Recent Federal Developments: Open Internet and Title II

1. Open Internet and Title II: Recent Federal DevelopmentsMaryland Digital Government SummitJune 4, 2015 Casey Lide, Principal Baller Herbst Stokes & Lide, P.C. Washington, D.C. www.baller.com

2. DISCLAIMER This presentation does not constitute legal advice and should not be interpreted as such. For advice on federal, state or local law, please consult qualified legal counsel.

3. OVERVIEW Our focus today: • FCC’s Open Internet Rules (i.e., “Net Neutrality”) • Title II Reclassification of Broadband Internet Access Service • Practical Effects and Prognosis

4. FCC Open Internet Order – Some History November 2005: “Now what they would like to do is use my pipes free, but I ain’t going to let them do that because we have spent this capital and we have to have a return on it. … Why should they be allowed to use my pipes? The Internet can’t be free in that sense, because we and the cable companies have made an investment and for a Google or Yahoo or Vonage or anybody to expect to use these pipes free is nuts.” -- SBC CEO Ed Whitacre

5. FCC Open Internet Order – Some History • 2010 Open Internet Rules • Transparency, no blocking, no unreasonable discrimination • Section 706 • Verizon v. FCC (January 2014): • D.C. Circuit overturns 2010 Open Internet rules (except for transparency) • Court upholds FCC’s authority under Section 706, but “[g]iven the Commission’s still-binding decision to classify broadband providers . . . [a]s providers of ‘information services,’ open Internet protections that regulated broadband providers as common carriers would violate the Act.” • March 12, 2015: FCC Order on Remand (“Open Internet Order”)

6. Section 706 Challenge to Barriers Section 706, 47 U.S.C. §1302 Advanced telecommunications • (a) In general. The Commission and each State commission with regulatory jurisdiction over telecommunications services shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans … by utilizing … other regulating methods that remove barriers to infrastructure investment. • (b) Inquiry. The Commission shall … annually … initiate a notice of inquiry concerning the availability of advanced telecommunications capability to all Americans. … In the inquiry, the Commission shall determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion. If the Commission’s determination is negative, it shall take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market.

7. Open Internet Rules • Key “Open Internet” Rules: • 3 “Bright Line” Rules: • No Blocking (subj. to “reasonable network management”) • No Throttling (subj. to “reasonable network management”) • No Paid Prioritization • Catch-all: • No Unreasonable Interference / Disadvantage

8. Open Internet Rules • Transparency (Enhanced) • Fewer than 100k subscriber = temp. exemption from enhancements; must still comply with 2010 rules • 2010 rules: publicly disclose network mgt. practices, performance and commercial terms • Enhanced: promo rates, data caps, packet loss • Equal application to fixed and mobile • Interconnection issues on a case-by-case basis

9. Title II Reclassification • Why: • Jurisdiction for implementation of Open Internet rules (along with Section 706) • Desire for regulatory symmetry, simplicity (unstated) • What: • Radical change in regulatory treatment of “broadband Internet access service” (BIAS) • BIAS = “telecommunications service” (“telecommunications,” offered on a common carrier basis) • “Light touch Title II regime” applies

10. Title II Reclassification • The Communications Act of 1934, as amended, consists of seven major sections or “titles”: • Title I – General Provisions • Title II – Common Carriers • Title III – Provisions related to radio • Title IV – Procedural and administrative provisions • Title V – Penal provisions, forfeitures • Title VI – Cable communications (added by CCPA of 1984) • Title VII – Miscellaneous provisions

11. Title II Reclassification • “Telecommunications service” = common carrier = Title II • Previously: • BIAS as an “information service” integrating “telecommunications” and “information service” components (Brand X, etc.) • Basically unregulated. Not subject to Title II • Open Internet Order: • BIAS is a “telecommunications service” subject to regulation under Title II. Other “information services, such as email and online storage,” may be offered alongside, but the core service – high speed access to the Internet – is “telecommunications.” • Bundling of DNS no longer converts the BIAS into an integrated information service. It’s “telecommunications system management.”

12. Title II Reclassification • “Broadband Internet Access Service”: “a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints” • “Mass market”: • “[S]ervices marketed and sold on a standardized basis to residential customers, small businesses and other end-user customers such as schools and libraries.” • Specifically includes BIAS purchased via E-Rate/RHP, or using network supported by CAF. • Does not include “enterprise service offerings or special access services, which are typically offered to larger organizations through customized or individually negotiated arrangements.”

13. Title II Reclassification: Application and Forbearance • Some aspects of Title II apply to BIAS, some don’t. • FCC forbears from 27 provisions of Title II of the Communications Act, and over 700 Commission rules and regulations • Open Internet Order states the following “core requirements” do apply: • Open Internet rules • Infrastructure Access Rights and Obligations (Section 224) • “Core Title II Obligations” • Customer Privacy (Section 222) – Rules apply, but forbearance until more specifically addressed in separate rulemaking • Access for Persons With Disabilities • Universal service (Section 254) – Applies, but forbearance from contribution requirements, for now

14. Title II Reclassification: Application • Infrastructure Access Rights (Section 224): • Telecommunications carriers – now including BIAS – have right of access “to the poles of local exchange carriers and other utilities at just, reasonable, and nondiscriminatory rates. . .” • “Title II also offers other benefits at the state level, including access to public rights of way, which some broadband providers reportedly utilize to deploy networks”

15. Title II Reclassification: Application • Basic Rules; Consumer Protection; Enforcement & Redress • Section 201 – common carriage obligations, “just and reasonable” charges and practices • Except for ratemaking regulations adopted thereunder • Section 202 – no “unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service…” • Section 208 (broad right to complain of violations by common carriers); Sections 206, 207, 209 (adjunct to 208, relating to enforcement and redress)

16. Title II Reclassification: Application • Customer Privacy – Section 222 • CPNI rules apply, but forbearance from application to BIAS until details are addressed in separate rulemaking • Duty to take reasonable precautions to protect confidentiality of customers’ proprietary information; file annual CPNI report • “[W]e are not persuaded that the Commission’s current rules implementing section 222 necessarily would be well suited to broadband Internet access service.”

17. Title II Reclassification: Application • Provisions for Persons With Disabilities • Sections 225, 255 and 251(a)(2) and implementing regulations apply, which collectively advance access for persons with disabilities” • Forbearance from requirement that BIAS providers contribute to TRS fund “at this time”.

18. Title II Reclassification: Forbearance • FCC Forbearance: • Universal Service payment obligations (for now) • Rate regulation, tariff filing obligations, cost accounting rules • Many information collection and reporting provisions • “Interconnection and Market-Opening Provisions” (last-mile unbundling, resale obligations, etc)

19. Title II Reclassification: Forbearance • Universal Service Program (Section 254, 214(e)) • Section 254 does apply, but FCC forbears from sections implementing contribution requirements … for now • Might ultimately apply, after further proceedings. May be a long process. • If so, would presumably be a much lower percentage assessment than currently applies to providers of ”telecommunications” • “Freedom from Internet Tax Act” introduced March 16, 2015 (Rep. Mooney, R-W.VA.), would amend Communications Act to exempt BIAS from USP contributions • 499-A filing obligation might occur sooner

20. Title II Reclassification: Forbearance • Rate regulation, tariffs, cost accounting rules • Section 202 re: rate regulation • Section 203, 204 (tariffs) • Section 205 (rate practices)

21. Title II Reclassification: Forbearance • Many Information Collection and Reporting Obligations • Sections 211, 213, 215, 218-220: forborne • Obligation to file contracts (211); valuation of property (213); FCC authority to examine certain transactions (215); FCC authority to inquire into the management of the carrier’s business (218); authority to require annual financial and other reports (219); prescription of forms of accounts to be kept by carriers, depreciation prescription provisions (220).

22. Title II Reclassification: Forbearance • “Interconnection and Market-Opening Provisions” • Sections 251, 252, 256 • (Except for 251(a)(2), for purpose of Open Internet Rules) • Forbearance from • duty to interconnect • unbundling • duty to afford access to the poles, ducts, conduits, and rights-of-way  • resale obligations

23. Title II Reclassification: Other Issues • States: • BIAS is “interstate” in nature • Internet Tax Freedom Act prohibits states and localities from imposing “taxes on Internet access,” notwithstanding regulatory classification. (Watch City of Eugene v. Comcast, Ore. Sup. Court, re: ITFA and right of way fee issues) • States can’t act contrary to overall “regulatory scheme” set forth in the Order, including forborne provisions; FCC will exercise preemption; • No restriction of entry to market through certification requirements; no rate regulation through tariffs or otherwise • Leaves room for regulation of ROW rights, etc.

24. Title II Reclassification: Other Issues • “We note also that we do not believe that the classification decision made herein would serve as justification for a state or local franchising authority to require a party with a franchise to operate a “cable system” (as defined in Section 602 of the Act) to obtain an additional or modified franchise in connection with the provision of broadband Internet access service, or to pay any new franchising fees in connection with the provision of such services.” (fn 1285, paragraph 433)

25. Title II Reclassification: Other Issues • Wireless / “Mobile”: • BIAS offered on fixed or mobile basis = “telecommunications service” • BIAS “includes services provided over any technology platform, including but not limited to wire, terrestrial wireless (including fixed and mobile wireless services using licensed or unlicensed spectrum), and satellite.” • Nomenclature shift: from “wired” and “wireless” to “fixed” and “mobile” • Mobile BIAS is also CMRS, interconnected with “public switched network.” • “Public switched network” redefined to include “North American Numbering Plan, or public IP addresses.”

26. Title II Reclassification: Other Issues • VoIP: • VoIP is a “non-BIAS data service.” Not a “telecommunications service” under Title II. • Still subject to a variety of Title II-like obligations, imposed specifically on interconnected VoIP without categorizing it as “telecommunications service.” • Using a (VoIP) phone is not “telecommunications.” Using the Internet is. • Classification remains surprisingly unclear.

27. Title II Reclassification: Other Issues • Common carriage / private carriage analysis • Order does not compel offering on common carriage basis. • Some indication of a narrowing of “private carriage”: “Some individualization in pricing or terms is not a barrier to finding that a service is a telecommunications service. . . . That the individualized terms may be negotiated does not change the underlying fact that a broadband provider holds the service out directly to the public.” (para. 363) • Organizations relying on private carriage designation may wish to take a fresh look. • Internet Transport • Is “telecommunications.” No direct change. • Removes any doubt, based on expanded interpretation of “telecommunications” as a consequence of finding that BIAS is “telecommunications service.” • But not necessarily common carrier “telecommunications service”

28. Title II Reclassification: Prognosis • Prognosis: • Goes into effect June 12, 2015 • Motion for Stay or Expedition (D.C. Circuit): USTelecom, NCTA, CTIA-The Wireless Association, AT&T, ACA, CenturyLink, and WISPA (ruling requested by June 11) • Congress? • A settled implementation of principles set forth in the Order – or something else – may take years.

29. Title II Reclassification: Now What? • Watch for outcome of initial requests for stay of the rules. • Remember that a stay or legal decision concerning the Order may not affect everything in the Order • Watch for FCC announcements following effective date of rules. • EX: Form 499 filing requirement of “telecommunications service” providers? • Updates in BHSL annual Federal Compliance Memo

30. Q&A Q&A and Discussion Casey Lide, Principal Baller Herbst Stokes & Lide, P.C. 2014 P St NW, Suite 200 Washington, D.C. 20036 casey@baller.com

31. Wireless Facilities: DAS, Small Cell, Wi-Fi • “Distributed Antenna System,” small cell, outdoor Wi-Fi (esp. from cable) • DAS: multiple nodes connected via fiber, attached to pole/light pole, often utilize neutral host model, typically licensed spectrum • Small cell: often a single node, attached to pole/light pole, carrier centric model, typically licensed spectrum • WiFi: may be attached mid-span, typically unlicensed spectrum • Franchise/ ROW occupancy rights • Section 253 (extended to broadband) • Police power authority to manage public ROW – does existing franchise authority address right to be in ROW • Wireless siting/zoning regulations apply 47 U.S.C. 332(c)(7) and 6409(a) (47 U.S.C. 1445(a)) • Fee? • Attachment rights • Section 224 (extended to broadband) • Municipal exemption applies

32. Municipal Broadband: Section 706 Petitions • In 1999 the FCC issued its first 706 report using a broadband standard of 200 Kbps and found that it was being met • In the intervening years broadband has become an essential platform for nearly every facet of the information economy • In 2009 as part of the ARRA Congress allocated $7.2 billion to broadband infrastructure and mandated the development of a national broadband plan • In 2010 FCC revised definition of broadband to 4 Mbps/1Mbps, and found for the first time that not all Americans were getting broadband • Google Fiber Community program attracts thousands of cities • January 2014 – Verizon Corp. v. Federal Communications Commission, 740 F.3d 623 (D.C. Cir. 2014) -- Judge Silberman -- removal of barriers to municipal broadband is paradigmatic example of FCC authority under Section 706 • February – July 2014 -- FCC Chm. Wheeler supports preemption

33. Section 706 Petitions • July 2014 Chattanooga, TN and Wilson, NC file petitions under Section 706 for FCC to preempt state law restrictions on their ability to expand broadband beyond there current footprint • Both Chattanooga and Wilson provide gigabit fiber-to-the-home broadband service • Both cities maintain that they are surrounded by a digital desert and are ready, willing and able to expand broadband • Petitions generate strong record on community broadband • Broad public sector/private sector support • Framed as a local choice issue • President Obama endorses • Opposition from incumbent telephone and cable providers, conservative groups, states’ rights advocates

34. FCC Adopts Order Preempting TN and NC • February 26, 2015 – FCC adopts Memorandum Opinion and Order granting the EPB and Wilson petitions (WC Dockets No. 14-115 and 14-116) (http://goo.gl/uaeEAp) • Finds that the TN and NC laws are acting as barriers to broadband infrastructure development • Rationale: Not deciding whether complete bans would be unlawful. Where state has authorized municipality to provide broadband services, it can’t attach conditions contrary to federal policies. • Significant federal presence regulating Internet • Commercial barriers not subject to Nixon v. Missouri Municipal League “clear statement” standard. • Authority under Section 706 ”clear.”

35. FCC 706 Preemption Order • Wilson and EPB may expand their services to neighboring areas • In TN decision removes territorial restriction on broadband --Tenn. Code Ann. § 7-52-601 • In NC strikes down multiple provisions contained within HB 129 that in concert act to create barriers, raise economic costs, and impose delay • Decision applies to other similarly-situated entities in NC and TN • FCC invites petitions from other states • TN Attorney General has appealed in 6th Cir. • NC (expected but not filed as of date of paper) • Petitions for Stay (expected but not filed as of date of paper)

36. Congressional Response • Community Broadband Act of 2015 • Introduced by Senators Booker (D-NJ), King (I-ME), Markey (D-MA), and McCaskill (D-MO), and Wyden (D-OR). • Would remove state restrictions on municipal broadband networks • Bills to Strip the FCC of Authority • In August, House of Representatives passed measure proposed by Rep. Marsha Blackburn (R-TN) to prohibit FCC from using taxpayer funds to preempt state laws governing municipal broadband. No action in Senate. • On Feb. 26, Sen. Thom Tillis (R-NC) and Rep. Blackburn introduced bills declaring that the FCC does not have authority to preempt State law under Section 706.