Local governments have a stake in the FCC’s net neutrality proceedings (CD May 18 p1), but cities and counties are still studying the NPRM prior to possibly taking up the issue at the U.S. Conference of Mayors annual meeting in Dallas, June 20-23, said municipal telecom lawyer Gerard Lederer of the Best Best law firm, which represents local governments around the nation. Local governments have an interest in making sure the use of their public rights of way results in a public benefit not just shareholder value, Lederer said. There may be concerns about governments being asked to pay extra fees for a fast lane for such government functions as online bill pay and meter reading, he said. Local governments are concerned about small businesses that could be affected. A spokesman for the National Conference of State Legislatures said it is still formulating a response. The National Governors Association had no comment.

Net neutrality supporters want to overturn a “two-decade consensus” of light regulatory touch, John Sununu, co-chair of Broadband for America and former Republican senator from New Hampshire, said in a media call Friday. Broadband firms have invested more than a trillion dollars on infrastructure, but make those investments only when they believe they can get a return, Sununu said. Under Title II regulation -- which the net neutrality NPRM asks about (CD May 16 p1) -- government would have the right to regulate rates, investment and return on investment, Sununu said. “There’s no question that the private sector would be both more reluctant to invest in that kind of a regulatory environment, and approval for investments would take longer.” The push for net neutrality rules might be more understandable if there were a specific market failure the FCC is trying to address -- but there isn’t one, Sununu said: The Internet has outpaced just about every other industry in the country, with speeds increasing 25 percent in the past year, and its level of innovation has never been stronger. “We've got a market that’s working today.” Harold Ford Jr., co-chair of Broadband for America and former Democratic representative from Tennessee, criticized the idea of slow lanes and fast lanes; there are “fast lanes” and “soon to be ultra-fast lanes” for those that need it, Ford said. Some activities require faster speeds, Ford said, citing access to emergency services and “amazing advances in telemedicine” such as “remote surgery.” As for Title II, a light regulatory approach is “proven” to produce innovation, he said, especially compared with Europe’s utility-style regulation of the Internet that has resulted in slower innovation. Broadband for America attorney Bryan Tramont, managing partner of Wilkinson Barker, said that no one knows what Title II would look like as applied to the Internet. “There is a cascade of regulations that would apply,” he said. “How would forbearance work?” Could a future commission come in and “unforbear"? All that uncertainty would have a tremendous impact on business, Tramont said.

Cisco is “deeply troubled” by proposals to impose “old-fashioned” Title II “telephone regulations” to broadband Internet access service, CEO John Chambers told FCC Chairman Tom Wheeler in a phone call Tuesday, an ex parte filing said. “By keeping the heavy hand of Title II regulation out of the Internet, the FCC has encouraged huge investment in Internet infrastructure,” Cisco said. “If Title II regulation is brought to broadband Internet access services, investment in new infrastructure will be severely hamstrung. New, innovative services may not be brought to market because entrepreneurs fear telecommunications regulation. The competitiveness of our nation will be threatened because, in a global world, investment and jobs will move to countries that encourage innovation.” Chambers said he’s passionate about the issue because it’s “crucial” to the future of the Internet. “Will we have rules that only seek to protect innovation on the edge of the network by imposing onerous regulation on the core of the network? Or will we take a balanced approach that encourages innovation everywhere in the Internet ecosystem while protecting consumers and competition?” Interconnection rules must be part of any net neutrality rewrite, Level 3 told an aide to Wheeler Monday, an ex parte filing said (http://bit.ly/1sORjGh). The FCC must not “simply reinstate its previous rules” on net neutrality, Level 3 said. Wheeler says he won’t let some companies force Internet users into a slow lane, but that’s “precisely what is happening today,” Level 3 said: “Some of the biggest consumer broadband ISPs have allowed the interconnections between their networks and backbone providers like Level 3 to congest, causing packets to be dropped and harming their own users’ Internet experience.” To ensure its rules actually achieve their goal, “the Commission must also prohibit ISPs from imposing access tolls for the privilege of reaching the ISPs’ end users,” Level 3 said.

Correction: An NTIA blog post with case studies on the impact of Broadband Technology Opportunities Program grants is at http://1.usa.gov/1suwf7V (CD May 12 p14).

The FCC’s retrospective regulatory review process has led to the death of scores of obsolete rules, a study found. The FCC and FTC were among agencies the GAO reviewed in a report released Monday on the use of retrospective regulatory analyses. Independent agencies such as the FCC and FTC didn’t have to form retrospective review plans, but those two did. “Both agencies said they have well-established practices to regularly review regulations and report outcomes,” GAO said in the 47-page report (http://1.usa.gov/1jzsvQ9). “FTC has a long-standing practice of maintaining a schedule, published annually, to ensure that each rule is reviewed approximately every 10 years. The commission modifies the schedule to accelerate the review of rules when it observes economic or marketplace changes that necessitate a rule review.” The FCC did “not develop an updated plan partly due to transitions among the agency’s top leadership,” referring to the vacant chairman slot for many months last year, GAO also found. The two agencies made many tweaks to regulations to make them more efficient or in reflection of administrative evolution, GAO said. “Of the 32 completed FCC analyses in our scope, 30 resulted in administrative changes, in particular cumulatively eliminating about 190 regulations that were obsolete” and in one example “eliminated outdated and unnecessary reporting requirements related to international telecommunications traffic,” said the report. For the FCC, it was important to centralize retrospective analysis through the general counsel’s office, with active communication to relevant bureaus and offices, FCC officials told GAO. “To help develop FCC’s review plan, agency officials said that they used existing review processes, such as the statutorily required biennial review of regulations related to telecommunications regulations,” GAO said. GAO, in its overall recommendations encompassing far more agencies, recommended the Office of Management and Budget coordinate with agencies on doing a better job in reporting on how they make tweaks as part of the retrospective reviews.

Several lawmakers and organizations have already signed the letter the Congressional Progressive Caucus plans to send the FCC later this week (CD May 12 p7) pressing for stronger net neutrality rules (see separate report above in this issue), relying on Communications Act Title II authority rather than Section 706. According to a Dear Colleague letter sent Monday by caucus co-chairs Raul Grijalva, D-Ariz., and Keith Ellison, D-Minn., the American Civil Liberties Union, Credo Action, Demand Progress, Democracy for America, MoveOn.org and the National Hispanic Media Coalition all endorse the letter. Signatories include House Judiciary Committee ranking member John Conyers, D-Mich., along with Reps. David Cicilline, D-R.I.; Mike Capuano, D-Mass.; Peter DeFazio, D-Ore.; Donna Edwards, D-Md.; Alan Grayson, D-Fla.; Rush Holt, D-N.J.; Mike Honda, D-Calif.; Jared Huffman, D-Calif.; Marcy Kaptur, D-Ohio; Barbara Lee, D-Calif.; John Lewis, D-Ga.; Alan Lowenthal, D-Calif.; Jim McGovern, D-Mass.; Jerrold Nadler, D-N.Y.; Mark Pocan, D-Wis.; Lucille Roybal-Allard, D-Calif.; Mark Takano, D-Calif.; and Del. Eleanor Holmes Norton, D-D.C. “Over one million people have already gone on the record in support of reclassification,” the letter to lawmakers said. “We urge you to join us in pressing the FCC to consider this support for strong, enforceable open Internet rules as it moves forward with the rulemaking process.” The deadline to sign is Tuesday at close of business, it said. The letter to the FCC has not been officially released or sent.

FCC commissioners should continue to “keep our eyes open” for evidence of broadband provider actions that harm consumers, Commissioner Mike O'Rielly said in an interview for C-SPAN’s The Communicators, adding that “I don’t want to regulate in the future what may happen.” The interview is set to appear online Friday afternoon and on C-SPAN at 6:30 p.m. EDT Saturday. Commissioners should likewise “keep our eyes open” for any emergence of an Internet fast lane, but “it’s early on in the equation,” O'Rielly said. He said his own conversations with broadband providers indicate that they don’t intend to fundamentally change their policies in the wake of the U.S. Court of Appeals for the D.C. Circuit’s Jan. 14 ruling that largely struck down the FCC’s 2010 net neutrality rules. The FCC should absolutely follow up on “legitimate harms,” but “right now we're kind of regulating a guessing game,” O'Rielly said. FCC Chairman Tom Wheeler plans to justify the net neutrality NPRM using Section 706, which O'Rielly has said could lead to unintended consequences, particularly opening the door to possible future FCC action on cybersecurity and edge providers. The FCC’s authority on cybersecurity is “very limited” under the Communications Act, but a broader interpretation of Section 706 could lead the commission to expand its regulatory authority on the issue, he said.

FCC Commissioner Jessica Rosenworcel has “real concerns” about Chairman Tom Wheeler’s proposal on net neutrality, she told the chief officers of state library agencies Wednesday, according to prepared remarks (http://bit.ly/RslUvG). Rosenworcel called for a delay of at least one month to give the agency time to consider how to proceed, and a broad Internet-based public outreach effort. Wheeler has acknowledged that all options are on the table, but “I have real concerns about process” given that the rules could lead to the creation of an “Internet fast lane,” Rosenworcel said. Wheeler’s proposal “has unleashed a torrent of public response” with tens of thousands of emails, hundreds of calls, and Internet-wide commentary that “we need to respect,” she said. “While I recognize the urgency to move ahead and develop rules with dispatch, I think the greater urgency comes in giving the American public opportunity to speak right now, before we head down this road.” The sunshine period, set to kick in Thursday, will mean the agency no longer accepts public comment, she said. “It’s a mistake to cut off public debate right now,” Rosenworcel said. “At a minimum, we should delay the onset of our Sunshine rules.” Because of a “challenging set of court decisions that have led us to this point,” the agency’s legal staff “should be holding forth, answering questions, and explaining what is before us with regular sessions -- not in Washington, but over the Internet, through social media, and broadly accessible to the public,” Rosenworcel said. Commissioner Mignon Clyburn posted a blog entry Wednesday saying her preferred net neutrality rules would ban pay-for-priority arrangements. “During the past few weeks, tens of thousands of consumers, companies, entrepreneurs, investors, schools, educators, healthcare providers and others have reached out to ask me to keep the Internet free and open,” Clyburn said (http://fcc.us/1jfDxd3). “While it is my normal practice not to comment in advance on items which are on circulation out of my deep respect for the integrity of our regulatory and administrative process, given the high level of attention and the outpouring of expression on the notice of proposed rulemaking on Open Internet, I felt it was important to highlight my previously stated views,” Clyburn said. When she voted to approve the 2010 net neutrality order, she made clear she would have applied the rules to mobile services, and she “would have prohibited pay for priority arrangements altogether,” Clyburn said. “There is no doubt that preserving and maintaining a free and open Internet is fundamental to the core values of our democratic society, and I have an unwavering commitment to its independence."

Level 3 made public details about its peering arrangements. The transit provider has tens of thousands of customers but only 51 peers interconnected in 45 cities, Mark Taylor, vice president-content and media, said in a Monday blog post (http://bit.ly/Rp4os6). Of those, he said, 48 are “settlement free” -- no money changes hands. “Our policy is to refuse to pay arbitrary charges to add interconnection capacity,” he said. As for shared costs for the networks to interconnect, each party typically pays to augment its own network to allow more traffic exchange, he said. Most peers aren’t anywhere near capacity, but six peers have congestion on “almost all of the interconnect ports between us,” Taylor said. That congestion is “permanent,” he said, “where our peer refuses to augment capacity.” They're deliberately harming the service they deliver to their paying customers, he said. They're not allowing us” to fulfill “the requests their customers make for content,” he said. Five of those congested peers are in the U.S., and all of them are large broadband consumer networks with dominant or exclusive market share in their local markets, he said: “Shouldn’t a broadband consumer network with near monopoly control over their customers be expected, if not obligated, to deliver a better experience than this?"

Top Senate Democrats weren’t ready to say when they would take on draft legislation for Satellite Television Extension and Localism Act reauthorization, they told us Tuesday at the Capitol. The House Commerce Committee scheduled a markup of its STELA draft, the only legislative text introduced so far, for Thursday. (See separate report below in this issue.) The Commerce and Judiciary committees in both chambers have jurisdiction over STELA, which will expire at the end of the year unless Congress reauthorizes it. “We're anxiously watching to see what the House will do and see what their final bill looks like,” said Senate Communications Subcommittee Chairman Mark Pryor, D-Ark. “We'll see what they do and look forward to seeing what they come up with.” He acknowledged legislative days left in the year “are short.” Senate Commerce Committee Chairman Jay Rockefeller, D-W.Va., seemed familiar with the markup planned in the House but did not pay it much mind: “We don’t sort of decide what we're going to do because the House does or doesn’t do something, but we'll be marking that up,” Rockefeller said of STELA. “We've got about 10 things we have to do, but that’s going to be one of them!” Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., declined to weigh in on precisely where his committee stands. But when asked, Leahy said, “I'd love to mark it up today.” Both Commerce and Judiciary have held STELA hearings this year. Pryor also didn’t rule out the possibility the Communications Subcommittee would hold a hearing on Comcast’s proposed buy of Time Warner Cable. “I need to talk with Chairman Rockefeller on that,” Pryor said. “He and I have discussed that a couple of times before, as I have with Senator [John] Thune,” R-S.D., ranking member of Commerce. “But we'll just see what we're going to do on that.”