Cable and telecom industry groups sued Vermont over its net neutrality law and executive order that restricted government contracts to companies that follow open-internet principles. Gov. Phil Scott (R) has vowed to fight the suit. It was the third state to enact a net neutrality law when in May the state put into statute Scott’s February executive order (see 1805240043). USTelecom, CTIA, NCTA, the American Cable Association and New England Cable and Telecommunications Association complained Thursday in the U.S. District Court in Burlington. Restricting state contracts are pre-empted under the U.S. Constitution’s Supremacy Clause by the FCC December order and the Communications Act’s ban on imposing common carrier obligations on mobile and information-service providers, the groups said. The Vermont actions "regulate outside the borders of the State of Vermont and burden interstate commerce in violation of the" Constitution's dormant Commerce Clause, they said. “Internet traffic flows freely between states, making it difficult or impossible for a provider to distinguish traffic moving within Vermont from traffic that crosses state borders.” States can’t “use their spending and procurement authority to bypass federal laws they do not like," but Congress should pass a national law, said a statement by the national associations. NECTA supports "federal legislation that would enshrine these principles permanently across the entire U.S.," said CEO Paul Cianelli. While Scott understands "consistent regulation is important to ensuring a vibrant and thriving telecom and cable sector, our obligation as a state government is to our citizens, who I strongly believe have a right to free and open access to information on the internet,” the governor said. “In the absence of a national standard to protect that right, states must act.” The national groups earlier sued California for a comprehensive net neutrality bill (see 1810030036). Other states with net neutrality laws (Oregon, Washington state) or executive orders (Montana, New York, New Jersey, Hawaii and Rhode Island) have yet to be sued. Washington has comprehensive rules, while the others restricted procurement.
Notable CROSS rulings
Chairman Joe Simons defended FTC Privacy Shield enforcement efforts, as officials from the U.S. and the EU discuss extending PS. The FTC is committed to maintaining “a robust mechanism for protecting privacy and enabling transatlantic data flows,” he said in Brussels Thursday. Since 2017, the FTC brought eight PS enforcement actions. He cited 39 actions under the U.S.-EU safe harbor, which predated the Privacy Shield, and four actions linked to the Asia-Pacific Economic Cooperative’s Cross-Border Privacy Rules system. The Privacy Shield actions concerned entities falsely claiming program verification, failure to complete the verification process and failure to uphold program standards after leaving. The chairman cited the steady stream of press reports about privacy and data breaches, saying the agency is investigating Facebook and Equifax.
The Computer & Communications Industry Association and Information Technology Industry Council supported a trilateral trade deal the U.S., Canada and Mexico reached this weekend. It's “a significant step toward creating a foundation for North America’s economic prosperity for years to come,” said ITI CEO Dean Garfield. “We’re encouraged this plan will build upon the prior economic success of NAFTA and adapt it to the fundamentally digital economy in which we live through new rules on digital trade, intellectual property, and trade in goods.” The tech industry likes the "digital trade chapter that removes barriers to cross-border data flows," said CCIA CEO Ed Black. The group also likes "protection for intermediaries to ensure U.S. internet services can be exported around the world," he said.
The White House's 5G summit Friday focused on emphasizing cross-government coordination on policies aimed at ensuring infrastructure deployment is driven by market forces and reducing regulatory burdens, as expected (see 1809210052). Closed breakout sessions with federal and industry officials didn't presage looming White House action, instead focusing on existing efforts at the FCC, NTIA and other agencies, attendees told us.
Carriers are watching wildfires in northern California and Colorado but didn’t report major network problems Friday. Some wireless operators said they are providing free services or would waive fees. The California Public Utilities Commission said it plans to vote Thursday on making certain consumer protections permanent in case of future wildfires.
The FCC attaching deadlines to the Sinclair/Tribune hearing designation order to help speed the proceeding was a relative novelty for the agency, but other federal agencies frequently use deadlines for administrative law proceedings, administrative law judges and other experts told us. Brooke Ericson, chief of staff for Commissioner Mike O'Rielly, who spearheaded the HDO deadlines language, said O'Reilly has about 50 other agency process changes he hopes to pitch to Chairman Ajit Pai. She said it includes others dealing with the ALJ process like eliminating such hearings.
From lowered barriers to cross-border data flows to opposition of extraterritorial application of other nations' privacy laws, NTIA saw a slew of recommendations in response to its notice of inquiry on what should be its international internet priorities. Comments due Tuesday were posted Friday. Many saw no need to unwind the moving of IANA functions from NTIA to global stakeholders. The unwinding would signal that governments alone should govern the internet -- "a dangerous proposition that incentivizes those who fear the internet's transformative power" and could lead to countries building closed networks operating independently of ICANN, Google said.
Commissioners renewed licenses of Fox Television Stations' WWOR-TV Secaucus, New Jersey, and WNYW New York over a concurrence from Jessica Rosenworcel, despite opposition from some groups to those stations. The licenses now expire June 1, 2023, FCC records show. An order published in Friday's Daily Digest denied applications by Free Press, Rainbow/PUSH Coalition, Voice for New Jersey and United Church of Christ for review of a Media Bureau 2014 order renewing WWOR's license (see 1408110046) and petitions by the last two of those groups to deny renewals for both stations (see 1411040061) over concerns of a Fox inaccurate report to the agency and WWOR not serving the needs of its audience, specific obligations the station uniquely faces. Thursday, the agency released letters dated June 28 Chairman Ajit Pai wrote New Jersey's two Democratic senators saying he circulated a draft to resolve WWOR's then-pending renewal application. "The Bureau acted reasonably in finding that inaccurate statements made by Fox in the context of ex parte communications did not warrant further review or nonrenewal of Fox’s license," said the new order. "Because of our action in the 2014 Quadrennial Recon repealing the NBCO [Newspaper/Broadcast Cross-Ownership] rule, Fox’s joint ownership of these properties is now permissible under our current [cross-ownership] rules and the challenge to the Bureau’s grant of a temporary waiver is therefore moot." The bureau had given Fox temporary waiver to own both stations and the New York Post. Friday, the company declined to comment, and some of the challengers didn't comment. The order didn't contain a statement from Rosenworcel, whose office didn't comment further; an agency official noted the commissioner hadn't issued such a response. The offices of Cory Booker and Robert Menendez, the senators who had written Pai, also didn't comment Friday. Booker and Menendez wrote Pai in January asking him to consider WWOR’s “persistent refusal” to “abide by its legal obligations to provide the people of Northern New Jersey with local news and information.”
In response to the EU's "burdensome" general data protection regulation and California's precedent-setting privacy law, the U.S. Chamber of Commerce is developing federal legislation to avoid “a nightmare” patchwork of rules, wrote Chamber CEO Thomas Donohue Monday. “In today’s interconnected world, data know no boundaries and require a federal framework,” said Donohue. Federal policy should “encourage cross-border data flows over data localization, which does little to protect privacy while making data more vulnerable and discouraging foreign investment,” he argued. Policymakers also should favor “long-term growth over short-term gains that may be achieved by limiting data flows and other practices that undermine competition,” he said.
Supreme Court prospect Brett Kavanaugh has made a mark in communications law in 12 years as a U.S. Court of Appeals for the D.C. Circuit judge. In a dissent from a ruling affirming the FCC's 2015 net neutrality order, he argued the regulation lacked clear congressional authorization and violated the First Amendment. The agency shouldn't get Chevron deference on "major" rules and broadband ISP speech rights can't be restricted absent a market power showing, he wrote. He has also found programming rules violate cable operator speech rights, upheld partial telco forbearance relief decisions and ruled on many other FCC orders, giving him far more telecom and media legal experience than any other contender to replace retiring Justice Anthony Kennedy (see 1806280018).