislative challenges in many states to stop or curtail municipal broadband projects?

We welcome your thoughts. Feel free to comment!

If you have questions about this issue, or if we may be of assistance to you, please feel free to contact us.

Filed under FCC Regulation, Legislation, Technology and Telecom Law

Federal Court Rules on Net Neutrality

April 7, 2010 by Leave a Comment

Washington, DC: In 2007 several subscribers to Comcast’s high-speed Internet service filed a complaint with the FCC challenging Comcast’s interference with their use of peer-to-peer networking applications. Peer-to-peer programs allow users to share large files directly with one another without going through a central server, but such programs also consume significant amounts of bandwidth. Concluding that it had jurisdiction over Comcast’s network management practices and that it could resolve the dispute through adjudication rather than through rulemaking, the FCC ruled that Comcast had “significantly impeded consumers’ ability to access the content and use of the applications of their choice” and that its method of bandwith management “contravened . . .federal policy.”    In re Formal Compl. Of Free Press & Public Knowledge Against Comcast Corp. for Secretly Degrading Peer-to-Peer Applications, 23 F.C.C.R. 13,028, 13052-54, ¶¶ 43, 44 (2008) (“Order”).

Yesterday the U.S. Court of Appeals for the District of Columbia vacated the FCC’s 2008 Order barring Comcast from interfering with its customers’ use of peer-to-peer networking applications. Specifically, the Court ruled that the Communications Act “cannot support its [the FCC’s] exercise of ancillary authority over Comcast’s network.”  Comcast Corporation v. Federal Communications Commission, et. al., No. 08-1291 (D.C. Cir. April 6, 2010). The Court vacated the FCC’s Order “[b]ecause the Commission has failed to tie its assertion of ancillary authority over Comcast’s Internet service to any “statutorily mandated responsibility . . .”  Id. at 36.

This decision has implications far beyond the FCC’s efforts to adopt net neutrality regulations, and raises questions about the FCC’s ability to regulate broadband. This ruling effectively means that FCC lacks the authority to force Internet service providers to keep their networks open to all forms of content.  This decision also follows the FCC’s recently-announced national broadband-expansion plan, and it could impact the FCC’s plans to fund the deployment of broadband nationally. The decision also comes as Comcast is pursuing FCC approval of its proposed $30 billion merger with NBC Universal, which would expand Comcast’s control over a vast library of television and movie programming.

In light of this decision, the FCC may appeal it. It may also attempt to reclassify broadband from a relatively lightly regulated information service to a more heavily regulated telecommunications service. This decision could also prompt new legislation to broaden the FCC’s ability to regulate Internet services.

Filed under Court Decisions, Legislation, Technology and Telecom Law

FCC Reserves the Right to Search Without Warrant

May 26, 2009 by Leave a Comment

The FCC claims that the Communications Act of 1934 gives it authority to regulate anything using RF energy – “we have the right to inspect it to make sure it is not causing interference” says FCC spokesman David Fiske. That includes devices like Wi-Fi routers that use unlicensed spectrum, Fiske says. The FCC claims to have “the right to enter your home without a warrant at any time of the day or night in order to inspect” any equipment that uses the airwaves to transmit data, according to Wired Online.

The Agency is claiming that it has the same rights over licensed or unlicensed radio frequency devices as it does to regulate television and radio stations. As many skeptics of this policy have pointed out, the FCC’s claims have not yet been tested in the courts for legality.

According to Electronic Frontier Foundation lawyer Lee Tien, “It is a major stretch beyond case law to assert that authority with respect to a private home, which is at the heart of the Fourth Amendment’s protection against unreasonable search and seizure. When it is a private home and when you are talking about an over-powered Wi-Fi antenna — the idea they could just go in is honestly quite bizarre.”

George Washington University Professor Orin Kerr, a constitutional law expert, concurred, “The Supreme Court has said that the government can’t make warrantless entries into homes for administrative inspections.” Additionally, “The FCC’s online FAQ doesn’t explain how the agency gets around that ruling.”

The FCC has attempted to assert its authority over a number of allegedly pirate radio station operators’ who were left notices asserting, “whether you operate an amateur station or any other radio device, your authorization from the Commission comes with the obligation to allow inspection.” When one individual refused to let the FCC into his home, he was fined $7,000. However, that fine was reduced to $225 when he proved he had very little income.

FCC representative Fiske stated, “The only right they have is to inspect the equipment. If they want to seize, they have to work with the U.S. Attorney’s office.” However, according to Wired Online, “if inspectors should notice evidence of unrelated criminal behavior – say, a marijuana plant or stolen property – a Supreme Court decision suggests the search can be used against the resident.”

The FCC’s seemingly expanded powers may be cause for concern. The FCC has now asserted that it has the right, if it chooses, to go into any individuals home, without a search warrant, to “any of the equipment that individuals have that may use radio frequencies.” This includes, but is not limited to baby monitors, wi-fi transmitters, radios, and the like. These types of devices are found in nearly every home in the country.

Filed under Court Decisions, FCC Regulation, Legislation, Technology and Telecom Law

ACLU Vows to Challenge FISA Immunity Provisions

July 15, 2008 by Leave a Comment

Washington, DC: The ACLU plans to challenge the FISA bill passed on July 9, 2008, by the Senate. The Foreign Intelligence Surveillance Act (“FISA”) grants telecommunications companies, which helped the National Security Agency spy on Americans, retroactive civil immunity from lawsuits. According to the New York Times, “the new FISA bill clarifies the scope of government intelligence activities, depending on the type and origin of the communication, and provides greater latitude to use  technology to track foreign terrorism suspects overseas.”

The new version of the bill still requires a warrant to track Americans in the U.S., but does not require permission to track foreign citizens who are oversees, regardless of whether the surveillance passes through domestic-based communication networks. “If the overseas target is a U.S. citizen, a warrant would be required — regardless of where and how the spying takes place.”

There have been multiple attempts over the past three years to revise the FISA bill. Sens. Russ Feingold (D-WI) and Chris Dodd (DCT) co-sponsored an amendment to FISA that would have eliminated the retroactive immunity provision from the bill.  However, this, and two other modified bills were defeated on Wednesday. Instead, the Senate approved the FISA update by a 69-28 vote. Senator Barack Obama has come under scrutiny over the past few weeks for his position on FISA. Originally, he stated that he opposed any measure that would grant immunity to telecom companies, but two weeks ago said that he would vote for the compromise bill stating that it is “not all that I would want [but] given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards too important to delay.”

However, all proposed amendments, including the “compromise” bill were defeated. Senator Obama voted for the “improved but imperfect bill” after a failed attempt earlier on Wednesday to strip the immunity provision from the bill. Senator Obama’s campaign stated: “Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, Senator Obama chose to support the FISA compromise.” Senator John McCain missed the vote while campaigning in Ohio, but has continuously stated that he supported full immunity granted to telecom companies in the FISA bill.

After the FISA bill passed the Senate, critics of the bill vowed to fight the legislation. Jameel Jaffer, Director of the ACLU National Security Project said: “The bill allows the warrantless and dragnet surveillance of Americans’ international telephone and email communications. It plainly violates the Fourth Amendment. This fight is not over. We intend to challenge this bill as soon as President Bush signs it into law.”

The Electronic Frontier Foundation, an organization representing plaintiffs in pending lawsuits against phone companies, also stated they would fight FISA. Senior Staff Attorney Kurt Opsahl said: “We thank those senators who courageously opposed telecom immunity and vow to them, and to the American people, that the fight for accountability over the President’s illegal surveillance is not over. Even though Congress has failed to protect the privacy of Americans and uphold the rule of law, we will not abandon our defense of liberty. We will fight this unconstitutional grant of immunity in the courtroom and in the Congress, requesting repeal of the immunity in the next session, while seeking justice from the judiciary. Nor can the lawless officials who approved this massive violation of Americans’ rights rest easy, for we will file a new suit against the government and challenge warrantless wiretapping, past, present and future.”

However, advocates of the bill, like President Bush, called the Senate vote “long overdue.” President Bush said he would sign the bill into law quickly for the sake of national security. He stated that “even in an election year, we can come together and get important pieces of legislation passed.”

What do you think: Should FISA grant retroactive immunity to telecom companies? Is FISA important for national security?

Filed under Legislation, Technology and Telecom Law

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