Tag: NPRM

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FCC to Tackle Data Breaches

The FCC has a new Notice of Proposed Rulemaking (NPRM) concerning an update of customer proprietary network information (CPNI) rules. The FCC wants to strengthen the rules concerning notifying customers of a data breach.

CPNI rules are codified at the FCC from Section 222(a) of the Telecommunications Act of 1996. CPNI rules are intended to protect customer data. For those that haven’t read CPNI rules for a while, Section 222(a) rules state:

Except as required by law or with the approval of the customer, a telecommunications carrier that receives or obtains customer proprietary network information by virtue of its provision of a telecommunications service shall only use, disclose, or permit access to individually identifiable customer proprietary network information in its provision of (A) the telecommunications service from which such information is derived, or (B) services necessary to, or used in, the provision of such telecommunications service, including the publishing of directories.

In plain English, this means that every telecom carrier must take steps to protect customer data that is collected as part of providing a telecommunications service.

There have been a number of well-known data breaches in the industry, and the FCC is proposing to tighten the rules related to notifying customers about data breaches. For example, the current rules give carriers seven days to notify customers of breaches of their personal data, and the NPRM will propose to drastically shorten that time frame. The FCC will also be proposing that carriers must disclose inadvertent breaches of data that were caused by the carrier, as opposed to a malicious outside party. Finally, carriers will be required to report all data breaches to the FCC, the FBI, and the U.S. Secret Service.

For those of you not familiar with the NPRM process, the FCC uses this method to notify the industry of proposed changes in regulations. An NPRM spells out the specific proposed rule changes by showing the proposed change in FCC rules. The FCC then invites comments on the proposed rule changes and often asks additional questions to get feedback. The FCC sometimes adopts the NPRM as proposed but often modifies the proposed rules based upon the comments received.

It doesn’t seem likely that the FCC will allow an opt-out of these rule changes for small carriers and these rules are likely to apply to everybody, like the current CPNI rules.

As is usual these days, there is a regulatory twist. As it sits today, the FCC no longer regulates broadband since it is not classified as a telecommunications service. The Section 222 rules only apply to telecommunications carriers and the new rules might only apply to carriers that offer traditional telephone service, cellular services, or anything else remaining under FCC jurisdiction. An ISP that only provides broadband might be exempt from CPNI rules – although you could face an expensive legal fight if the FCC sees it otherwise. An awful lot of our regulatory rules are sitting in the gray areas these days.

However, if the FCC eventually brings broadband back into the regulatory fold, as is expected, then these rules would apply to all ISPs selling broadband services.

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Regulation - What is it Good For? Technology

FCC Proposes New WiFi Spectrum

On December 17 the FCC issued a Notice of Proposed Rulemaking for the 5.9 GHz spectrum band that would create new public spectrum that can be used for WiFi or other purposes. The 5.9 GHz spectrum band was previously assigned in 2013 to support DSRC (Dedicated Short Range Communications), a technology to communicate between cars, and between cars and infrastructure. The spectrum band covered by the order is 75 megahertz wide. The FCC suggests that the lower 45 megahertz be made available to anybody as new public spectrum. They’ve assigned the highest 20 megahertz for a newer smart car technology called C-V2X. The FCC tentatively kept the remaining bandwidth for the older DSRC technology, dependent upon the users of that technology convincing the agency that it’s viable – otherwise, it also converts to C-V2X usage.

DSRC technology has been around for twenty years. The goal of the technology is to allow cars to communicate with each other and to communicate with infrastructure like toll booths or traffic measuring sensors. One of the biggest benefits touted for DSRC is increased safety so that cars will know what’s going on around them, such as when a car ahead is braking suddenly.

For the new technology, the V2X stands for vehicle-to-everything. Earlier this year Ford broke from the rest of the industry and dropped research in DSRC communications in favor of C-V2X. Ford says they will introduce C-V2X into their whole fleet in 2022. Ford touts the technology as enabling cars to ‘see around corners’ due to the ability to gather data from other cars in the neighborhood. They believe the new technology will improve safety, reduce accidents, allow things like safely forming convoys of vehicles on open highways, and act as an important step towards autonomous cars. C-V2X uses the 3GPP standard and provides an easy interface between 5G and vehicles.

This decision was not without controversy. The Department of Transportation strenuously opposed the reduction of spectrum assigned for vehicle purposes. The DOT painted the picture of the spectrum providing a huge benefit for traffic safety in the future, while the FCC argued that the auto industry has done a poor job of developing applications to use the spectrum.

This is an NPRM, meaning that there will be a cycle of public comments before the FCC votes on the order. I think we can expect major filings by the transportation industry describing reasons why taking away most of this spectrum is a bad idea. On the day of the FCC vote, Elaine Chao, the Secretary of Transportation said that the FCC is valuing Netflix over public safety – so this could yet become an ugly fight.

Perhaps the biggest news from the announcement is the big slice of the spectrum that will be repositioned for public use – a decision praised by the WiFi Alliance. The FCC proposes to make this public spectrum that is open to everybody, not just specifically for WiFi. The order anticipates that 5G carriers might use the spectrum for cellular offload. If the cellular carriers heavily use the spectrum in urban areas, then the DOT might be right and this might be a giveaway of 5G spectrum without an auction.

There is no guarantee that the cellular carriers will heavily use the spectrum. Recall a few years ago there was the opportunity for the cellular carriers to dip into the existing WiFi spectrum using LTE-U to offload busy cellular networks. The carriers used LTE-U much less than anticipated by the WiFi industry, which had warned that cellular offload could overwhelm WiFi. It turns out the cellular carriers don’t like spectrum where they have to deal with unpredictable interference.

Even if the cellular carriers use the spectrum for cellular offload in urban areas, the new public block ought to be mostly empty in rural America. That will create an additional spectrum band to help boost point-to-multipoint radios.

Regardless of how the new spectrum might be used outdoors, it ought to provide a boost to indoor WiFi. The spectrum sits just a little higher than the current 5.4 GHz WiFi band and should significantly boost home WiFi speeds and volume capability. The new spectrum will provide an opportunity to reduce interference with existing WiFi networks by providing more channels for spread home use.

This particular docket shows why spectrum decisions at the FCC are so difficult. Every potential use for this mid-range spectrum creates significant public good. How do you weigh safer driving against better 5G or against better rural broadband?

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Regulation - What is it Good For? Technology

FCC Proposes New WiFi Spectrum

At their recent open meeting the FCC announced that it is proposing to use up to 1,200 megahertz of the spectrum band between 5.925 GHz and 7.125 GHz (being referred to as the 6 GHz band) as unlicensed spectrum. This is a bold proposal and more than doubles the total amount of bandwidth that would be available for WiFi.

However, their proposal comes with several proposed caveats that will have to be considered before expecting the spectrum to be useful everywhere for rural broadband. First, the FCC proposal is that any place where the spectrum is currently being used for Broadcast Auxiliary Service and Cable TV Relay service that the spectrum only be licensed for indoor use.

In those places where the spectrum is being used heavily for point-to-point microwave service, the outdoor use would have to be coordinated with existing users by use of an automated frequency coordination system, or a database, that would ensure no interference. I assume one of the rules that must be clarified is a definition of what constitutes ‘heavy’ existing point-to-point use of the spectrum.

In places where there are no existing uses of the spectrum it sounds like it would be available for outdoor use as well as indoor use.

This band of spectrum would be a great addition to networks that provide point-to-multipoint fixed wireless service. The spectrum will have a slightly smaller effective delivery area than the 5.8 GHz WiFi ISM band now widely in use. The 5.8 GHz spectrum is already the workhorse in most fixed wireless networks and adding additional spectrum would increase the bandwidth that can be delivered to a given customer in systems that can combine spectrum from various frequencies.

The key is going to be to find out what the two restrictions mean in the real world and how many places are going to have partial or total restrictions of the spectrum. Hopefully the FCC will produce maps or databases that document the areas they think are restricted using their two proposed criteria.

This spectrum would also be welcome indoors and would add more channels for home WiFi routers, making it easier to cover a home and provide coverage to greater numbers of devices simultaneously. The FCC hopes the spectrum can be used everywhere for indoor use, but they are asking the industry if that causes any problems.

Note that this is not an order, but a proposal. The FCC released a draft of the Notice of Proposed Rulemaking on October 2, and after this vote they should soon publish a schedule for a public comment period from the industry and other interested parties.

WiFi has been a gigantic boon to the economy and it’s a great move by the FCC to provide additional WiFi spectrum, even if this turns out to be largely restricted to indoor use. However, everybody associated with rural broadband is going to hope this is decided soon and that the frequency is added to the toolbox for serving fixed wireless in rural areas.

Interestingly, this spectrum would make it easier for ISPs that claimed they can achieve universal 100 Mbps speeds for fixed wireless in the recent reverse CAF II auctions. Perhaps some of those companies were counting on this spectrum as a way to meet that claim.

It’s always hard to predict the speed of the FCC process. I see that various WiFi-related organizations are hoping this means use of the spectrum as early as sometime next year. However, we’ve often seen the FCC proceed a lot slower than what the industry wants and one of factors the FCC is going to take into consideration is the pushback from cellular companies that will likely want this to be licensed spectrum. Unfortunately, the large cellular companies seem to be getting everything on their wish list from this FCC, so we’ll have to see how that plays out.

I imagine that device manufacturers are already considering this in the design of new hardware, but still need to know more before finalizing software. This is perhaps the best announcement so far from this FCC. The benefit to the country from WiFi is gigantic and this will vastly strengthen the advantages of WiFi.

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Regulation - What is it Good For?

The FCC Process

I recently wrote a blog that discussed the possibility that the FCC would change the definition of the speed that constitutes broadband. I got a number of inquiries from readers asking how this could happen outside of the scope of the formal rulemaking process. Specifically, I had reported on the rumor that the FCC was likely to make this decision by February 3, which is not one of the dates when the FCC formally holds open meetings and votes on changes to FCC rules. Today I’m going to try to shed some light on how the FCC makes decisions, which will hopefully clarify the issue.

The FCC has several paths to make decisions. The one that the industry is most familiar with is the rulemaking process. The basic process for rulemaking for all administrative government agencies was created with the Administrative Procedure Act in 1946. This Act defined a process of changing federal rules that mandates getting feedback from the public.

The FCC might consider changing rules for several reasons. Some rule changes are mandated by Congress, with one of the more recent such FCC actions being in response to changes in consumer privacy rules. The FCC can also start a rulemaking in response to a petition asking for a clarification of the rules. In the past such petitions often came from the large carriers or else from state regulators. Finally, the FCC can simply identify an industry problem on their own and begin the rulemaking process to seek possible solutions.

The FCC then has several tools available to facilitate the rulemaking process:

  • One tool available to the FCC is the NOI (Notice of Inquiry). This can be done when the FCC is trying to understand an issue and the possible solutions.
  • But the NOI process is not mandatory and the agency can move directly to an NPRM (Notice of Proposed Rulemaking). This is a formal document that proposes specific rule changes. There is a defined minimum timeline for this process that includes time for the public to comment and for a second round of reply comments, if needed. During this process the FCC might allow ex parte meetings from interested parties, hold public meetings to solicit feedback or engage with industry experts to get feedback on their proposals.
  • Finally, some dockets proceed to an FNPRM (Further Notice of Proposed Rulemaking). This tool is used when the comments on an NPRM cause the FCC to consider a different solution than what they originally proposed. This also then goes through the public comment process.

But not everything done at the FCC goes through the rulemaking process. For example, one of the mandated functions of the FCC is acting to adjudicate industry disputes. Industry parties that disagree on the interpretation of existing FCC rules can ask the agency to clarify – and in the case the agency takes on a nearly judicial role in looking at the facts of a specific case.

Finally, the FCC has a major administrative function. The agency has to make numerous policy decisions in order to meet its mandates from Congress. A simple way to think about this is that the rulemaking process creates formal rule changes. But then the agency must develop the processes and policies to make the new rules function. The FCC spends a lot of time on these administrative functions. For example, holding auctions for spectrum is an administrative function. Deciding how to fund and administer the Universal Service Fund is an administrative function. Approving new telecom and wireless devices is an administrative function.

The decision in the past to define the speed of broadband was an administrative decision. The agency has wide discretion to arbitrarily define administrative rules, but they often ask for public feedback.

The speed of broadband has been discussed at the FCC in several different contexts. First, the FCC has administered several grant programs and they decided that it was in the public good to set minimum broadband speeds for various grant programs. For example, the CAF II program requires the large telcos to deploy technology that delivers at least 10/1 Mbps. But there have been other speed requirements for other grant programs and the ‘experimental grants’ of a few years ago looked to fund technologies that delivered at least 100 Mbps download.

But the primary reason that the FCC decided they needed to define broadband using speeds was due to a mandate from Congress for the FCC is to report once per year on the state of broadband in the country. The Congress wants to know how many people have, or do not have broadband. Past FCCs decided that a definition of broadband was needed in order to create a meaningful report to Congress. They initially set the definition of broadband at 10/1 Mbps and later raised it to 25/3 Mbps. And they purposefully have excluded cellular broadband as not being broadband.

In anticipation of each annual broadband report the FCC sometimes asks questions of the public. They did so last year in an NOI where they asked if the 25/3 Mbps definition of broadband is too high. And they asked if cellular broadband ought to now be counted as broadband. This NOI is issued only for factfinding and to solicit public opinion on the topic. But the speed of broadband is an administrative decision of the agency, meaning that there are not formal rules associated with setting or changing the definition of broadband. The agency is free to make changes at any time to these kinds of administrative definitions. In the past the definition of broadband speeds was included with the annual broadband reports issued to Congress. And the anticipation is that the agency will use this same mechanism this year. There is no formal docket open on the topic and thus no formal and public vote is required. The FCC might or might not change the definition of broadband, but as my blog conjectured, the consensus of industry experts is that they are likely to do so. But we’ll have to wait for the annual broadband report to see if they actually lower the definition of broadband speeds or add cellular data to the definition.

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Regulation - What is it Good For?

FCC Looks at Consumer Data Security

The FCC will be voting on March 31 to release a Notice of Proposed Rulemaking (NPRM) concerning customer rights concerning their data on the Internet. More specifically, the NPRM is looking at the relationship between a customer and their ISP. It’s been assumed FCC Chairman Tom Wheeler already has the votes to get this passed.

The premise of the NPRM is that an ISP knows more about what a customer does than anybody else. They know what web sites you connect to and for how long, and even if you encrypt everything they know a lot about you. Most people don’t realize that an ISP has total knowledge of everything a customer does that is not encrypted. If they care to do so an ISP can record every keystroke made online.

And so the NPRM will be asking what rights customers should have as far as allowing their ISP to use or monetize the knowledge they gain about customers. The proposed rules are going to apply the same sorts of privacy rights to broadband that have been in place for telephone service. The privacy rules would not apply to social media sites, browsers or search engines, just to ISPs. The FCC’s reasoning is that customers voluntarily give their data to these edge series but they have not done so freely to their ISP.

The NPRM starts with the premise that consumers ought to have control over how their data is used by their ISP. Telephone customers have had similar rights for years. Here are the primary areas that will be covered by the NPRM:

Transparency. The FCC wants ISPs to inform people about the information they collect about them. They want ISPs to further tell customers how they use this data and if and how the data might be sold to others. And the FCC wants all of this written in plain English (good luck with that!)

Security. The FCC believes that ISPs have the responsibility to protect customer data. The NPRM wants to require ISPs to take reasonable steps to protect customer data.

  • This would mean new rules for ISPs. They would have to institute training practices for employees, adopt strong customer authorization practices, identify to the FCC the senior manager(s) responsible for data security, and take responsibility of customer data when it’s shared with a third party.
  • There would also be new rules about data breaches. Customers would have to be notified of data breaches within 10 days of discovery. The ISP would need to notify the FCC within 7 days of any breach. ISPs would have to notify the FBI and the US Secret Service of any breach of more than 5,000 customers.

Choice. The NPRM suggest that customers be given a choice to say what kind of data their ISP may use and under what conditions it can be shared with others. The FCC wants to categorize customer data into three categories:

  • First is the data that an ISP must have in order to serve customers. This would be things like name, address and other data needed to bill a customer. And because the product is broadband the FCC believes that an ISP has the inherent right to do things like measure your total data usage and other related network information.
  • Second, the FCC thinks that an ISP ought to be able to use a customer’s data to market other telecom products to them. But, like with telephone service, the FCC thinks customers should have the right to opt-out of ISP marketing activity.
  • Third, the FCC is then suggesting that customers would need to opt-in to give an ISP the right to use their data for any other purposes.

The FCC wants these to be rules about customer permission and protection of data and they are not prohibiting ISPs from gathering and using data as long as the customer approve of it. As is usual with this kind of NPRM we can expect a lot of comments both for and against the proposal. What I find most unusual about this NPRM is that it largely assumes that the FCC is going to prevail in its order to regulate broadband under Title II rules. If that gets order gets overturned then protection of customer data would probably revert back to the FTC.

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Regulation - What is it Good For?

Proposed Changes in Telecom Law

Capital B (Photo credit: Wikipedia)

Two bills just made it out of the Communications and Technology subcommittee of the House of Representatives. There are so few bills making it to the floor these days that it’s interesting to see two telecom bills being moved forward. Especially since both are on a bipartisan basis.

The first bill is a revised version of the Federal Communications Commission Process Reform Act, H.R. 3675, which replaces an earlier version of the proposed law. This bill would make a number of changes at the FCC. The bill was heralded yesterday as bringing additional transparency to the workings of the FCC.

First it would change the rulemaking process. It would require all notices of proposed rulemaking (NPRMs) to allow 60 days for public comments before issuance. The FCC currently gives the public an opportunity to comment on the content and structure of an NPRM about one third of the time. Having followed FCC NPRM’s for years, this move seems aimed at slowing down the process. The FCC has generally asked for public input for major rule changes before issuing an NPRM. But the FCC also issues a number of NPRMs that are more procedural or which make minor amendments to rules and this new proposed process would slow down those more minor rule changes. Of course, it’s hard to argue about giving the public more input, but in this case the change gives them more input to the document that is asking for public input rather than to the actual factual proceeding. The public has always had the opportunity to respond to any NPRM once issued, but now they will get a chance to first comment on the format and questions asked by any NPRM before it is issued.

The bill also would require that there would have to be a broader review of any rule change that is expected to have an economic impact of $100M or more. This review would come from other government agencies who want to chime in on the change. This also will add time to the process of allowing the FCC to make major changes and my reading of this bill in general is that it sounds good in intent, but my gut tells me that this is a backdoor attempt to slow then FCC down from making any major changes. There are those in Congress who have been advocating removing most of the FCC’s responsibilities, and if you can’t stop the FCC, then I guess it’s okay to just slow them down.

The subcommittee also approved a bill H.R. 3674, the Federal Spectrum Incentive Act. This bill is aimed at freeing up more cellular frequency in the lower spectrum ranges. It provides both incentives and processes to move government and other users off of certain frequencies in order to provide more bandwidth for cellular telephone usage.

The main provision of the law is that it would allow government agencies that are currently using spectrum in certain ranges the ability to take a cut of any auction proceeds coming from the sale of that spectrum for commercial use.

There was a similar bill passed in 2012 which gave incentives for TV stations willing to give up their spectrum using a tool which is called a reverse auction. This bill would give about 1% of the proceeds of an auction sale to any agency that gave up the spectrum. The bill handles the mechanics by creating a new Federal Spectrum Incentive Fund which would hold auction proceeds until qualifying agencies could qualify for the funds.

These incentive funds are a good idea in that they free up frequency that is badly needed by cellular providers. Most of the frequencies involved are below 1 GHz, and these are the frequencies that can be used to carry a cellular signal for a long distance. These spectrums are necessary if the country wants to use cellular frequencies to bring more data to rural areas. In urban areas the carriers can use higher frequencies because the towers in those areas are already fairly close together. But it’s only economical to provide cell coverage in rural areas if the spectrum can carry for long distances from each transmitter.

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Current News Regulation - What is it Good For?

Faster Internet for Schools and Libraries

On July 23 the FCC released a Notice of Proposed Rulemaking in WC Docket No 13-184 that asks questions about modernizing the E-rate program for schools and libraries. The E-rate program has been around for a few decades and has been used to bring broadband to schools and libraries.

But last month President Obama announced a ConnectED initiative that has the stated goal of bringing a minimum of 100 Mbps and a goal of 1 Gbps to 99% of students within five years. This NPRM is in response to that initiative.

A 2010 FCC survey showed that only 10% of schools had speeds of 100 Mbps or greater. 48% of schools had speeds less 10 Mbps. 39% of schools reported cost as the barrier to better speeds while 27% cited the cost of installation as a barrier. And the situation is worse in our libraries. In a 2011 survey by the American Library Association only 9% of libraries have speeds of 100 Mbps or faster while 25% still have speeds of 1.5 Mbps or less.

There is clearly a need for revised E-rate funding. In the most recent year there were requests for funding from schools of over $4.9 B from a fund that is at an annual cap of $2.25 B. The E-rate program is funded today as part of the Universal Service Fund that gets fund by a surcharge put on a wide variety of telecommunications end-user bills.

The FCC has laid forth new goals for the E-rate program and also suggested a number of specific changes. The new goals include 1) That schools and libraries have affordable access to broadband in order to meet the goals of ConnectED; 2) that the effectiveness of the E-rate funding is maximized, and 3) that the administration of the program is streamlined.

The FCC seeks comments on the specific speed requirements needed for schools and libraries. They offer the target established by the State Education Technology Directors Association (SETDA) which suggests that K-12 schools should have at least 100 Mbps per 1,000 students by 2015 and 1 Gbps for every 1,000 students by 2018. For libraries they offer the State Library of Kansas recommendation that all libraries should have 1 Gbps connectivity by 2020.

One of the issues that the NPRM looks at is how to get the bandwidth around the school once it’s delivered to the side of a school. This is a significant issue because today’s wiring technologies and wireless technologies have a steep drop-off in data speeds over even short distances. So the NPRM looks for comments on how to best get the bandwidth to classrooms.  The State E-Rate Coordinators Association (SECA) has suggested that this issue is of high enough importance that it ought to be at the top of the priority list for E-rate funding.

The NPRM asks questions about increasing the efficiencies of buying broadband. This includes consortium purchasing and other bulk buying opportunities. The larger school districts are able to negotiate better rates today than small school districts due to the fact that they serve a significant number of schools. There must be ways for neighboring districts to band together for efficiency (although local politics is often a barrier to this process).

The NPRM also asks what the funding should be used for. It suggests that funding be transitioned to support only broadband. The funding is currently used for a number of other purposes which were allowable under the old rules.  For example, in the most recent funding year there were requests for $260 M to subsidize telephone lines.

Finally, the NPRM looks at who is eligible for the E-rate program. Today the program pays for some portion of eligible costs based upon the percentage of student enrollment that is eligible for a free or reduced price lunch in a given school. The school gets a discount based upon that factor and must then match between 10% and 80% of the cost. The NPRM looks at alternate eligibility requirements including (1) revising the discount matrix to increase certain applicants’ matching requirements; (2) providing support on a district-wide basis; (3) revising the approach to supporting rural schools and libraries; (4) incorporating a per-student or per-building cap on funding into the discount matrix; (5) providing more equitable access to priority two funding; and (6) allocating funds to all eligible schools and libraries up front.

Comments in the NPRM are due to the FCC by September 16, 2013. CCG Consulting will probably be making some comments in the Docket, so if you have anything you want to say let me know and it can be included in our filing.

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