Posted by: Hank Hultquist on September 13, 2016 at 1:56 pm
Yesterday, AT&T filed comments with the Office of Management and Budget on the FCC’s woefully deficient analysis of the burdens associated with the so-called enhanced transparency requirements adopted in the 2015 Open Internet Order (OIO). The Commission’s analysis evinces a complete disregard for its responsibilities under the Paperwork Reduction Act. The FCC has not specifically identified the things Internet service providers (ISPs) must do to comply with the new transparency requirements; it has not separately estimated the burden of each requirement; it has not explained the benefits that would justify these requirements; and its lowball estimate of the overall costs is absurd on its face.
By way of background, the PRA requires agencies like the FCC to minimize the burden of required data collections. The FCC must obtain approval from OMB before any such collection can take effect. In this case, the FCC has had ample time to undertake a thorough analysis of the paperwork burdens of the OIO, yet has submitted a superficial, conclusory and slipshod analysis that OMB should reject. The treatment of just one of the new requirements, disclosure of packet loss, demonstrates the inadequacy of the FCC’s analysis.
To comply with the new transparency requirements, wireless providers will have to measure something they have not been required to measure or report previously (packet loss), in geographic areas where they do not currently take any similar performance measurements and may not have previously measured, and during undefined “peak hour” time periods. For AT&T, compliance with this requirement would cost far more than the FCC is estimating. Indeed, it could very well cost AT&T alone more than what the FCC has estimated for the entire industry to comply with all of the FCC’s transparency requirements because it could require extensive additional drive testing at a cost of many millions of dollars each year. Yet the FCC has estimated that the burden to the entire industry of all its transparency requirements, included those adopted in 2010, is only $640,000.
Posted by: AT&T Blog Team on March 4, 2015 at 8:03 pm
The following statement may be attributed to Jim Cicconi, AT&T Senior Executive Vice President of External and Legislative Affairs:
“Netflix has spun a lot of tales during this FCC proceeding. But it’s awfully hard to believe their CFO would go into a major investor conference and misspeak on an issue supposedly so crucial to their future. More likely he had an attack of candor. At least ’til his company’s lobbyists got hold of him. I’m sure they’ll also have some terrific spin to explain Netflix’s data cap deal in Australia.”
Posted by: AT&T Blog Team on February 4, 2015 at 2:44 pm
Attribute the following to AT&T Senior Executive Vice President-External and Legislative Affairs Jim Cicconi:
“We continue to believe that a middle ground exists that will allow us to safeguard the open Internet without risk to needed investment and years of legal uncertainty. We were able to find such a path in 2010, and will do our very best to seek such a path today. We also hope that proponents of Title II will consider that any FCC action taken on a partisan vote can be undone by a future commission in similar fashion, or may be declared invalid by the courts. The best way to ensure that open Internet protections, investment and innovation endure is for people of good faith to come together on a bipartisan basis for that purpose. We believe such an opportunity exists today.”
Posted by: Hank Hultquist on February 2, 2015 at 4:13 pm
Today, AT&T made a couple of filings at the FCC regarding its authority to reclassify Internet service providers (ISPs) as common carriers. Given that this decision seems driven by political considerations, I hold out little hope that the FCC will alter its course, but the letters nonetheless try to set out what we see as significant infirmities with reclassification.
The first letter addresses the substantive question of whether ISPs are information service providers, telecommunications service providers, or both. Much of the debate over this question has focused on the Supreme Court’s decision in Brand X and, in particular, Justice Scalia’s dissenting opinion. Putting aside the Constitutional Law 101 principle that dissenting opinions are not binding precedent, Justice Scalia’s dissent made clear that, in his view, ISPs provide both an information service and a telecommunications service and that the telecommunications service ends where the information service begins. This comes through loud and clear in the various analogies he used to explain why he thought that ISPs provided a transmission service in addition to an information service. At one point he compares ISPs to pizzerias that offer a combination of pizza and home delivery. At another point he compares them to a pet store that sells dogs with a leash. At no time did he suggest that there was no pizza or dog in the transaction.
We disagree with Justice Scalia’s view that ISPs simultaneously offer both an information service and a telecommunications service. The FCC has long adhered to an interpretation of the statute under which these definitions are mutually exclusive. Such a reading follows naturally from the fact that, according to the statute, information services are provided via telecommunications. As consequence, and as noted by the Brand X majority, without mutual exclusivity all information services would become vulnerable to the artificial separation of their information and telecommunications components. In this construct, the definitions, which are intended to serve as Congressionally-defined boundaries for the FCC’s jurisdiction, become little more than semantic speed bumps.