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D.C. Briefs

5/14/2012 12:01 AM Eastern

Senate Confirms FCC Nominees

The Senate last week confirmed two new FCC nominees, Democrat Jessica
Rosenworcel
and Republican Ajit Pai, to fill the vacant seats on a fivemember
commission that has only had three members since the beginning of
the year.

Rosenworcel and Pai had breezed
through their Senate Commerce Committee
confirmation hearing last fall
with bipartisan support, but had been in
waiting after a hold on the nominations
on an unrelated issue finally resolved
two weeks ago. The vote was something
of an anticlimax after all the drama surrounding
that hold. The vote came with
no fanfare and without their names even
being mentioned. Instead, it was nominees
“512 and 513” approved without
objection.

At press time last week, the pair had
yet to be sworn in. According to sources,
it was an issue with the White House
and the president signing the official
papers.

Once that happened, the swearing
in would proceed swiftly; it was expected either by the end of last week or
sometime this week.

Pai, who has been a lawyer in the communications practice at law firm
Jenner & Block, has said he won’t have to recuse himself since he told
Congress he has not represented any
clients before the FCC and has been
“screened” from FCC work done by others
there.

As a refresher, here are some areas
of policy agreement between the two
incoming commissioners as outlined to
the Senate Commerce Committee.

—Both agreed with Sen. Jim DeMint
(R-S.C.) that after 20 years, the Cable
Act needed reviewing; Pai also pointed
to the retrans regime as deserving some
more attention.

—Both said they thought more spectrum
needed to be freed up for wireless
broadband. Rosenworcel added that it
would be foolish to concentrate only on
incentive auctions, and that network
efficiency and more spectrum-efficient
technology should be part of that framework. She said if she were confirmed,
she would push for a more comprehensive inventory of who was using spectrum,
and how — something NAB was pushing last week. Pai agreed and said
it would be best if the FCC had that inventory beforehand.

—Both support the e-rate program, which subsidizes communications to
schools and libraries;

—They diverged slightly on the issue of how merger-specific the FCC’s deal
conditions should be. Roseworcel said they should at least have a “rational
relationship” to merger-specific harms; Pai said he would want any conditions
to be strictly merger-specific.

No Consensus on Privacy

Sen. Jay Rockefeller (D-W.Va.) said last week he does not think there is consensus
yet on baseline privacy legislation, but that won’t stop him from trying
to get a bill passed in this Congress.

By most accounts that is a tall order in an election year with that admitted
lack of consensus.

At a Senate Commerce Committee hearing on Federal Trade Commission
and Administration online privacy proposals — Rockefeller said industry selfregulators
would get their say in an upcoming hearing — the chairman said
“strong, consumer-focused” legislation was needed this year.

While he gave a shout out to industry for self-regulatory efforts to date —
those have included voluntary do-not track-mechanisms and codes of online
conduct — self-regulation was not enough.

He said, from phone companies to oil companies, consumer rights would
wind up losing out to industry needs. “In the hyper-competitive online marketplace,”
he said, “the need to monetize consumers’ data and profits will win
out over privacy.”

Sen. John Kerry (D-Mass.) said he was ready to negotiate and compromise
on legislation, and that it was a conversation that needed to
happen.

Making the administration’s pitch for legislation was Cameron Kerry (John
Kerry’s brother), former cable attorney and currently general counsel at Commerce.
Cameron Kerry, who helped draft the administration’s privacy bill of
rights proposal, said the administration was currently translating its bill of
rights into legislative language and was ready to work with Congress to pass
a bill.

That bill would codify basic privacy principles, give the FTC power to enforce
them, and formally enshrine the National Telecommunications & Information
Administration as facilitator of sector-specific voluntary stakeholder
guidelines.

One of those not in the consensus on legislation was ranking Commerce
Committee member Sen. Patrick
Toomey (R-Pa.). He said
he had not heard persuasive
arguments on why the FTC
needs more authority, and he
thought there should be some
cost-benefit analysis of the
impact of privacy legislation
before they went down that
road.

He called it premature to
begin discussing specific legislative
fixes or increased FTC
authority when the problem
had not been identified.

FTC chairman Jon Leibowitz,
one of the witnesses at the
hearing, said legislation would
help fill in gaps in the law.

For instance, the FTC can
go after deceptive privacy policies,
but cannot mandate that
companies have them in the first place.

While Leibowitz gave the Digital Advertising Alliance props for their do-nottrack,
self-regulatory efforts, he said generally, self-regulation has been uneven
and that legislation might help even it out, while giving consumers more
faith in the online space, something he has long pointed out is to the benefit
of industry and government.

Responding to Toomey’s suggestion the online privacy problem was unclear,
both Sen. Kerry and Cameron Kerry suggested the problem was clear,
and two-fold.

People don’t have the ability to know just how their information is being collected
and shared — even by good citizens in the space — and will likely not
know without help from the government, and no matter how many good citizens
there are, there will be bad ones that the government needs to protect
consumers from through legislation.

BTOP Check-up

The House Subcommittee on Communications & Technology has scheduled a
hearing May 16 on “broadband loans and grants.”

Republican House leaders have expressed concerns about how the broadband
loans and grants funded by the American Recovery and Reinvestment
Act are being spent, including to what degree they are being used to subsidize
competition to existing service, and how the spending is being monitored
by the government for waste, fraud and abuse. Those are the same issues
that have concerned cable operators facing potential overbuilding with government
dollars.

The National Telecommunications and Information Administration oversees
the BTOP broadband grant program, while the Agriculture Department’s Rural
Utilities Service Handles broadband loans funded by the stimulus money.

NTIA grantees say they have:

1. Deployed or upgraded more than 45,000 miles of broadband infrastructure;

2. Installed more than 29,000 workstations in public computer centers;

3. Instituted programs that have led to more than 260,000 new broadband
subscribers, including some businesses; and

4. Approximately 300 interconnection agreements in the works.

NTIA will also argue that its BTOP projects are “generally” on track, creating
jobs and spurring economic growth, and that it is “vigorously” overseeing
them to make sure they complete them on schedule and budget.

September