Legislative Activity

House Approves Email Privacy Act

On February 6, the U.S. House of Representatives (House) passed H.R.387, the Email Privacy Act, by voice vote. The bill updates part of the Electronic Communications Privacy Act of 1986 (ECPA) by enhancing the privacy protections applicable to electronic communications such as emails, social media posts, and other online content that is stored by third-party service providers, such as Internet service providers or email service providers, while preserving the ability of law enforcement to access such communications. Presently, the ECPA provides that law enforcement may search stored communications older than 180 days without a warrant. The legislation would, among other things, require law enforcement to obtain a warrant to access electronic communications regardless of the age of the communications sought. A prior version of the bill passed the House in the 114th Congress, but did not pass in the Senate. The present bill has been referred to the Senate for consideration.

This Week’s Hearings:

• On Tuesday, February 14, the Digital Commerce and Consumer Protection Subcommittee of the House Energy and Commerce Committee will hold a hearing titled “Self-Driving Cars: Road to Deployment.” Witnesses include Mike Abelson, Vice President of Global Strategy, General Motors; Dr. Nidhi Kalra, Co-Director and Senior Scientist, RAND Center for Decision Making Under Certainty; Anders Karrberg, Vice President of Government Affairs, Volvo Car Group; Joseph Okpaku, Vice President of Public Policy, Lyft; and Gill Pratt, Executive Technical Advisor and CEO, Toyota Research Institute.

Regulatory Activity

FCC Announces Close of Forward Auction Clock Phase of Incentive Auction

The FCC announced on February 10 that “bidding in the clock phase of the incentive auction concluded,” and the auction will now “proceed to the assignment phase, in which winning forward auction bidders can bid for specific frequency blocks.” Forward auction bidders submitted gross winning bids of $19.6 billion. FCC Chairman Ajit Pai issued a statement that “[t]oday, the FCC reached a major milestone in the world’s first incentive auction: bidding in the forward auction ended. . . . The participation of [] broadcasters and wireless carriers will enable the [FCC] to release 84 megahertz of spectrum into the broadband marketplace.”

Deadline Extended for Filing Replies to Oppositions to Petitions for Reconsideration of Report and Order in Spectrum Frontiers Proceeding

The FCC has extended to February 24 the deadline for filing replies to oppositions to petitions for reconsideration of the FCC’s 2016 Use of Spectrum Bands Above 24 GHz For Mobile Radio Services Report and Order (R&O). Petitions for reconsideration of that R&O were filed by 5G Americas, Asams Telcom Inc. et al., The Boeing Company, Competitive Carriers Association, CTIA, Inmarsat, Inc. et al., NCTA – The Internet & Television Association, Nextlink Wireless, LLC, SES Americom, Inc. et al., Satellite Industry Association, Telecommunications Industry Association, T-Mobile USA, Inc., and ViaSat, Inc., according to a December 22, 2016 FCC Public Notice. The Public Notice extending the deadline states that an “extension of time is warranted to enable interested parties sufficient opportunity to review and to respond to the complex issues raised by the responses to the petitions for reconsideration.”

FCC Chairman Pai Announces a Number of Process Reform Measures

FCC Chairman Ajit Pai announced a number of process reforms that have already begun to change the way the Commission circulates, reviews, votes, and adopts its items. On February 2, the new Chairman announced a pilot program wherein the FCC would “publicly release . . . the text of all agenda items for monthly Commission meetings.” According to Chairman Pai’s statement, the program is designed to “give the public much more insight into the Commission’s activities.”

A number of other progress reform efforts have followed. On February 6 Chairman Pai’s office announced that it would depart from previous practices where FCC Chairman “briefed the press or published a blog about matters to be voted upon at the FCC’s monthly meetings before sharing those matters with Commissioners.” Instead, Chairman Pai asserts that he will “share with every Commissioner’s office every item that will be considered at an open meeting before anyone in my office discusses the content of those items publicly or the FCC releases the text of those documents.”

The very next day, on February 7, Chairman Pai adopted process reforms suggested by Commissioner Clyburn (to release a fact sheet explaining an item in clear terms at the same time the Commission releases the text of an item to the public), and by Commissioner O’Rielly (requiring that “any substantive edits made to an item between the time it is circulated and the meeting at which [the FCC] vote[s] on it [must] be proposed by a Commissioner, rather than staff.”). Both of these reforms were adopted by the Chairman in order to “allow Commissioners to better understand where edits are coming from.”

On February 8, Chairman Pai adopted a process reform that would require the FCC’s Enforcement Bureau to submit for full Commission review any Consent Decree settling an action voted upon by the full Commission. In other words, “[i]f Commissioners vote to propose and/or impose a forfeiture,” the new process requires that the Enforcement Bureau not settle the matter without FCC approval. According to the Chairman’s statement, a consent decree fitting those parameters was circulated the day the process reform was announced.

Finally, on February 9, FCC Chairman Ajit Pai announced that, beginning at the FCC’s Open Commission Meeting on February 23, “editorial privileges granted to Bureaus and Offices will extend only to technical and conforming edits to items.” Editorial privileges are, according to Chairman Pai’s statement, “the power [of FCC Bureaus and Offices] to make changes to the documents that the [FCC] Commissioners have just voted upon” in an FCC Open Commission Meeting. Chairman Pai states that Commissioner O’Rielly previously raised “concerns about the process of granting editorial privileges,” suggesting specifically that “such privileges currently are too broad, insofar as they extend to substantive edits.” According to Chairman Pai’s statement, beginning at the February meeting, “[a]ny substantive changes made to items following a meeting must be proposed by a Commissioner,” and substantive changes “should only be made in cases in which they are required . . . as a response to new arguments made in a Commissioner’s dissenting statement.”