    [Senate Hearing 115-138]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 115-138

                               OVERSIGHT OF THE
                       FEDERAL COMMUNICATIONS COMMISSION

    =======================================================================

                                    HEARING

                                   before the

                             COMMITTEE ON COMMERCE,
                          SCIENCE, AND TRANSPORTATION
                              UNITED STATES SENATE

                         ONE HUNDRED FIFTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 MARCH 8, 2017

                                   __________

        Printed for the use of the Committee on Commerce, Science, and
                                 Transportation

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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           SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                         ONE HUNDRED FIFTEENTH CONGRESS

                                 FIRST SESSION

                       JOHN THUNE, South Dakota, Chairman
    ROGER F. WICKER, Mississippi         BILL NELSON, Florida, Ranking
    ROY BLUNT, Missouri                  MARIA CANTWELL, Washington
    TED CRUZ, Texas                      AMY KLOBUCHAR, Minnesota
    DEB FISCHER, Nebraska                RICHARD BLUMENTHAL, Connecticut
    JERRY MORAN, Kansas                  BRIAN SCHATZ, Hawaii
    DAN SULLIVAN, Alaska                 EDWARD MARKEY, Massachusetts
    DEAN HELLER, Nevada                  CORY BOOKER, New Jersey
    JAMES INHOFE, Oklahoma               TOM UDALL, New Mexico
    MIKE LEE, Utah                       GARY PETERS, Michigan
    RON JOHNSON, Wisconsin               TAMMY BALDWIN, Wisconsin
    SHELLEY MOORE CAPITO, West Virginia  TAMMY DUCKWORTH, Illinois
    CORY GARDNER, Colorado               MAGGIE HASSAN, New Hampshire
    TODD YOUNG, Indiana                  CATHERINE CORTEZ MASTO, Nevada
                           Nick Rossi, Staff Director
                     Adrian Arnakis, Deputy Staff Director
                        Jason Van Beek, General Counsel
                     Kim Lipsky, Democratic Staff Director
                  Chris Day, Democratic Deputy Staff Director
                          Renae Black, Senior Counsel

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on March 8, 2017....................................     1
    Statement of Senator Thune.......................................     1
        Letter dated March 7, 2017...................................    74
    Statement of Senator Nelson......................................     3
    Statement of Senator Schatz......................................    20
    Statement of Senator Wicker......................................    22
    Statement of Senator Booker......................................    23
    Statement of Senator Fischer.....................................    25
    Statement of Senator Udall.......................................    27
    Statement of Senator Moran.......................................    29
    Statement of Senator Peters......................................    31
    Statement of Senator Young.......................................    33
    Statement of Senator Cortez Masto................................    35
    Statement of Senator Capito......................................    37
    Statement of Senator Klobuchar...................................    40
    Statement of Senator Markey......................................    41
        Letter dated March 7, 2017 to Hon. Ajit Pai, Hon. John Thune
          and Hon. Bill Nelson.......................................    43
    Statement of Senator Lee.........................................    46
    Statement of Senator Blumenthal..................................    48
        Article dated February 10, 2017 from The New York Times,
          entitled ``An Anti-Consumer Agenda at the F.C.C.''.........    48
        Article dated February 11 from The Washington Post entitled,
          ``The FCC talks the talk on the digital divide--and then
          walks in the other direction'' by the Editorial Board......    49
        Letter dated March 7, 2017 to Senator John Thune and Senator
          Bill Nelson from Jonathan Schwantes, Senior Policy Counsel
          and Laura MacCleery, Vice President of Consumer Policy &
          Mobilization, Consumers Union..............................    50
    Statement of Senator Heller......................................    56
    Statement of Senator Cantwell....................................    58
    Statement of Senator Hassan......................................    60
        Article dated March 6, 2017 from The Hill by Michael Copps,
          Opinion Contributor, entitled, ``Its urgent that Ajit Pai
          Vices His Support for a Free Press''.......................    61
    Statement of Senator Gardner.....................................    62
    Statement of Senator Cruz........................................    64
    Statement of Senator Sullivan....................................    66
    Statement of Senator Johnson.....................................    68
        Article dated March 3, 2017 entitled, ``Taking Stock of FCC
          Paperwork Burdens'' by Michael O'Rielly, Commissioner,
          Federal Communications Commission..........................    70

                                   Witnesses

    Hon. Ajit Pai, Chairman, Federal Communications Commission.......     4
        Prepared statement...........................................     6
    Hon. Mignon L. Clyburn, Commissioner, Federal Communications
      Commission.....................................................     9
        Prepared statement...........................................    11
    Hon. Michael O'Rielly, Commissioner, Federal Communications
      Commission.....................................................    15
        Prepared statement...........................................    16

                                    Appendix

    Response to written questions submitted to Hon. Ajit Pai by:
        Hon. John Thune..............................................    77
        Hon. Roy Blunt...............................................    77
        Hon. Dean Heller.............................................    78
        Hon. Bill Nelson.............................................    78
        Hon. Maria Cantwell..........................................    83
        Hon. Amy Klobuchar...........................................   100
        Hon. Richard Blumenthal......................................   103
        Hon. Brian Schatz............................................   104
        Hon. Edward Markey...........................................   106
        Hon. Cory Booker.............................................   106
        Hon. Tom Udall...............................................   109
        Hon. Gary Peters.............................................   118
        Hon. Tammy Duckworth.........................................   120
        Hon. Catherine Cortez Masto..................................   153
    Response to written questions submitted to Hon. Mignon L. Clyburn
      by:
        Hon. Maria Cantwell..........................................   154
        Hon. Edward Markey...........................................   155
        Hon. Cory Booker.............................................   157
        Hon. Tammy Duckworth.........................................   158
        Hon. Catherine Cortez Masto..................................   158
    Response to written questions submitted to Hon. Michael O'Rielly
      by:
        Hon. Maria Cantwell..........................................   159
        Hon. Cory Booker.............................................   160
        Hon. Tom Udall...............................................   161

                               OVERSIGHT OF THE
                       FEDERAL COMMUNICATIONS COMMISSION

                                  ----------

                            WEDNESDAY, MARCH 8, 2017

                                           U.S. Senate,
            Committee on Commerce, Science, and Transportation,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:05 a.m. in
    room SH-216, Hart Senate Office Building, Hon. John Thune,
    Chairman of the Committee, presiding.
        Present: Senators Thune [presiding], Wicker, Blunt, Cruz,
    Fischer, Moran, Sullivan, Heller, Inhofe, Lee, Johnson, Capito,
    Gardner, Young, Nelson, Cantwell, Klobuchar, Blumenthal,
    Schatz, Markey, Booker, Udall, Peters, Baldwin, Hassan, and
    Cortez Masto.

                 OPENING STATEMENT OF HON. JOHN THUNE,
                     U.S. SENATOR FROM SOUTH DAKOTA

        The Chairman. Welcome to today's hearing on Oversight of
    the Federal Communications Commission. I should point out since
    this Committee has jurisdiction over sports that last night,
    the South Dakota State University Jack Rabbits punched their
    ticket to the NCAA tournament by winning the Summit League
    tournament. So a lot of folks are happy in South Dakota. I know
    I'm getting gaveled down up here by someone, but--oh, that was
    applause? That's what you're supposed to do.
        [Laughter.]
        The Chairman. All right. The last time that we met was 6
    months ago, and a lot has changed since then. We have a new FCC
    Chairman, a new majority in charge of the agency, and we have
    several new members of this committee for whom this is their
    first FCC oversight hearing.
        At our last hearing, I said I hoped to see changes to how
    the Commission operates. I urged all members of the Commission
    to treat each other fairly, to respect the law, to be willing
    to ask Congress for guidance, and to seek consensus whenever
    and wherever possible. While still in the early days, I am
    heartened because the new FCC leadership seems to have heeded
    this advice.
        The FCC's first actions under Chairman Pai were to make
    much needed reforms to improve the agency's processes and
    transparency. Counter to the trend of Chairman Pai's recent
    predecessors, who often sought to amass as much power in the
    Chairman's office as they could, these simple steps instead
    empower the public and other Commissioners.
        Chairman Pai has emphasized that bridging the digital
    divide will be one of the core principles guiding the agency
    under his leadership. Representing a rural state where many
    people are still without broadband service, this is a goal he
    and I both share.
        Indeed, the FCC has already taken huge steps to advance
    broadband deployment by moving forward with the long-delayed
    second phases of both the Mobility Fund and the Connect America
    Fund. That the Commission could move forward so quickly with
    these Universal Service Fund items, even during a time of
    agency transition, begs the question as to why they were not
    completed much, much sooner.
        Nevertheless, it is refreshing to see the agency take
    decisive action to help bring broadband to every corner of the
    country. It is also nice to see the FCC finally move forward
    with two broadcasting items that will help AM radio and
    broadcast television better serve the American public.
        I recognize, however, that not everything the Commission
    will do will be as nonpartisan or so positively received as
    Chairman Pai's first open meeting agenda. I was a vocal critic
    of the previous Chairman's hyper-partisan leadership style, and
    I recognize it will not be an easy task to rectify some of the
    agency's biggest missteps from the last few years. I am
    referring, of course, primarily to the 2015 Title II order and
    the subsequent broadband privacy order.
        While I am sure there are other actions that may need to be
    revisited, I do think we need to hit reset on both of these
    items. And I'm glad to see the FCC has already started that
    process by staying certain parts of the rules that were set to
    go into effect last week.
        As I suspect everyone in this room knows, I feel pretty
    strongly that the best way to provide long-term protections for
    the Internet is for Congress to pass bipartisan legislation.
    But since we don't yet have agreement on that front, despite
    good will on both sides, there's no reason for the FCC to hold
    off doing what is necessary to rebalance the FCC's regulatory
    posture under current statutes. Something tells me much of
    today's hearing will be dedicated to this topic.
        The open Internet debate, however, should not distract the
    FCC from important work it must do in other areas as well. For
    instance, the FCC is in the final stages of the broadcast TV
    incentive auction, which has been a real success. Eighty-four
    megahertz of spectrum have been reallocated for wireless
    broadband and billions of dollars dedicated for deficit
    reduction.
        While the auction process may be almost done, the FCC's
    work is far from complete. The clock will soon start on the
    broadcaster repacking process, and this will be no small
    undertaking for the agency nor for many TV stations. I urge the
    Commission to do everything in its power to ensure this
    transition is successful and occurs as quickly and responsibly
    as possible.
        Robocalls represent another problem that needs to be
    addressed. The FCC's proposed rulemaking on this month's agenda
    is a positive step in the right direction. The government must
    do everything we can to protect consumers from those who are
    truly the bad actors, which is one reason why this committee
    has also worked on anti-spoofing legislation. But we also need
    to be sure the government's rules are not unfairly punishing
    legitimate callers who are not acting maliciously. The FCC's
    proposed Notice of Inquiry will give a much-needed jumpstart to
    that conversation.
        Last, I would note for my colleagues that we will be busy
    this year with FCC nominations. Chairman Pai's term has
    expired, and he is now in his holdover year, but just yesterday
    the President re-nominated him to another full term. There are
    obviously two vacant seats on the Commission right now. And
    Commissioner Clyburn's current term also expires at the end of
    June. Once the President makes his nominations for the FCC, it
    is my hope that the Senate will move swiftly to review and
    confirm the President's appointees.
        The most important thing, however, is that we not allow the
    FCC to fall below a functioning quorum. I know no responsible
    person would willingly deprive the agency of its ability to
    protect consumers and the marketplace, and ensuring the agency
    is sufficiently constituted will be a priority of mine this
    year.
        So thank you, and I'll recognize Ranking Member Nelson for
    his opening statement.

                    STATEMENT OF HON. BILL NELSON,
                       U.S. SENATOR FROM FLORIDA

        Senator Nelson. Thank you, Mr. Chairman. I welcome all
    three members of the FCC, including the new Chairman in his
    first appearance as Chairman. The President has re-nominated
    him and given him primary responsibility over what this Senator
    believes is one of the most important consumer protection
    agencies of the Federal Government.
        For the last 8 years, the FCC has had the consumer's back.
    Ultimately, for this Senator, the success or failure of the
    Commission rests not on the fulfillment of wish lists, but on
    how those who are least able to protect themselves have been
    treated and whether First Amendment rights, including those of
    journalists, are vigorously protected.
        Since assuming the chairmanship in just the last few weeks,
    the FCC, Chairman Pai, under your leadership has acted to
    prevent millions of broadband subscribers from receiving key
    information about the rates, terms, and conditions of their
    service; acted to guarantee that broadband subscribers will
    have less protections with respect to the security of their
    online data, while promising to further weaken the duties
    broadband providers owe to protect the web browsing history and
    other personal information of their paying subscribers. By the
    way, that'll arouse people pretty quick when you start stealing
    their personal data.
        The third thing is just in the last few weeks, threatened
    the expansion of broadband into the homes of low-income
    Americans by limiting the effectiveness of new Lifeline program
    reforms; and the fourth thing in the last few weeks, formally
    rescinded an FCC staff report detailing the implementation of
    the agency's comprehensive E-Rate modernization effort that
    sent shock waves through schools and the libraries across the
    country, which are worried that you will try to upend this
    highly functioning and bipartisan program.
        These are actions that directly impact the lives of
    millions of Americans. I hope they're not signs of things to
    come. Because, at the end of the day, the FCC has the
    responsibility to put the public interest ahead of powerful
    special interests. Just as it has with past chairmen, Congress
    expects the Commission to uphold the laws it has passed and
    enforce the regulations properly adopted by the agency. That is
    what the public interest and this Senator has and will continue
    to demand.
        Now, there's something left undone that hasn't been done,
    and that is--the three of us right here were just talking about
    it, discussing my frustration with the fact that Jessica
    Rosenworcel is not sitting here today in front of us. The
    failure to confirm her in the last Congress, that was made a
    commitment as an exchange of the appointment of Commissioner
    O'Rielly--that commitment was never fulfilled, and that's a
    black mark on the Senate. And the President's decision to pull
    her nomination last week, I think, was unfortunate.
        I hope that the White House is going to correct that and
    nominate this impressive public servant for another FCC term
    once again. And if that happens as it should, it is imperative
    for the Senate leadership to live up to its promise and confirm
    her nomination with all dispatch.
        Thank you, Mr. Chairman.
        The Chairman. Thank you, Senator Nelson, and I would share
    your high level of interest in getting a full complement of
    Commissioners on the Commission, and I hope that we receive
    those nominations soon, and we will process them very quickly
    through this Committee when that time comes.
        I do want to recognize the Commissioners we have in front
    of us today, and thank you for being here. We're going to start
    with Ajit Pai, who I congratulate on being nominated yesterday
    by the President to another term at the FCC. The agency has a
    lot of work ahead of it, and getting reconfirmed soon will help
    you focus on steering the Commission in the right direction,
    and if we're lucky, perhaps, if you perform well today, this
    could double as your re-nomination hearing, allowing us to move
    quickly toward that confirmation.
        And, Commissioner Mignon Clyburn, welcome. It's good to
    have you here, and Commissioner Mike O'Rielly.
        So we'll start with you, Mr. Chairman, if you'd make your
    remarks, and then turn to Commissioner Clyburn and Commissioner
    O'Rielly.
        Senator Nelson. Did you get that? If you perform well?
        [Laughter.]
        Chairman Pai. No pressure.

                 STATEMENT OF HON. AJIT PAI, CHAIRMAN,
                   FEDERAL COMMUNICATIONS COMMISSION

        Chairman Pai. Chairman Thune, Ranking Member Nelson,
    members of the Committee, thank you for holding this hearing
    today. I also wish to thank the President for the confidence he
    has shown in me by nominating me to serve a second term at the
    FCC.
        Before discussing the matters relating to the agency, I
    would like to offer a personal note. I grew up in the great
    state of Kansas, and I am an Indian American. Just a few months
    ago, I made a professional visit to Garmin's headquarters in
    Olathe, Kansas. It was thus quite painful to me to learn of the
    cold-blooded murder of Garmin engineer Srinivas Kuchibhotla,
    and the shootings of Alok Madasani and Ian Grillot. I cannot
    fathom how those involved must feel. As it stands, words cannot
    capture how this has hurt those of us, particularly those of
    Indian descent, who call Kansas home.
        But I do want to say that my thoughts and my prayers are
    with the Kuchibhotla, Madasani, and Grillot families, to thank
    Mr. Grillot for the courage he showed in risking his life, and
    to stand alongside the millions of Kansans in saying that the
    perpetrator is the despicable exception that proves the rule
    when it comes to the spirit of openness and respect in the
    sunflower state.
        Returning to the focus of today's hearing, I'd like to
    discuss four FCC priorities: closing the digital divide,
    promoting innovation, protecting consumers and public safety,
    and reforming the FCC's processes.
        First, high-speed Internet access, or broadband, is
    critical to economic opportunity. But broadband is unavailable
    or unaffordable in too many places. The FCC can help close this
    digital divide by more efficiently targeting Federal funds
    under USF programs, by revising regulations that deter private
    investment in next-generation networks, and by creating
    deployment-friendly best practices.
        In the first 6 weeks of my chairmanship, we've already
    taken told action along these lines. We adopted on a bipartisan
    basis a $4.5 billion plan to advance 4G LTE across our country.
    We finalized rules, again on a bipartisan basis, to provide $2
    billion to deliver fixed broadband to unserved Americans. We've
    eliminated outdated rules so that providers can spend on
    broadband deployment rather than on unnecessary paperwork. And
    we've established for the first time a Broadband Deployment
    Advisory Committee that will, among other things, develop a
    model code for localities that are interested in broadband
    deployment fair and friendly policies.
        Second, promoting innovation. Another FCC priority is
    creating an innovation-friendly regulatory environment.
    Entrepreneurs are constantly developing new technologies and
    services. But too often, they are unable to bring them to
    market for consumers because outdated rules or regulatory
    inertia stand in the way. Going forward, I want the FCC to
    facilitate rather than frustrate innovation.
        Last month, for example, we proposed to allow television
    broadcasters to fully enter the digital era by adopting the
    Next Generation Television standard on a voluntary, market-
    driven basis. We also authorized the first ever LTE unlicensed
    devices in the 5 gigahertz band, a significant advance for
    wireless innovation and spectrum sharing. And we have allowed
    wireless consumers to benefit from innovative free data
    offerings.
        Third, the FCC's core mission is to serve the broader
    public interest, and that means protecting consumers. For
    instance, all Americans seem united in their disgust of
    robocalls. They are the number one consumer complaint to the
    FCC year end and year out, and it's no wonder. Every year,
    Americans receive approximately 2.4 billion robocalls.
        So I've teed up an aggressive agenda to target unlawful
    robocalls. This month, for instance, the Commission will vote
    on my proposal to allow carriers to block many spoofed
    robocalls. There is no reason why any legitimate caller should
    be spoofing numbers so that they appear to be coming from an
    invalid or an unassigned phone number.
        When it comes to public safety, last Friday, we granted an
    emergency waiver of caller ID rules to Jewish community centers
    in order to enable law enforcement to identify those who were
    responsible for the recent wave of bomb threats. I hope that
    this measure among others helps bring the perpetrators to
    justice.
        Fourth and finally, process reform. As Chairman, I'm
    working to make the FCC more open and more transparent. For
    example, I've always found it strange that the public wasn't
    allowed to see Commission meeting items until after the
    Commission voted. Generally well-connected lobbyists were still
    in the know, but everyday Americans were in the dark.
        At long last, that is changing. Last month, I made public
    the full text of two draft items on the agenda as part of a
    pilot project. Things went so well that last week I made public
    the draft text and fact sheets for all six items before our
    March meeting. That's just one of the many ways I intend to
    make the FCC more open and accountable to the American people.
    I look forward to working with my colleagues to implement more
    process reforms in the time to come.
        Chairman Thune, Ranking Member Nelson, and members of the
    Committee, thank you once again for holding this hearing. I
    look forward to answering your questions and continuing to work
    with you in the time to come.
        [The prepared statement of Chairman Pai follows:]

                Prepared Statement of Hon. Ajit Pai, Chairman,
                       Federal Communications Commission
        Chairman Thune, Ranking Member Nelson, and Members of the
    Committee, thank you for giving me the opportunity to testify today.
    For almost five years, it has been an honor to work with many of you on
    a wide variety of issues. Now, in my new role as Chairman of the
    Federal Communications Commission, I look forward to continued
    collaboration as we try to bring digital opportunity to all Americans.
        I would like to discuss four areas I will be emphasizing so long as
    I am privileged to serve as Chairman: closing the digital divide;
    promoting innovation; protecting consumers and public safety; and
    reforming the FCC's processes.
        1. Closing the Digital Divide.--High-speed Internet access, or
    broadband, is critical to economic opportunity. But there are still too
    many parts of this country where broadband is unavailable or
    unaffordable. There is a real and growing digital divide in America. In
    wealthier, metropolitan areas, 4G LTE is ubiquitous, and gigabit fixed
    service is expanding. But many rural areas are being left behind.
        I've seen this firsthand in my travels across the country. In West
    Virginia, for example, Senator Capito and I met with small business
    owners who were frustrated by their lack of high-quality broadband
    access--and we heard how fixing the problem could revitalize their
    economy. I've been to the far reaches of Alaska and heard from Alaska
    Natives that a lack of middle-mile connectivity has made it harder to
    connect their communities. And I have listened to people in Kansas and
    South Dakota and Nevada and Mississippi and elsewhere who worry that
    without broadband, they and their children won't have the ability to
    compete and prosper in the 21st century.
        The FCC has tools that it can use to help close this digital
    divide. First, we can more wisely apply Federal funds under the
    Universal Service Fund programs that we administer. Second, we can
    revise regulations that deter the private sector from investing in
    next-generation networks. Finally, we can aid state and local
    governments, as well as the private sector, by creating deployment-
    friendly best practices. With these tools, we could bring down the cost
    of deploying broadband and create incentives for providers to connect
    consumers in hard-to-serve areas.
        We are already using these tools and turning the aspiration of
    ubiquitous Internet access into reality.
        First, with respect to subsidies: On February 23, the FCC adopted
    two separate orders to spur the buildout of mobile and fixed broadband
    networks in rural America, and with that took two major steps toward
    connecting rural America.
        One order involves what is known as Mobility Fund Phase II. The
    goal of the Mobility Fund is to ensure that all Americans have access
    to advanced wireless services. But not all do. I myself was struck,
    during a recent drive from Wichita, Kansas to Des Moines, Iowa, how
    often the signal on my mobile phone was either weak or nonexistent. And
    that was even on relatively major roads such as Interstate 35.
        In order to solve this problem, the FCC adopted, on a bipartisan
    basis, a plan to bring 4G LTE service to millions of rural Americans
    who don't have it today. Over ten years, we will spend over $4.5
    billion to bring mobile broadband to unserved areas. And by
    distributing this money through a reverse auction, we will ensure that
    we do so in a fiscally responsible way.
        I appreciate the bipartisan support this initiative has received in
    Congress (including on this Committee) and at the Commission. And I
    look forward to working with my colleagues and all of you as we start
    implementing our plan.
        Turning to the second order, the FCC also voted on February 23 to
    finalize the rules for allocating nearly $2 billion from the Connect
    America Fund, which aims to advance fixed broadband service across the
    country. Here again, we will direct financial support to deploy fixed
    broadband in unserved rural areas using a competitive reverse auction.
    My aim is to get the best deal for the American people with the limited
    funds we have available. And I am pleased that we were able to adopt
    this order on a bipartisan basis.
        And in the FCC's very first vote under my leadership, we approved--
    yet again on a bipartisan basis, and this time with bipartisan
    cooperation from Congress--a partnership with New York State to combine
    up to $170 million in Federal universal service funds with state funds
    to deploy broadband in unserved areas in Upstate New York. This means
    that for the first time, thousands of people in the Empire State will
    finally have high-speed Internet access.
        In addition to providing targeted funding to expand broadband
    deployment in rural America, the FCC also can lower the cost of
    deployment through regulatory reform. We need to reduce the red tape
    and make it easier for broadband providers to build or expand next-
    generation networks. That's why, on January 31, I announced the
    creation of the Broadband Deployment Advisory Committee, or BDAC. This
    advisory committee will focus on the best ways to promote broadband
    deployment. One of the BDAC's key tasks will be to draft a deployment-
    friendly model code that any city or town could use as a template. And
    the BDAC will also look at reforms the FCC can adopt to lower the cost
    and expedite the process of broadband deployment. The response to the
    announcement of the BDAC's formation has been tremendous. Over 380
    individuals applied, and we are currently in the process of selecting
    the members and setting up the Committee.
        We also have already taken some important steps to clear regulatory
    burdens which inhibit broadband deployment. In February, for example,
    we ended the requirement that price cap carriers maintain a separate
    set of accounting books merely for regulatory purposes. Carriers were
    spending millions each year to maintain these accounts, even though
    career staff told us that in the last few years the FCC has never
    needed to rely on data they generated. By clearing away this
    regulation, carriers will be able to use those resources to invest in
    new networks rather than unnecessary paperwork. Later this month, we
    will also vote on reforming our cellular license rules. This will allow
    carriers to have greater flexibility in using their cellular licenses
    so they can more easily deploy 4G and 5G mobile services. These types
    of common-sense regulatory reforms aren't particularly flashy, but they
    are vital to promoting aggressive buildout throughout our Nation.
        2. Promoting Innovation.--Another key priority for the FCC is to
    create a regulatory environment in which innovation can thrive.
    Entrepreneurs are constantly coming up with new technologies and
    services. But consumers aren't well-served when outdated rules and
    bureaucratic inertia stand in the way of bringing them to the market.
        Under my leadership, I want the FCC to facilitate, not frustrate,
    innovation. That's why last month, for example, we started a proceeding
    aimed at allowing television broadcasters to innovate and fully enter
    the digital era. Engineers in the broadcast industry have been hard at
    work developing a new transmission standard that would let broadcasters
    merge the capabilities of over-the-air broadcasting with broadband
    connectivity. This Next Gen TV standard, also known as ATSC 3.0, is the
    first one to leverage the power of the Internet, and it promises to
    dramatically transform broadcasting.
        With Next Gen TV, broadcasters could offer innovative technologies
    and services to consumers, including ultra-HD picture and immersive
    audio, improved over-the-air reception, and more localized content.
    This new standard would also enable better accessibility options for
    those with disabilities. It could enable advanced emergency alerting
    with alerts tailored to particular communities and wake up sleeping
    devices to warn consumers of imminent emergencies. And it could give
    consumers the ability to watch over-the-air programming from their
    mobile devices. But this new standard can't be deployed without the
    approval of the FCC.
        Fortunately, last month, the Commission unanimously proposed to
    allow broadcasters to deploy Next Gen TV on a voluntary, market-driven
    basis. I hope that we will be able to give final approval for the
    standard by the end of the year.
        But our work to promote innovation doesn't stop there. Last month,
    the FCC authorized the first-ever LTE-U (LTE for unlicensed) devices in
    the 5 GHz band--a significant advance in wireless innovation and
    spectrum sharing. This means wireless consumers will get to enjoy the
    best of both worlds: a more robust, seamless experience when their
    devices are using cellular networks and the continued enjoyment of Wi-
    Fi, one of the most creative uses of spectrum in history.
        The Commission has also ended its investigation into the free-data
    offerings of wireless carriers. Innovative offerings like T-Mobile's
    Binge On have been popular with consumers, particularly low-income
    Americans, and have enhanced competition in the marketplace. I firmly
    believe the Commission should favor permissionless innovation in this
    fiercely competitive market--and rely on consumer choice to sort out
    what innovations best serve the public interest.
        3. Protecting Consumers and Public Safety.--The FCC's core mission
    has always been to serve the broader public interest, and that means
    protecting consumers and keeping the public safe. We have made progress
    on each front in just a month and a half.
        One thing that seems to unite all Americans is the ever-rising tide
    of robocalls that disrupts family dinners and target vulnerable
    populations like older Americans with scams. Robocalls are the number
    one consumer complaint to the FCC from the public, and it's no wonder:
    Every month, U.S. consumers are bombarded by about 2.4 billion
    robocalls. It's time to end this threat.
        That's why I have teed up an aggressive agenda to target and
    eliminate unlawful robocalls. As a first step, the Commission will vote
    this month on my proposal to let carriers block spoofed robocalls, that
    is, calls in which a scammer conceals his identity on Caller ID by
    using a fake number, such as a number associated with the IRS. The
    proposed rules would allow carriers to block spoofed calls where the
    owner of the number being spoofed requests it as well as calls that
    purport to come from unassigned or invalid phone numbers (there's a
    database that keeps track of all phone numbers, and many of them aren't
    assigned to a voice service provider or aren't otherwise in use). There
    is no reason why any legitimate caller should be spoofing numbers in
    this way--it's just a way for scammers to evade the law.
        Another consumer protection is improving communications services
    for Americans who are deaf and hard of hearing. For 15 years, video
    relay service (VRS) has enabled deaf and hard-of-hearing individuals to
    call friends, family members, and others using American Sign Language
    (ASL) and a videophone, and to have their calls interpreted from signs
    to voice and vice versa. And for four years, I have been pushing to
    improve the quality of these services and make them more functionally
    equivalent to the voice services available to hearing individuals.
    Later this month, the Commission will vote on concrete steps to do just
    that--steps such as a skills-based routing trial, standardized quality-
    of-service metrics, and letting VRS users call directly family members
    and friends who know ASL.
        Another area in which we are working to help the American people is
    preventing the use of contraband cell phones in correctional
    facilities. I have visited several of these facilities, from a maximum
    security prison in Georgia to a minimum security unit in Massachusetts.
    And I've consistently heard stories of how contraband cell phones are
    used to run drug operations, to conduct phone scams, and to facilitate
    violent acts, including murders. The FCC proposed certain reforms four
    years ago to address this problem. This month, we will finally vote on
    some of them, such as enabling the use of radio-based technologies to
    detect and block the use of contraband phones in prisons and jails.
    I've also asked my colleagues to agree to solicit public input on other
    solutions for addressing this pressing problem, including disabling
    illicit devices and geo-fencing.
        Furthermore, recent events have made clear that the FCC's public
    safety role includes urgent short-term action, not just longer-term
    rulemaking. Last Wednesday, the agency received requests to grant a
    waiver to Jewish Community Centers and telecommunications carriers to
    allow them to identify the perpetrator(s) of violent threats to those
    centers in dozens of locations. I quickly reviewed the requests and
    directed the FCC staff to act with dispatch. They did. This past
    Friday, our Consumer and Governmental Affairs Bureau granted the
    emergency waiver (with Commissioners' assent, for which I am grateful).
    I hope this measure helps law enforcement apprehend and bring to
    justice any person who has made such threats.
        4. Reforming the FCC's Processes.--For many years, those inside and
    outside the agency have called for process reforms to make the work of
    the FCC more transparent. As a minority Commissioner at the agency, I
    was not shy about pressing for changes that would give all
    Commissioners greater say in the agency's operations. And as a
    Chairman, I have made it a priority to implement those reforms. I have
    taken meaningful steps to devolve power from the Chairman's Office and
    return it to my colleagues and the agency as a whole. I want to
    highlight just a couple of those reforms today.
        First, I always found it strange that the public was not allowed to
    see what the FCC was voting on until after the FCC voted. Of course,
    well-connected lobbyists could generally find out much of what was in
    the Commission's draft proposals and orders. But hundreds of millions
    of Americans were left in the dark.
        As a Commissioner, I was told that it simply was not practical to
    release the text of the documents prior to Commission meetings. As
    Chairman, I worked as quickly as possible to put that proposition to
    the test. On February 2, three weeks before our February meeting, I
    started a pilot program and made public the full text of two draft
    items on the meeting's agenda. Things went so well that last week, I
    made public the draft text of all six items for our March meeting, as
    well as one-page fact sheets and a public blog post describing them.
    Allowing anyone, anywhere to see these documents publicly is another
    step towards shedding more sunlight on the FCC's operations.
        I would like to thank Commissioner O'Rielly for his strong
    leadership on the issue of process reform. And I would like to commend
    Commissioner Clyburn for her suggestion that fact sheets accompany the
    release of draft meeting items. I'm optimistic that after this month's
    meeting, we will be able to end the pilot program and establish
    permanent procedures for releasing items to the public three weeks in
    advance of our meetings. This is just one example of how I intend to
    make the FCC more open and accountable to the American people. I look
    forward to working with my colleagues to implement more process reforms
    in the weeks to come.
                                     * * *
        In the first six weeks of my Chairmanship, we have hit the ground
    running. And let me emphasize the ``we.'' What we have accomplished so
    far is a tremendous credit to the nonpartisan, Federal employees of the
    agency--our hard-working professional staff, who are the agency's
    strongest assets. It is a credit to my colleagues Commissioner Clyburn
    and Commissioner O'Rielly, who have been integral in moving the agenda
    forward and doing so time after time on a bipartisan basis. And it is a
    credit to you, our congressional overseers, as well as other elected
    officials like Senator Schumer, who have highlighted the many issues
    the FCC must tackle in a bipartisan manner. These past six weeks have
    only re-affirmed my view that no FCC office or floor holds a monopoly
    on wisdom.
        And as we move forward, I hope we can continue to work together on
    a bipartisan basis to close the digital divide, promote innovation,
    protect consumers and public safety, and improve the FCC's processes
    and procedures.
        Chairman Thune, Ranking Member Nelson, and Members of the
    Committee, thank you once again for holding this hearing and allowing
    me the opportunity to speak. I look forward to answering your
    questions, listening to your views, and continuing to work with you and
    your staff in the days ahead.

        The Chairman. Thank you, Chairman Pai.
        Commissioner Clyburn?

      STATEMENT OF HON. MIGNON L. CLYBURN, COMMISSIONER, FEDERAL
                       COMMUNICATIONS COMMISSION

        Commissioner Clyburn. Chairman Thune, Ranking Member
    Nelson, members of the Committee, good morning. It is an honor
    to once again appear before you to share my priorities for
    putting consumers first.
        During my more than seven years as an FCC Commissioner, I
    have been an advocate for those whose voices far too often go
    unheard. This means looking out for our Nation's most
    vulnerable populations, including families who should not have
    to give up food or healthcare just to keep in touch with an
    incarcerated loved one. It also means enabling broadband access
    for those living at or below the poverty line so they will be
    able to apply for jobs, start a business, or benefit from
    telehealth services.
        My vision for robust competition, affordable connectivity,
    reliable service, no-surprise billing, and an Open Internet for
    all informs what I would like to share with the Committee
    today, including several of the issues at the top of my
    priority list. When we talk about the principles underpinning
    an open internet, a larger question must be asked. Will there
    be a cop on the beat in a broadband world? When we rightly talk
    about finite universal service dollars supporting just one
    provider in a remote area, we cannot rely solely on the
    disciplining forces of competition to protect consumers.
        The FCC must continue in its present role as the protector
    of consumers and an enabler of choice in the broadband
    ecosystem. If not the FCC, who will consumers turn to when
    their broadband provider throttles their favorite website? And
    what if there were a billing dispute, poor service, privacy
    concerns? These questions underlie the many reasons why I
    strongly supported the Commission's 2015 Open Internet Order
    and continue to believe it provides the best legal framework to
    protect consumers, innovators, and entrepreneurs.
        Consistent with the FTC's privacy framework, I am proud of
    the steps taken by the FCC last October to empower consumers to
    make informed choices about their personal information and give
    broadband providers the flexibility to comply with the rules in
    a manner that works for their company. I am committed to do
    everything I can to ensure consumers have the tools to protect
    their privacy in a broadband world.
        While much attention has been given to the Commission's
    work on Open Internet and privacy, the inmate calling regime
    continues to be the greatest and most distressing form of
    injustice I have witnessed in my 18 years as an industry
    regulator. We cannot continue to turn our backs while a wife
    pays as much as $24 for a 15-minute call with her husband. I
    applaud the leadership of Senators Booker and Duckworth on
    these issues and look forward to working with all interested
    offices to ensure that an inmate's debt to society is not paid
    again and again by their sons and daughters, mothers and
    fathers, and grandparents.
        More broadly, I applaud this Congress' focus on broadband
    infrastructure and access. The FCC's Universal Service mandate
    can be described as a four-legged stool, with four different
    programs working in concert to close the digital divide.
    Collectively, these programs are enabling rural broadband
    deployment, improving rural healthcare, they're bringing about
    connectivity to schools and libraries, and tacking the
    affordability gap. We cannot leave out any leg of the stool and
    expect it to continue to stand.
        This means we need action on reforming our rural healthcare
    program. It also means being courageous about reforming the
    contribution system which is increasingly becoming a heavy
    burden on senior citizens who can ill afford to shoulder the
    burden of nationwide broadband deployment.
        Turning now to our media ownership rules, I believe the
    conversation must start by asking how we move the inclusion and
    opportunity needle for those seeking to fulfill the dream of
    owning and operating broadcast properties. To this end, I
    support reinstating an FCC tax certificate program, working
    with the broadcast industry to start a pilot incubator program
    to aid new entrance or disadvantaged businesses, and increasing
    diversity both in front and behind the camera.
        Finally, we must focus on enhancing consumer protection. In
    a Consumers Report survey last year--over 172,000 subscribers--
    of those who were surveyed, only one-third of those said that
    they were very or completely satisfied with their home
    internet, pay TV, or telephone service. As a Commissioner at
    the agency responsible for overseeing the communications
    sector, this is highly alarming. We can and must do more.
        There are many more issues I am hopeful the Commission will
    tackle, including streamlining of the broadband infrastructure
    deployment, telehealth and telemedicine, the advancement of 5G,
    and enhancing access to 911 service. My written testimony
    addresses many of these issues in greater detail. But, once
    again, I thank you for the opportunity to present before you
    today and look forward to answering any questions you may have.
        [The prepared statement of Commissioner Clyburn follows:]

          Prepared Statement of Hon. Mignon L. Clyburn, Commissioner,
                       Federal Communications Commission
        Chairman Thune, Ranking Member Nelson and Members of the Committee,
    good morning. It is an honor to once again appear before you to share
    my priorities for putting #ConsumersFirst. For me, this includes taking
    the steps necessary to enable robust competition, affordable
    connectivity, reliable service, no surprise billing and an open
    Internet for all.
        Not only do I believe the FCC has the legal responsibility under
    the Communications Act to put consumers first, it has a moral
    responsibility. By this I mean we have an obligation to look out for
    our Nation's most vulnerable populations: school children seeking to
    complete their homework after the dismissal bell rings; families trying
    to communicate affordably with incarcerated loved ones; or those living
    at or below the poverty line who desire an affordable broadband option
    so they can apply for jobs, start a business or access telehealth
    services.
        In pursuit of these goals, last October, our office hosted a
    solutions-focused policy forum known as #Solutions2020. The half-day
    event, held on the campus of Georgetown University Law Center was a
    resounding success with more than 100 attendees and countless more
    tuning in online for the live stream. Following the event, in December,
    we released a draft call to action plan, which presented a
    comprehensive framework and approach to communications policies that
    will allow for robust, affordable connectivity for all Americans within
    the next four years.
        As a result of public comments from more than two dozen
    organizations, we expect to release a final action plan later this
    month on FCC.gov and I remain hopeful that we can work on a bipartisan
    basis to achieve these basic goals by the end of the decade.
        During my more than seven years as an FCC Commissioner, I have made
    it my focus to be an advocate for those whose voices far too often go
    unheard. Consistent with this approach, I would like to share several
    issue areas I intend to prioritize this year.
    Preserving a Free and Open Internet
        When we talk about the principles underpinning an open Internet, a
    larger question must be asked. Will there be a cop on the beat in a
    broadband world? The FCC supports broadband networks with universal
    service dollars, adjudicates disputes between broadband providers and
    is paving the way for the transition from a voice world to a broadband
    world.
        I believe that the FCC must continue in its present role as
    protector of consumers and enabler of competition in the broadband
    ecosystem. If not the FCC, who will consumers turn to when their
    broadband provider throttles their favorite website? And what if there
    is a billing dispute? Poor service? Privacy concerns? These questions
    underlie the many reasons why I strongly supported the Commission's
    2015 Open Internet Order and continue to believe it provides the best
    legal framework to protect consumers, innovators and entrepreneurs.
    Protecting Consumer Privacy
        Ninety-one percent of Americans feel they have lost control of
    their information online, according to one report. This is why I
    supported the Commission's actions, consistent with the FTC's privacy
    framework, to empower consumers to make informed choices about their
    personal information, and give broadband providers the flexibility to
    comply with the rules in a manner that works for their company.
        I was deeply disappointed by the Chairman's decision to effectively
    gut one of those rules last week. The outcome of the decision is not
    relief from purported regulatory burdens. In fact, the providers who
    sought the stay of the privacy rules used the very text of the FCC's
    rule as the basis for their voluntary code of conduct. The real effect
    here is a lack of recourse for consumers when their personal
    information is compromised.
    USF Modernization
        Our Universal Service program is a four-legged stool, with four
    different programs that address four distinct goals working in concert
    to close the digital divide. Without Lifeline, for example, millions of
    Americans would be unable to afford the cost of voice service. And
    thankfully last year, the FCC modernized the Lifeline program for the
    21st century, to not only support broadband service but further combat
    fraud by beginning a process to fully take user verification out of the
    hands of service providers. We also expanded the program, allowing
    recipients of the Veterans Pension Benefit, among other programs, to
    access Lifeline service.
        But USF modernization cannot stop there. It means reforming our
    rural healthcare program so that the skilled nursing facilities that
    Congress explicitly included in the program, are not kept out by the
    current cap on funding. It also means reforming the contribution
    system, which is increasingly becoming a heavy tax on seniors, who can
    ill-afford to shoulder the burden of nationwide broadband deployment.
    Inmate Calling Reform
        The inmate calling regime is the greatest and most distressing form
    of injustice I have witnessed in my 18 years as an industry regulator.
    This past December, I embarked on a 24 day campaign to bring awareness
    to the benefits of inmate calling reform. The campaign also highlighted
    some of the egregious practices that keep the generational cycle of
    incarceration intact, break up families and marriages, and impose
    financial burdens on families that are least able to afford it.
        I applaud the leadership of Senators Booker and Duckworth, both of
    whom introduced legislation in the previous Congress to address inmate
    calling and video visitation issues. I look forward to working with all
    interested offices to tackle these important issues during the 115th
    Congress.
    Expanding Broadband Infrastructure Deployment
        In January, Chairman Pai announced the establishment of the
    Broadband Deployment Advisory Committee. I applaud him for focusing on
    bridging the deployment gap and share the vision of ubiquitous
    broadband for all Americans. Accordingly, I have supported the agency's
    continued focus on targeted spending of universal service dollars to
    deploy broadband, in the hope that the Congressional directive in
    Section 1 of the Communications Act will be realized sooner rather than
    later.
        Additionally, I remain supportive of legislative efforts to
    streamline the deployment of broadband. Among other actions, I am
    hopeful this Committee will consider the passage of the Broadband
    Conduit Deployment Act; reform of pole attachments; and the advancement
    of public-private, public-public, and private-private partnerships to
    assist with all aspects of the infrastructure puzzle and aggregate the
    demand for services where the economic case for build out is weak.
    Improving Broadband Data
        One area in which I believe we can all agree is the need for better
    broadband data. Nowhere is this clearer than in our recent efforts on
    the Mobility Fund, where the lack of good data could mean it will take
    longer to deliver on the program's stated goal of bringing connectivity
    to unserved communities. With improved data, we could better target our
    infrastructure efforts and improve the accuracy of our National
    Broadband Map.
        Additionally, it should be noted that the market has undergone
    significant consolidation since 2013, including transactions involving
    Charter and Time Warner Cable; Verizon and XO Communications;
    Windstream and Earthlink; as well as Centurylink and Level 3. Across
    multiple proceedings, industry has suggested updates to the Form 477
    process. I agree that it is time to collect better data, and I look
    forward to working with my colleagues to make this a reality.
    Process Reform
        In the first weeks of this new Administration, Chairman Pai has
    outlined a series of process reforms, many of which have been discussed
    by this Committee over the past several years. I would like to focus on
    one of these reforms that the Chairman has implemented at my
    suggestion: the provision of a public fact sheet for each of the
    Commission's meeting items. The reality is that most consumers do not
    have time to read through Commission items that can reach over 300
    pages. This simple step will enhance transparency and make it easier
    for the public to engage and understand the actions being taken by our
    agency.
        Unfortunately, some practices that have been the subject of past
    Committee inquiries about the use of delegated authority continue to
    concern me. In fact, just in the past month I have seen an FCC Office
    issue an Order inconsistent with its delegated authority, seen
    delegated authority used to resolve new and novel issues, and
    experienced delegated authority used as a weapon to force a rapid
    Commission vote on an issue of great significance.
    Digital Inclusion for the Modern Era
        Among the six pillars I outlined in our draft call to action plan
    was the need to promote a more diverse media landscape. While there has
    been much discussion about the elimination of the Commission's
    ownership rules, I believe the conversation must start by asking how we
    move the inclusion and opportunity needle for those seeking to fulfill
    the dream of owning and operating broadcast properties.
        To this end, I support reinstating an FCC Tax Certificate Program;
    working with the broadcast industry to start a pilot incubator program
    to aid new entrants or disadvantaged businesses; and increasing
    diversity both in front of and behind the camera.
        I also believe we must do more to enhance the voices of independent
    and diverse programmers outside the broadcast space. The Notice of
    Proposed Rulemaking (NPRM) on Independent Programming adopted by the
    Commission in September would achieve this goal by targeting two of the
    worst offending practices facing many independent video programmers:
    ``unconditional'' most favored nation (MFN) clauses and unreasonable
    alternative distribution method (ADM) provisions. I look forward to
    working with Chairman Pai to move to an Order that ensures independent
    and diverse voices have a place in a vibrant media landscape.
    Expanding Deployment of Mobile Broadband
        The next generation of wireless connectivity, or 5G, promises to
    fundamentally change the way we live, interact and engage with our
    communities. 5G technology promises to deliver speeds of up to 10
    gigabits per second with lower latency and greater capacity. This
    improved connectivity has the ability to redefine the industry across
    many different sectors including healthcare, transportation, energy,
    agriculture and public safety. In order to reap the benefits of 5G
    services, however, we need to not only have adequate spectrum, but the
    necessary infrastructure, such as small cells and distributed antenna
    systems (DAS), to deploy that spectrum.
        Last year, the FCC commenced a proceeding to seek public input on
    actions the Commission can take to expedite deployment of the
    infrastructure needed for next generation wireless services. We
    recognized the need for efficient and streamlined processing of siting
    applications as well as localities' interests in preserving the
    aesthetics of their communities and ensuring the safety of their
    citizens. Indeed, as I have said before, approving applications to site
    antennas and other infrastructure are difficult policy challenges for
    local governments. These challenges are even more acute in a 4G and 5G
    world, where the volume of siting applications has increased
    substantially. I am committed to engaging with stakeholders on this
    issue and examining the record developed through this proceeding.
        This proceeding notwithstanding, I believe the Commission has a
    unique role to play in facilitating discussions and dialogue between
    industry and local communities about the benefits and challenges of
    small cell deployment. My discussions with representatives from
    municipalities makes clear that a tailored educational campaign would
    be well received and highly effective in surmounting the challenges
    posed by infrastructure siting for next generation 5G services.
    Connect2Health
        As my staff and I visited many of your offices during recent weeks,
    we heard a common refrain when it comes to the importance of broadband-
    enabled healthcare, particularly in rural communities. With estimates
    suggesting that the United States will have a shortage of up to 90,000
    physicians by 2025, we have an opportunity through the use of
    technology to improve the quality of healthcare and reduce costs. This
    is an issue I am personally passionate about and I believe it should
    continue to be a priority for the Commission.
        One year ago, Chairman Wheeler circulated to his fellow
    Commissioners, a Public Notice that posed a series of questions about
    the intersection of broadband and health. While the notice failed to
    gain the necessary votes last year, I am grateful that this item
    remains on circulation. I look forward to working with the Chairman and
    Commissioner O'Rielly to see it adopted in the near future.
    Public Safety
        As reflected by the draft Next Generation 911 legislation that
    Ranking Member Nelson and Senator Klobuchar unveiled last week, and the
    Commission's actions over the years, there is a sustained commitment to
    promoting the deployment of NG 911 networks. The benefits of NG 911 are
    well documented: IP-based technology is more resilient and reliable
    than the legacy circuit switched system and will provide public safety
    professionals better tools to analyze and respond effectively to
    emergencies.
        While there has been a great deal of focus on how to help state and
    local public safety answering points (PSAPs) make the transition to NG
    911, surprisingly, there has been no similar focus on Federal PSAPs. In
    fact, we do not even know how many Federal agencies run PSAPs or how
    many Federal PSAPs there are. But I am happy to report that the DHS
    Emergency Communications Preparedness Center (ECPC)'s Federal 911 Focus
    Group is working to change this.
        The ECPC, the Federal interagency focal point for interoperable and
    operable communications coordination, is comprised of 14 Federal
    agencies, including DHS, DOD and the FCC. The 911 Focus Group is
    currently surveying Federal agencies to develop a comprehensive
    inventory of all Federal PSAPs.
        Preliminary findings highlight that many Federal PSAPs actually lag
    behind their state and local counterparts. Many of the PSAPs on
    military bases that we know about are using old technology, have
    limited capability to locate 911 callers on the base and do not support
    text-to-911. Indeed, they have not even begun to plan for the
    transition to NG 911.
        The keys to addressing this glaring problem are: awareness,
    coordination and integration. First, we need to make supporting the
    transition to NG 911 a priority across all Federal agencies that have
    PSAPs or support 911 operations. Second, Federal 911 and NG 911 efforts
    and budgets need to be coordinated across agencies so that efficiencies
    and economies of scale can be identified, as opposed to each individual
    agency operating in a silo. Finally, Federal agencies should coordinate
    and partner with their state and local 911 counterparts in the areas
    they serve. In those states that have already launched NG 911
    initiatives, Federal agencies should be committing resources to the
    initiative rather than playing catch-up. And in states that have not
    yet started the NG 911 transition or are in the planning stages,
    Federal agencies should be proactive in the planning process.
    Enhancing Consumer Protection
        In a Consumer Reports survey last year of more than 172,000
    subscribers, only about one-third of those surveyed said they are
    ``very or completely satisfied'' with their home internet, pay TV or
    telephone service. As a Commissioner at the agency responsible for
    overseeing the communications sector, this is highly alarming.
        Last Fall, the FCC's Consumer Advisory Committee ``No Surprises
    Task Force'' came up with a series of recommendations to improve
    transparency and disclosure of ``below the line'' fees, so that when
    consumers sign up for service, either online or in-store, they will not
    have to wait for their first bill to learn what their service truly
    costs. Implementing these recommendations would be a huge win for
    consumers and an opportunity for providers to show how committed they
    are to putting consumers first.
        Finally, to address the practice of mandatory arbitration, Senator
    Franken and I authored a joint op-ed this past October. Simply put, we
    believe you should not have to give up your day in court when you sign
    up for telecommunications services. Whether it is by legislation or
    regulation, I believe this consumer-unfriendly practice should be
    eliminated.
    Conclusion
        Once again, Chairman Thune, Ranking Member Nelson and Members of
    the Committee, I want to thank you for the opportunity to present my
    testimony today and look forward to answering any questions you may
    have. By working collaboratively, we can ensure that our communications
    sector remains the envy of the world.

        The Chairman. Thank you, Commissioner Clyburn.
        Commissioner O'Rielly?

       STATEMENT OF HON. MICHAEL O'RIELLY, COMMISSIONER, FEDERAL
                       COMMUNICATIONS COMMISSION

        Commissioner O'Rielly. Thank you, Chairman Thune, Ranking
    Member Nelson, and members of the Committee, for the
    opportunity to appear before this distinguished body to address
    and discuss the important work occurring at the Federal
    Communications Commission. I would like to raise a handful of
    issues to your attention and stand ready to answer any
    questions you may have.
        Last November's election led to a change in leadership at
    the Commission. There is a breath of fresh air and a new spirit
    of cooperation not present in the last Commission. Let me
    acknowledge and applaud Chairman Pai's immediate focus on
    improving our internal workings and procedures, which has long
    been a cause of mine.
        In approximately five short weeks, the new Chairman has
    ushered in reforms to improve the efficiency, transparency, and
    accountability of the Commission. From fixing non-existent
    post-adoption editorial privileges to publicly releasing the
    text of documents at the same time they are shared with
    Commissioners to ending the practice of providing outside
    parties with information before Commissioners were in the loop,
    process reform has been a necessary and important mark for the
    Chairman. Hopefully, there is more to come, as I have a number
    of ideas for further reforms, including changes to our
    delegated authority process and our scope of information and
    data collections.
        On another topic, it is discouraging to admit that a core
    function of the Commission, protecting the integrity of
    Commission-granted spectrum rights, is not being sufficiently
    achieved as it pertains to pirate radio stations. Today, these
    squatters are infecting the radio band at the expense of
    consumer services, including emergency communications and the
    functional and financial stability of licensed radio stations.
    Thankfully, I believe the situation is fixable and preventable.
    It will certainly take sufficient enforcement commitment and
    diligence as well as some new limited and targeted statutory
    authority dedicated to address pirate radio.
        In terms of broadband availability, it is a high priority
    for me to ensure that broadband access is reasonably available
    to all Americans. To facilitate this, I have been intensely
    involved in completing the remaining pieces of our high-cost
    program, or Connect America Fund.
        At the same time, standing in the way of greater internet
    access nationwide are barriers imposed by state, local, and
    tribal entities. These range from maintaining difficult
    permitting and approval processes, attempts to extract enormous
    sums for tower siting and access to rights-of-way, and efforts
    to establish government sponsored networks accompanied by
    favorable land tax and approval procedures. While a vast number
    of communities see the benefit of broadband deployment and
    welcome providers seeking to serve their citizens, there are
    bad actors that will likely require preemptive measures by the
    Commission.
        Last, having just returned from Mobile World Congress in
    Barcelona, I will share with you that a handful of my
    conversations with international representatives suggest
    increased concern that international governments via different
    forms continue to seek a greater role in internet oversight and
    policy setting. I believe that the possible expansion of
    government interference in internet governance and activities
    remain one of the greatest threats to long-term sustainability
    and growth of the internet.
        Thank you again for the opportunity to testify, and I look
    forward to your questions.
        Thank you.
        [The prepared statement of Commissioner O'Rielly follows:]

          Prepared Statement of Hon. Michael O'Rielly, Commissioner,
                       Federal Communications Commission
        Thank you, Chairman Thune, Ranking Member Nelson, and Members of
    the Committee for the opportunity to appear before this distinguished
    body to discuss the important work occurring at the Federal
    Communications Commission.
        I would like to raise a handful of seemingly unrelated issues to
    your attention, and I would be pleased to answer any questions you may
    have.
    Process Reform
        Last November's election led to a change in leadership at the
    Commission. While I miss working with two of my since departed
    colleagues, there is breath of fresh air and a new spirit of
    cooperation not present in the last Commission. It is certainly early,
    but the remaining three commissioners seem to be of the mind that if we
    disagree in some capacity on an item, there is willingness to move on
    to the next one without laboring in the past, which I think was
    noticeable at our last Commission Open Meeting.
        Let me acknowledge and applaud Chairman Pai's immediate focus on
    improving our internal workings and procedures, which has long been a
    cause of mine. In approximately five short weeks, the new Chairman has
    ushered in reforms to improve the efficiency, transparency, and
    accountability of the Commission. From fixing non-existent post-
    adoption editorial privileges to publicly releasing the text of
    documents at the same time they are shared with Commissioners to ending
    the practice of providing outside parties with information before
    Commissioners were in the loop, process reform has been a necessary and
    important mark for the Chairman. Ultimately, I believe the ideas and
    reforms adopted to date, and potentially additional ones I have
    proposed, do not undermine the authority or ability of the Chairman to
    set and execute the overall Commission agenda. Hopefully, there is more
    to come, as I have a number of ideas for further reform, including
    changes to our delegated authority process and the scope of our
    information and data collections.
        On this note, let me reiterate the need to conduct sound cost-
    benefit analyses as part of the Commission's consideration of new
    regulations on applicable industries. Too often under the prior
    Commission leadership, sufficient work was not done, certainly prior to
    votes by Commissioners, to calculate the particular costs that new
    burdens or obligations would impose on regulated entities. At the same
    time, past items have included vague or illusionary benefits of these
    new regulatory burdens. Together, the Commission lacked a key
    component, that I see as necessary, for determining whether a proposal
    is in the public interest. While it may take some time to fix this
    situation, including centralizing and creating a new Bureau of
    Economics, I remain convinced that it is a necessary and appropriate
    change to our operating procedures.
    Pirate Radio
        It is discouraging to admit that a core function of the
    Commission--protecting the integrity of Commission-granted spectrum
    rights--is not being sufficiently achieved as it pertains to pirate
    radio ``stations.'' By illegally broadcasting with makeshift equipment
    and a laptop, these stations are sprouting up and causing harm to
    consumers and the industry. Today, these squatters are infecting the
    radio band at the expense of consumer services, including emergency
    communications and the financial stability of licensed radio stations.
    To put this in perspective, I recently learned from the Massachusetts
    Broadcasting Association that they previously found 24 pirates
    operating in one of their markets and the problem has only increased
    since the last examination. While this issue mainly affects four to
    five larger East Coast radio markets (e.g., Boston, Miami, New Jersey,
    New York), failure to properly address it highlights a deficiency in
    the Commission's enforcement tools and undermines our overall
    creditability.
        Thankfully, I believe that this situation is fixable and
    preventable. It will certainly take sufficient enforcement commitment
    and diligence, which I think exists from the personnel in our field
    offices and the addition of our new ``tiger teams.'' At the same time,
    I humbly suggest that the Commission could use some limited and
    targeted statutory authority dedicated to address pirate radio.
    Specifically, I propose that the Commission be able to seize equipment
    found in common areas that is broadcasting illegally in the radio band.
    In addition, our current fines should be increased, and some ability to
    impose penalties on those that directly and intentionally aid pirate
    stations could be helpful. While I would have concern if this authority
    were applied across the board, in this instance, I believe it would
    help minimize our current whack-a-mole approach that has proven less
    than effective.
    Infrastructure
        It is a high priority for me to ensure that broadband access is
    reasonably available to all Americans. To facilitate this, I have been
    intensely involved in completing the remaining pieces of our high-cost
    program, or Connect America Fund (CAF). The CAF is a $4.5 billion
    annual subsidy program designed to address the difficult economics of
    serving those locations deemed high cost and extremely high cost. This
    work includes last year's rate-of-return reforms to permit and fund
    standalone broadband, the two targeted programs specific to Alaska, the
    recent creation of rules for the Mobility Fund Phase II, and the
    upcoming CAF Phase II reverse auction. While I have not agreed with
    each and every decision--particularly those that may lead to
    inefficiencies or harm to non-targeted individuals or communities--I am
    committed to seeing these elements of the program through in a timely
    manner. Having all of those pieces in place seems to be the only way
    the Commission can finally make effective the nascent Remote Areas Fund
    to address the most difficult areas to bring service.
        At the same time, standing in the way of greater Internet access
    nationwide are barriers imposed by state, local, and tribal entities.
    These range from maintaining difficult permitting and approval
    processes, attempts to extract enormous sums for tower siting and
    access to rights-of-ways, and efforts to establish government sponsored
    networks accompanied by favorable land, tax, and approval procedures.
    While the vast number of communities see the benefit of broadband
    deployment and welcome providers seeking to serve their citizens, there
    are bad actors that will likely require preemptive measures by the
    Commission. This problem will become even more acute as providers seek
    to deploy the next generation, or 5G wireless services, that will bring
    greater capacity, higher speeds and lower latency, but will also
    require many more wireless tower and antenna siting approvals. I
    realize that preempting local community decisions is a difficult topic
    to contemplate, but it has become necessary and appropriate for the
    Commission to exercise authority provided by Congress to address this
    situation.
        On a related note, I know that there has been and will be
    considerable debate over whether to include new Federal broadband
    spending in any larger infrastructure legislation. While this is a
    matter in the purview of Congress, I would like to add my thoughts to
    the extent that it is decided to do so. If new Federal funds are made
    available to expand broadband availability, it would be my opinion and
    advice that any such funds be allocated on the condition that they be
    disbursed via the Commission's CAF program, rather than alternatives.
    The CAF is by no means perfect, but it is the best mechanism, compared
    to any others, to minimize overbuilding, inefficiencies and waste, and
    it could be quickly expanded to reach additional unserved communities.
    International Internet Freedoms
        Having just returned from the Mobile World Congress in Barcelona, I
    will share with you that a handful of my conversations with
    international representatives suggest increased concern that
    international governments, via different forums, continue to seek a
    greater role in Internet oversight and policy setting. That should be
    viewed as deeply troubling by all individuals that support and believe
    in an Internet relatively free from government control, and
    particularly by this Committee given its work to try to prevent ICANN
    from abusing its role post IANA conversion. I believe that the possible
    expansion of governmental interference in Internet governance and
    activities remains one of the greatest threats to its long-term
    sustainability and growth.
        I intend to be active in the international events related to the
    Commission's functions and would be pleased to keep the Committee
    informed as circumstances warrant. Moreover, may I suggest that the
    Senate consider this threat as part of any nomination process to fill
    related positions within the new Administration, as well as staying in
    close contact with related offices within the Departments of State and
    Commerce.
                                     * * *
        Thank you again for the opportunity to testify this morning.

        The Chairman. Thank you, Commissioner O'Rielly.
        We have a lot of members here today, and I think a lot of
    members will want to ask questions. So I'm going to ask that
    we, as closely as possible, adhere to the 5-minute rule so we
    can get everybody in, and we'll try and enforce that more
    closely with the gavel.
        Mr. Chairman, former FCC Chairman Reed Hundt, who served
    during President Clinton's term, said that you're off to a--
    actually off to a very good start. ``By all accounts, he has
    set a very constructive tone with all the bureaus in the
    agency. He's met with them all individually. He has been very
    open, and everybody is reacting very positively.''
        The Office of Personnel Management measures what it calls
    global satisfaction, which is an index based upon employee
    satisfaction with their jobs and organization plus their
    willingness to recommend their organization as a good place to
    work. From 2013 to 2015, global satisfaction at the FCC fell
    more than any other department or large agency in the entire
    Federal Government, a lot more, and this was during a time when
    governmentwide global satisfaction actually increased. This is
    a very disturbing development because poor morale leads to
    ineffective organizations.
        I know this is something that you've inherited. But will
    you, nevertheless, commit to doing your best to address this
    very serious problem?
        Chairman Pai. Yes, Mr. Chairman. Both because I'm a
    Chairman and because I spent years as a former career staffer
    at the agency, I take this issue extremely seriously and I'm
    committed to doing whatever we can to provide an atmosphere of
    respect and collegiality among the professional staff.
        The Chairman. Commissioner Clyburn, Commission rules
    require a minimum quorum in order for the agency to be able to
    fully function without limitations. It has been suggested that
    you may have the ability to deny the FCC that quorum by either
    leaving before your term expires at the end of June or refusing
    to attend open meetings. Will you commit today to serving out
    your full term and to doing your part as a Senate confirmed
    member of the Commission to ensure that it maintains a quorum?
        Commissioner Clyburn. Mr. Chairman, what you read has never
    been suggested or hinted by me. I have no plan to do anything
    that would jeopardize the functionality of this institution
    that I love so much.
        The Chairman. Thank you.
        Chairman Pai, as part of the Universal Service Reform in
    2011, the FCC established a minimum price that telephone
    companies must charge their customers for local telephone
    service or risk losing universal service support. This is
    what's known as the rate floor. Although the Commission granted
    limited relief in 2014, the rate floor has continued to
    increase every year, and there appears to have been little
    effort to assess the impact these increases are having on
    consumers and service providers in rural America.
        Do you have any concerns about the ever-increasing rate
    floor, and is this something that you expect the Commission
    will examine?
        Chairman Pai. Thank you for the question, Mr. Chairman. I
    have substantial concerns about the rate floor, and I was
    outspoken about it several years ago, because it struck me as
    odd that, under Commission compulsion, rural carriers were
    forced to raise the telephone rates that rural consumers, who
    have relatively less median income compared to urban consumers,
    would have to pay to get telephone service. So that's something
    I'm committed to working with our bureau staff about, and I'm
    happy to work with you and your staff as well to make sure that
    we get it right.
        The Chairman. As you know, there has been a lot of
    discussion about the FCC's Broadband Privacy Order and what
    were to happen if it suddenly went away. Is it true that
    consumers would be left unprotected, or would the FCC still be
    obligated to police broadband privacy practices under Section
    222 of the Communications Act?
        Chairman Pai. Mr. Chairman, that's correct. The carriers
    would still have their obligations under Section 222 in
    addition to other Federal and state privacy, data security, and
    breach notification requirements.
        The Chairman. Commissioner O'Rielly, you've said that you
    are comfortable with the FCC pushing communities to allow
    timely installation of 5G equipment. What tools are available
    to the Commission that could be used to help speed deployment
    of 5G and other next-generation gigabit wireless networks?
        Commissioner O'Rielly. Well, I think working with the
    Chairman--we've talked about the good actors and the steps that
    they have taken, and there's model code we've talked about.
    There are a number of different positive things, but I do
    believe that at some point we may have to get into--use
    authority that has been provided by the Congress to preempt
    some bad actor communities that are preventing broadband from
    being expanded throughout our nation.
        The Chairman. I think that's good for me for now.
        I'll hand it off to you, Senator Nelson, and we'll keep
    this thing moving along.
        Senator Nelson. Mr. Chairman, I'm going to let our guys go
    first, and I'll do cleanup. So I'll flip it to Senator Schatz.
    But I just want to make sure that you all understand that E-
    Rate, which was set up, and it was supposed to be looked at in
    2018, is so essential broadband to our schools and our
    libraries. And I would expect the FCC not to make any major
    changes on this vital program for students until after you
    evaluate it pursuant to the way it was set up in 2018.
        Thank you.
        The Chairman. Senator Schatz?

                    STATEMENT OF HON. BRIAN SCHATZ,
                        U.S. SENATOR FROM HAWAII

        Senator Schatz. Thank you, Mr. Chairman.
        Thank you, Commissioner Pai. Congratulations on your re-
    nomination. But many of us were disappointed that the President
    pulled the re-nomination of Jessica Rosenworcel last week. The
    Senate should have confirmed her to a term last year, and I'm
    counting on everyone to honor their original commitment. I
    certainly hope that we can get back to the long tradition of
    pairing these nominees so that both Jessica and Chairman Pai
    can move through the Senate floor quickly.
        This is a question for all the commissioners.
    Congratulations to all of you for overseeing a successful
    incentive auction, the first one of its kind. We all want the
    faster Internet service and better coverage that will result
    from the auction. But I have concerns that consumers could lose
    access to their local broadcast stations if channels are forced
    off the air in the repacking process. The three of you
    previously said that if the stations cannot repack in the 39-
    month timeframe, they would not be forced off the air.
        A yes or no question for each of you, starting with
    Commissioner Clyburn. Would all of you support legislative
    efforts to make sure that that does not happen?
        Commissioner Clyburn. I would support any effort that would
    complement our goal of ensuring that no consumer is negatively
    harmed.
        Senator Schatz. Thank you.
        Chairman Pai. Senator, I agree with Commissioner Clyburn.
        Commissioner O'Rielly. Without being insulting, depending
    on how it read, I would agree.
        Senator Schatz. Thank you.
        Chairman Pai, is the FCC going to review the AT&T-Time
    Warner merger?
        Chairman Pai. Senator, as I understand how the parties have
    structured the transaction, there is no license that would be
    transferred from one party to the other, which, as you know, is
    the jurisdictional hook under the Communications Act for us to
    apply what is known as the public interest standard. And
    insofar as that remains the case, my belief is that the FCC
    would not have the legal authority to review that transaction.
        Senator Schatz. Have you asked the FCC staff to conduct an
    independent legal analysis to confirm that the FCC has no role?
        Chairman Pai. I have not at the current time.
        Senator Schatz. Would you be willing to do so and share it
    with the Committee?
        Chairman Pai. I would be happy to do that, Senator.
        Senator Schatz. Thank you. And a question about Net
    Neutrality in the context of this merger--if you move forward
    with repeal of the Open Internet Order and we fail to pass
    legislation, and yet the Comcast merger had Net Neutrality
    requirements conditions in it, how do we ensure a level playing
    field with the AT&T merger not having any conditions either in
    rural or as a condition of the approval of the merger, and yet
    one of its major competitors will still be bound by that
    original requirement?
        Chairman Pai. Senator, there are a number of hypotheticals
    in there that I need to sort out. But I think the basic answer
    is that we want to act within our authority, of course, to
    protect the public interest, and in the context of a
    transaction, that simply depends on whether or not the transfer
    of a license is in the public interest. With respect to
    transactions passed, it involves the question of the
    enforcement of conditions that were agreed upon by prior
    Commissions. And in the general rulemaking process, of course,
    there are other factors that go into the analysis. I can't give
    you a simple answer.
        Senator Schatz. But the practical impact will be that there
    are two giants, one that has to abide by Net Neutrality and one
    that doesn't.
        Chairman Pai. Right.
        Senator Schatz. Chairman Pai, I want to follow up on a
    private conversation that we've had regarding the Commission
    itself, and it's something I've talked to actually all three of
    you about. In one of your previous oversight hearings, you
    criticized the previous Chairman for the large number of party
    line votes under his tenure, and you said, ``It wasn't always
    this way. It was once understood that no political party had a
    monopoly on wisdom, and we recognize that communications issues
    aren't necessarily partisan issues.'' And yet for the first two
    issues that you've tackled, it has been two to one.
        I understand that you have a different perspective and
    you're in the business of implementing your point of view. But
    what assurances can you give the Committee, the
    telecommunications community, the Commission itself, its staff,
    your Democratic commissioner of your commitment to try to get
    to five-zero votes whenever possible?
        Chairman Pai. Thank you for the question, Senator. I very
    much appreciate your perspective. The top priority that I
    listed in my testimony today and in my comments to the career
    staff on my second day in office was that I wanted to close the
    digital divide, and two of the topics that have been sitting on
    the shelf for a while involve the Mobility Fund, bringing
    wireless service to parts of the country that didn't have it,
    and the Connect America Fund, giving fixed broadband options to
    unserved Americans.
        My explicit directions to my staff and to the bureau were
    to work with Commissioner Clyburn, to hear her out and try to
    accommodate her concerns, and I will certainly let her speak
    for herself. But I would like to think that the end product,
    which we validated on February 23, was a bipartisan one that
    will deliver digital opportunity to millions of Americans.
        Now, in terms of process reform as well, she suggested,
    ``Well, I understand, Ajit, that you want to push out these
    items once we tee them up for Commission consideration at a
    meeting. What about doing a one-page fact sheet to make it
    easier for people to understand?'' And I said, ``You know what?
    That's absolutely right. Let's do it.'' I implemented it
    immediately. That's the spirit I want to carry with me
    throughout the chairmanship to the best ability that I have.
        Senator Schatz. Thank you very much.
        The Chairman. Thank you, Senator Schatz.
        Senator Wicker?

                  STATEMENT OF HON. ROGER F. WICKER,
                     U.S. SENATOR FROM MISSISSIPPI

        Senator Wicker. Thank you very much, and thank you all for
    your testimony.
        Chairman Pai, let's talk about bringing broadband to
    economically challenged areas, and this is certainly something
    that Commissioner Clyburn emphasized in her prepared testimony.
    You were successful in moving forward two major Universal
    Service Fund items, including Phase 2 of the Mobility Fund.
    These will undoubtedly help bring broadband services to rural
    and hard to reach areas.
        You have four major initiatives in this regard, I
    understand. So tell us about your plan to emphasize areas where
    average household income falls below 75 percent of the national
    median, requiring states and localities to have deployment-
    friendly policies, and I think you used that term in your
    testimony, also. And then tell about tax incentives and zones
    that you might designate for the use of tax credits.
        Chairman Pai. Thank you, Senator, for the question. It is
    something I'm really passionate about. I outlined in September
    what I hoped would be a bipartisan blueprint for action
    regardless of who assumed leadership of the Commission,
    precisely because I thought that these ideas knew no partisan
    angle or party affiliation.
        One of the key proposals which you mentioned was my
    proposal for Congress to give us the authority to set up what
    I've called gigabit opportunity zones, and the idea here was
    that you would create a geographic area as small as a city
    block in an urban environment or as large as a rural county in
    which the median income of citizens within that area was 75
    percent or less of the national average income. And the idea
    would be to provide tax incentives to providers to build out in
    those areas. Part of that also would be a requirement that
    states and localities adopt broadband-friendly policies so that
    the deployment was eased in terms of the access to rights-of-
    way and pole attachments and the like.
        Additionally, to make sure that entrepreneurs can take
    advantage of those networks, my idea was to provide some relief
    for the employer's side of the payroll taxes for new companies
    who want to set up businesses in those areas. That way, people
    who live in those areas who want to create jobs in those areas
    would have a greater incentive to do so.
        It was drawn from the spirit of former Secretary Jack Kemp
    of the Housing and Urban Development. My thinking was why don't
    we update for the 21st century his idea about enterprise zones,
    and this could give people who are in poverty or otherwise
    don't have economic opportunity a greater chance to achieve
    prosperity in the digital area, and I'm hopeful that working
    with Members of Congress, we can do that.
        Senator Wicker. This is going to require legislation.
        Chairman Pai. That is correct, sir.
        Senator Wicker. Commissioner Clyburn, what do you think
    about such legislation?
        Commissioner Clyburn. If such legislation allows us to do
    what we do best, if such legislation also recognizes that
    affordability is a factor when it comes to adoption of
    services. So if we look at all of the universal principles and
    tools in our arsenal, I think it would be a good series of
    steps forward in terms of bridging those gaps that currently
    exist. But affordability has to be a part of the conversation.
        Senator Wicker. Chairman Pai, Commissioner Clyburn says
    there is an affordability gap. Do you agree with this, and what
    would you do about it?
        Chairman Pai. I do agree, which is part of the reason in my
    response to Chairman Thune that I expressed so much concern
    about the rate floor, because that actually involves the FCC
    mandating that companies increase the rates that rural
    customers have to pay. Here, too, I think we need to do more to
    ensure that consumers have competition, choice, and affordable
    access to the internet, and that's something I'm committed to
    working with her and with you about.
        Senator Wicker. The distinguished Ranking Member wants the
    Commission to be pro-consumer. I think we all agree with that.
    It seems to me that reversing the Net Neutrality rule with
    regard to free data and zero rating has turned out to be pro-
    consumer in that not long after you terminated the
    investigation into these practices, we saw a series of new pro-
    consumer unlimited data offerings come into the market. Do you
    think the new flood of opportunities came as a direct result of
    your action in this regard?
        Chairman Pai. Senator, I don't know if it was a direct
    result, but I do think it simply confirmed the wisdom of our
    approach, which is to recognize it's a highly competitive
    marketplace and that wireless carriers have a strong incentive
    to compete for the consumers' attention, and as a result, now
    all four national wireless carriers are offering new or
    expanded unlimited data plans, and that's a great thing for
    consumers.
        Senator Wicker. It turns out the pubic really liked that.
        Chairman Pai. Correct, sir.
        Senator Wicker. At least so far. Thank you very much.
        Thank you, Mr. Chairman.
        The Chairman. Thank you, Senator Wicker.
        Senator Booker?

                    STATEMENT OF HON. CORY BOOKER,
                      U.S. SENATOR FROM NEW JERSEY

        Senator Booker. Thank you very much, Mr. Chairman. Just on
    the point that was just being made, and before I get into my
    questioning, I just want to reaffirm that I'm a firm--have a
    firm commitment, an unwavering commitment, to the ideals of Net
    Neutrality and the 2015 FCC Net Neutrality rules that were put
    into place which are now the law of the land. They were upheld
    now in court, and a lot of doom and gloom was predicted if this
    was to happen.
        But, clearly, the sky has not fallen. Businesses, frankly,
    have continued to innovate in this space. We're seeing a lot of
    very positive results, and I'm really hoping that there is a
    commitment to net neutrality here, not just in the Committee,
    but also amongst the commissioners. But, obviously, we'll have
    time to talk about that.
        I just want to jump into really another area of bipartisan
    encouragement--is just this idea to broadband access, which is,
    I think, so important for when it comes to creating a robust
    access to education, to telehealth, you name it. This, to me,
    is something of great urgency.
        As most people know, I have a big concern about the way the
    criminal justice system is operating that has profoundly become
    a tool to create disparities in our country, and these
    disparities are stunning. Just, for example, there's no
    difference between blacks and whites in America for using drugs
    or even selling drugs, but African Americans are about 3.7
    times more likely to be arrested for those nonviolent drug
    crimes.
        As a result of that, you have situations like my state,
    where African Americans are 14 percent of the state's
    population but over 60 percent of the prison population. Our
    prisons are full of people that are disproportionately people
    of color, disproportionately poor people, in general,
    disproportionately people with mental health challenges,
    victims of sexual abuse, and I'm just fiercely committed to
    this idea of trying to make our society fairer for all
    Americans, equal justice under the law, and also to empower
    people who are affected by the prison population, by our mass
    incarceration problem in America, so that when they're paying
    their debt to society, they can come out and be successful.
        All the data is showing that when people are in prison--and
    the wardens, the Federal wardens I sat and met with, talked
    about the urgency to keep a robust connection to family ties.
    That's why I've been very committed to trying to do everything
    to make that robust. We have 2.7 million children who right now
    are separated from an incarcerated parent. They're facing
    challenges growing up as well, and those links and those
    connections are vital for the children, for those families, and
    for the rehabilitation of a person who is incarcerated.
        So this issue of affordable access to calls is not just
    about a guy in prison making a call. This goes fundamentally to
    a core priority that all of us have, right and left, to making
    sure we drive down recidivism rates and support families. Video
    visitation right now is on the rise, which is, again, something
    that I've talked to numerous wardens who think--and people in
    the Bureau of Prisons who think this is really strong.
        So, Commissioner Clyburn, can you just let me know that if
    the FCC loses this case that right now is in court, what are
    the potential consequences for the issues that I'm passionate
    with and I know people on both sides of the aisle are
    passionate about?
        Commissioner Clyburn. I have only one word for that. It
    would be devastating. It would set us back in terms of the
    efforts that we've attempted to do in terms of closing that
    gap, you know, and keeping families together, to ensure that
    more than 39 percent of the population impacted--that they can
    keep in touch. The number hovers around 38 percent or 39
    percent of people keeping in touch because they can't afford
    to.
        And so where it's affordable, we've seen the conversations
    spike, and we have seen families when--there are 700,000
    inmates that are released back into society every year. If the
    majority of them go home as strangers because they didn't have
    the opportunity to speak, then by the time 5 years roll around,
    75 percent of them are back in. This is a family issue. This is
    a criminal justice issue. It cannot be decoupled, and providing
    just, reasonable, and fair rates to families pays dividends to
    all of us.
        Senator Booker. And I'll ask some other questions I had
    about the Lifeline broadband provider issues that I've written
    to you about and hope we can talk about. But I just would love
    for you in the last seconds I have to respond to Commissioner
    Clyburn's sense of urgency as well as mine.
        Chairman Pai. Thank you for the question, Senator, and I
    appreciate Commissioner Clyburn's perspective on this as well.
    I said when the FCC teed up this proceeding that it took too
    long. The petitioners should not have had to wait almost a
    decade for the FCC to finally heed their call. I also suggested
    early on that I thought this marketplace was broken. This is
    not a normally functioning marketplace like the wireless
    marketplace we just discussed in the exchange with Senator
    Wicker.
        So I agree that the Commission has authority to adopt
    certain rate caps for interstate rates. I agree that the
    Commission has authority to regulate ancillary fees and some of
    the other subsidiary issues. There's a question, obviously,
    that the D.C. Circuit is highlighted for us in terms of the
    stays of the various orders the FCC has had, and we're working
    through those. But my commitment to you, regardless of how the
    case goes, is that we want to make sure the FCC does everything
    within its legal authority to fix this problem, and we would be
    happy to work with you on that.
        Senator Booker. Thank you, Mr. Chairman.
        The Chairman. Thank you, Senator Booker.
        Senator Fischer?

                    STATEMENT OF HON. DEB FISCHER,
                       U.S. SENATOR FROM NEBRASKA

        Senator Fischer. Thank you, Mr. Chairman.
        And thank you to all the members of the panel for the work
    that you did last year on the rate-of-return reform orders. I
    have heard from a number of Nebraska companies who opted into
    the cost model, and they were pleased with the results, and I
    appreciate your efforts on that. I continue, though, to hear
    concerns from Nebraska carriers that they are not permitted to
    get universal service support if they provide standalone
    broadband service, or that they must charge their customers
    hundreds of dollars a month to recover their costs for
    standalone broadband.
        So, Mr. Chairman, do you have any thoughts on ways that we
    can solve this problem so that rural customers have the option
    to buy affordable standalone broadband service?
        Chairman Pai. Thank you for the question, Senator. I've
    seen the promise of standalone service for myself in places
    like Diller, Nebraska, so I very much appreciate it. It also
    feeds into the affordability question that we were just talking
    about a little bit earlier. This is precisely the reason why 2
    years ago, I put on the table a very simple public one-page
    plan to allow rural carriers to offer standalone broadband
    service.
        My concern with the rate of return reform proposed last
    year is that for carriers to be able to calculate how much
    support they would get for standalone service, they have to
    jump through 11 different hoops. They're quite technical and
    complicated, and at the end of the day, they don't necessarily
    yield enough funding to make standalone broadband service
    either a viable proposition for them to offer or for consumers
    to accept.
        So my commitment to you is to working with you and others
    who are interested in this topic to make sure that we make this
    regulatory system more streamlined and more efficient to allow
    carriers to offer standalone service.
        Senator Fischer. Thank you.
        Commissioner O'Rielly?
        Commissioner O'Rielly. I'm a little defensive, because I
    spent a great deal of time on rate-of-return issues.
        Senator Fischer. And you have been to Nebraska.
        Commissioner O'Rielly. I have--many of the states. But to
    the point--and I appreciate the desire to be simplified. When
    we talked to and worked with closely the carriers, they
    preferred a model that wasn't as simplified. So we had a choice
    to go in one direction that would have been much easier, and
    they preferred another model that we were able to come to
    agreement about.
        Your point is well taken in terms of is it available
    today--standalone broadband. That is in the hands of the
    carriers themselves. I know in meeting with--not your state,
    but in other states--the carriers have said, ``It doesn't
    matter if you pass this or what the changes are, I'm never
    going to split off the offering of a voice product from
    standalone broadband because I'm making too much money off
    that.'' So we don't have a----
        Senator Fischer. I have carriers who want to be able to
    offer that standalone broadband service and not be penalized
    for it.
        Commissioner O'Rielly. Right. They are provided the
    subsidies under the mechanisms that we designed, so they are
    not penalized for offering that product compared to a bundled
    product today.
        Senator Fischer. As long as we can make sure that
    customers, the consumers out there in rural areas, have that
    available to them without it costing hundreds of dollars a
    month.
        Commissioner O'Rielly. Right. We had to find the right
    price point of how much we could afford to subsidize in terms
    of our overall budget. So that was an agreement we came to with
    all the carriers and found--what we found was a rather happy
    place.
        Senator Fischer. Chairman Pai you mentioned streamlining. I
    appreciate your willingness to streamline regulations and
    processes so that we can encourage innovation. Last week, we
    had a Full Committee hearing on infrastructure deployment, and
    I asked Shirley Bloomfield about the broadband funds maintained
    by the FCC and whether it's necessary to maintain the number of
    programs that are out there, not just under you folks, but also
    Department of Commerce, Department of Agriculture and there's a
    lot of funding that's available. What I'm hoping to do is look
    at encouraging broadband deployment, but not duplicate efforts.
        Do you think that we can streamline programs out there,
    whether it's with the FCC or other agencies, so that we can
    avoid the duplication of that funding and make sure that we
    have existing networks that are needed but not overbilled?
        Chairman Pai. Thanks for the question, Senator. Obviously,
    I don't presuppose to tell Congress how it should structure all
    these programs. But I do think it would be helpful to unify
    them or at least streamline them to some extent.
        I recall early on in my tenure doing a town hall meeting in
    Parsons, Kansas, my hometown, with Senator Moran, where a
    number of carriers told us, ``Well, on one hand, we have a line
    of credit that's outstanding from the Department of
    Agriculture. On the other hand, we're not taking it because the
    FCC is telling us that if we do, there are going to be very
    significant regulatory restrictions on how we spend it and the
    like.''
        It occurred to me that if we had a unified system that
    would give greater clarity to the recipients, allow Congress to
    better oversee how we're spending that money, it could be
    better for everybody at the end of the day. So I hope that's
    something that Congress will take up.
        Senator Fischer. Thank you very much.
        Thank you, Mr. Chairman.
        The Chairman. Thank you, Senator Fischer.
        Senator Udall?

                     STATEMENT OF HON. TOM UDALL,
                      U.S. SENATOR FROM NEW MEXICO

        Senator Udall. Thank you very much, Chairman Thune.
        Congratulations, Chairman Pai, on becoming Chairman.
        Chairman Pai. Thank you, Senator.
        Senator Udall. While we may disagree on some issues such as
    Net Neutrality, I think we have a shared goal of extending
    modern communications access to all Americans. That must
    include Native Americans who face a terrible digital divide on
    tribal lands, and I know Commissioner Clyburn has seen that
    firsthand in my state.
        Today, I want to ask you about the President's open
    hostility toward media outlets, that many of those media
    outlets have business before the FCC, and how you intend to
    lead the FCC in this climate. This could directly affect
    matters before your agency and the First Amendment issues that
    you have been very outspoken on.
        Your official FCC biography states that you have been an
    outspoken defender of First Amendment freedoms. It describes
    your advocacy in 2014 that helped scrap a proposed study of
    barriers to entry into the media marketplace. And in an op-ed,
    you wrote, and I quote, ``The government has no place
    pressuring media organizations into covering certain stories.''
        In response to an interview question last year about
    whether there is a, quote, ``role for the FCC to play in
    keeping the political elite from trying to suppress Trump
    supporters,'' you replied, ``Certainly, I think one aspect of
    it is the FCC using the bully pulpit that it has to continue
    advocating for free speech.'' And you added, and I quote, ``I
    would hope whoever the President is, Americans would return to
    the tradition that we've had of respectful and robust public
    debate. That's something becoming increasingly rare,'' and end
    quote there.
        Today, President Trump is using bully tactics to try to
    intimidate the media. He has even declared certain media
    outlets--and I quote--he called media outlets ``the enemy of
    the American people.'' His Press Secretary, Sean Spicer, took
    the unusual step of barring some journalists from attending his
    daily press briefings.
        Chairman Pai, many news organizations or their parent
    companies have business dealings with the FCC, from regulatory
    matters to potential merger review. So I'd like to ask you a
    couple of questions that I think can be answered with a simple
    yes or no.
        Do you agree with President Trump that the media is the
    ``enemy of the American people''?
        Chairman Pai. Well, Senator, I don't want to weigh in to
    the larger political debates, but I'll simply reaffirm the
    quotes that you offered from last year and the year before.
        Senator Udall. So you refuse to answer that?
        Chairman Pai. Oh, no, Senator. I----
        Senator Udall. About the media being the enemy of the
    American people.
        Chairman Pai. I believe that every American enjoys the
    First Amendment protections guaranteed by the Constitution.
        Senator Udall. And when you met with President Trump in the
    Oval Office and at Trump Tower, did you discuss any issues
    related to the media?
        Chairman Pai. Senator, I will leave the details of those
    conversations to the White House to determine. I'm not at
    liberty to say.
        Senator Udall. And did you discuss any specific company
    that interacts with the FCC?
        Chairman Pai. Again, Senator, I can't comment on the
    conversations I've had with the President. I would leave that
    to the White House to disclose.
        Senator Udall. Will the FCC operate independently of the
    White House?
        Chairman Pai. Absolutely, sir.
        Senator Udall. And will you resist any attempt by the White
    House to use the FCC to intimidate news organizations?
        Chairman Pai. Well, Senator, I have said consistently,
    including just last week in an international forum to the
    regulators and companies of the world, that we are an
    independent agency, and for any matter that is placed before
    me, I will take a sober look at the facts that are based on the
    papers submitted by interested parties, I will render a
    decision based on the law and precedents that apply to those
    facts, and I will make a determination based on what I and my
    colleagues think is in the public interest.
        Senator Udall. Now, White House Chief Strategist Stephen
    Bannon told an interviewer in January, and I quote, ``The media
    should be embarrassed and humiliated and keep its mouth shut
    and just listen for a while.'' Do you agree with him that the
    media should keep its mouth shut?
        Chairman Pai. Senator, again, I'm not going to weigh in to
    the larger political debates that are beyond the FCC's----
        Senator Udall. Would you, as an FCC Commissioner, make a
    comment like that to the media about them keeping their mouth
    shut?
        Chairman Pai. Senator, I certainly have not made comments
    like that. I've heard it at home every now and then when I
    don't discharge my personal responsibilities. But, no, I have
    not said such things like that.
        Senator Udall. The Wall Street Journal recently reported
    that the President's son-in-law, Jared Kushner, raised concerns
    with a Time Warner executive about CNN's coverage of President
    Trump. The article quotes--and it notes that Time Warner owns
    CNN and has a merger, pending potential anti-trust review. So
    have you had any discussions with or contacts with anyone in
    the Trump administration about CNN or any other news
    organizations?
        Chairman Pai. Senator, no, I've not had any conversations
    with him or anyone else in the White House about that
    transaction.
        Senator Udall. And will you immediately report to this
    committee if anyone from the White House contacts you or your
    staff about taking any favorable or negative action regarding
    any media or communications business?
        Chairman Pai. Senator, I will commit to following all the
    appropriate protocols and ethical requirements that apply to
    that sort of conversation.
        Senator Udall. Thank you very much.
        The Chairman. Thank you, Senator Udall.
        Senator Moran?

                    STATEMENT OF HON. JERRY MORAN,
                        U.S. SENATOR FROM KANSAS

        Senator Moran. Chairman, thank you.
        Chairman Pai and Commissioner O'Rielly and Commissioner
    Clyburn, thank you very much for joining us. I'll use this as a
    moment to compliment all three of you. I appreciate the
    relationship that we have had with you and your staff, the open
    and receptive way in which we work together, and I thank you
    for your public service, Commissioners.
        Commissioner Pai, I'd like to thank you for your comments
    in your opening moments of your presentation today. I
    appreciate the heartfelt nature of those. It was a shocking
    occurrence in our state and something that we highly, highly
    deplore.
        My first visit as I returned to Washington, D.C., after
    that was to the Embassy of India to express the concerns that
    we wanted to have with the families, those who came here from
    India, and to express the belief that Kansans are warm and
    welcoming people. And I thank you for your comments today and,
    again, express my pride in your and other Indian Americans'
    success and, particularly, Indian Americans' from Kansas
    success. So thank you so much.
        Chairman Pai. Thank you, Senator.
        Senator Moran. A couple of quick questions I'd like to
    raise. I know that my colleague, Senator Schatz, raised the
    topic of repack, and I guess he solicited from you and received
    your commitment to work with him, and I assume that includes
    the rest of us on the Committee, should a repack alteration be
    necessary. Let me ask a couple of more specific questions about
    that.
        Did you believe that the Commission adequately assessed the
    size and scope of the repack when it first was formulated, when
    the Commission first formulated its transition plan?
        Chairman Pai. Thank you for the question, Senator. I did
    have some concerns about the agency's course, but, obviously, a
    lot of decisions have already been made. So at this point, our
    goal is to work to ensure a smooth and successful transition,
    and part of that involves in the lead-up to the end of the
    auction, which is going to be coming up soon, putting out a
    scheduling public notice that outlines the steps, working with
    broadcasters to get cost estimates back, and other steps like
    that. So stay tuned is the best answer I can give you. We want
    to make sure we work with everybody involved.
        Senator Moran. When will you know if money set aside for
    the repack is sufficient?
        Chairman Pai. We anticipate that 3 months after the close
    of the incentive auction, we'll be getting cost estimates from
    all the broadcasters, and at that point, our task force, which
    has done a tremendous job, will be able to take stock and
    figure out how much money they estimate it's going to be, and
    if that number is within the $1.75 billion that Congress has
    allocated for us for the repack, then we'll take the
    appropriate action.
        Senator Moran. And when will you know if the 39-month time
    period established by your predecessor is sufficient?
        Chairman Pai. That will depend, in part, upon, obviously,
    when the auction closes, and there are some petitions for
    reconsideration that are pending that have raised some
    questions about that as well. So we're going to go where the
    facts take us, and we're just not sure what exactly the time-
    frame will be for that auction to close.
        Senator Moran. To switch topics, the Mobility Fund Phase
    2--congratulations on getting an order adopted for that fund.
    I'm pleased to see that we're moving forward. I understand that
    the order recognizes there is a need for a robust challenge
    process. I agree. We've had this conversation several times
    before about coverage maps and the challenges, their fallacy.
    Can you explain how a challenge process would actually operate?
        Chairman Pai. Thanks for the question, Senator. First and
    foremost, the congratulations and the credit are due to my
    colleagues who are sitting alongside me, working in good faith
    to put a product on the table that I think will benefit the
    American people.
        In terms of the challenge process, this was inspired, in
    part, by a drive I took last summer from--or last fall, rather,
    from Wichita to Des Moines, and I was struck by the fact that
    in a lot of places, the FCC's map might suggest we did have
    coverage, but we didn't, in fact. So we want to make sure that
    this challenge process is robust, that it gives the American
    people and the FCC accurate information about where consumers
    are covered and where they're not. So that's one of the issues
    we teed up in the Mobility Fund document we put out, was to
    figure out the best way to ensure that that data is accurate.
    If the map is accurate, great. But if it's not, we want to make
    sure we act on the basis of firm and accurate data.
        Senator Moran. Let me ask Commissioner Clyburn and
    Commissioner O'Rielly if they have any comments they'd like to
    make in regard to either of the questions that have been
    answered by Chairman Pai.
        Commissioner Clyburn. As you know, I have been pushing for
    a next phase of a Mobility Fund for some time, and I am happy
    to see its conclusion. When it comes to the challenge process,
    that is something that I am very passionate about also. I want
    to make sure that those who are challenging are not
    disadvantaged, that they have a means of affordably and in an
    open and transparent manner being able to say, ``No, this is
    not the case.'' So I am very proud of this very open and
    interactive process and look forward to continuing to work with
    the parties to make sure that we have accuracy and a process
    that will enable us to meet our goals.
        Senator Moran. Thank you.
        Commissioner O'Rielly. I agree with my colleagues. I pushed
    for inclusion of an improved challenge process, knowing what it
    needed to improve our mapping. And back to your questions on
    the repack and the pieces to those, I said I would be the first
    one to come to Congress if additional funding was necessary and
    in terms of the timing as well. I think it's a little premature
    to get to that point. Your question is when will we get to
    that. I think we're still months away from there.
        Senator Moran. Thank you all three. I'm pleased to see that
    we're having a conversation by three commissioners, not the
    normal dialog between two. So it's good to have this set of
    witnesses here. I've also been in a room with Senator Thune,
    and I recognize that sometimes I never get asked a question
    either. So I wanted to make sure you had the opportunity to
    make your record known.
        The Chairman. I think the Senator's time has expired.
        [Laughter.]
        The Chairman. Thank you, Senator Moran.
        Senator Peters?

                    STATEMENT OF HON. GARY PETERS,
                       U.S. SENATOR FROM MICHIGAN

        Senator Peters. Thank you, Mr. Chairman, and thank you to
    each of the Commissioners for your public service, and we
    appreciate having you here today and appreciate your openness
    to discuss these important issues.
        Chairman Pai, you have said that the Commission must, and I
    quote, ``commit itself to being a truly independent agency that
    makes decisions based on facts and law,'' which is certainly
    appreciated--you making that comment. I know that you are aware
    that in September 2015, Chairman Thune, Ranking Member Nelson,
    Senators Booker, Rubio, and McCaskill and I sent letters to the
    FCC, the DOT, and NTIA endorsing a plan for the joint testing
    of two proposals for spectrum sharing in the 5.9 gigahertz
    band, and I understand that--or I know that that testing is
    currently underway now.
        This band is vitally important to the automotive safety
    systems which will dramatically decrease highway deaths and
    will be a major advance when it's fully deployed. So in keeping
    with your commitment to transparency and letting the data drive
    the policy, can you commit to making public all of the data
    that is collected by the FCC during the bench and field testing
    phase?
        Chairman Pai. Senator, I would be happy to do so with the
    caveat that to the extent that there is confidential or trade
    secret or other--law enforcement, for example, information that
    might otherwise be revealed, we'd be happy to make public
    whatever we can. I'm not sure that there is, but I just want to
    make sure that, obviously, we abide by whatever rules and
    regulations apply to sensitive information.
        Senator Peters. I understand that, but everything else will
    be made public?
        Chairman Pai. We will certainly--I'll be happy to take a
    look at that. I'm sort of new to this issue as well, but we'd
    be happy to do whatever we can to make it public.
        Senator Peters. Great. I would also ask if you'd commit
    today that the Commission's final determination on spectrum
    sharing in the 5.9 gigahertz band will be based on sound
    engineering data, which will undergo rigorous and open review
    so others will be able to fully review the decision that was
    made?
        Chairman Pai. Senator, any action that we take in this area
    or any area has to be based on a firm factual foundation.
        Senator Peters. Great. What is your target date for making
    a final determination on spectrum sharing? Do you have a date
    now?
        Chairman Pai. We don't yet. I'm scheduled to sit down at
    some point with our Office of Engineering and Technology and
    the other experts of the agency and try to discuss some of
    these issues, and I'd be happy to get back to you, if that's
    OK, with a more specific timeframe. But I'm unable to give a
    date at this point.
        Senator Peters. Well, fair enough. But I'd appreciate it if
    you could contact my office. This is something that we're
    obviously following very closely and would love to have that
    dialog with you.
        Chairman Pai. Absolutely.
        Senator Peters. What has been the Commission's experience
    in coordinating with DOT and NTIA during the transition to the
    new administration? That coordination is going to be essential
    for this process, obviously.
        Chairman Pai. That's a good question. We are already in the
    process of doing outreach to both the Department of
    Transportation and to NTIA, and my commitments--well, my
    instruction to our staff was to make sure that we are as
    plugged in as we can be, to make sure that one agency is not
    acting to the exclusion of any other. So we want this to be an
    open and cooperative dialog moving forward.
        Senator Peters. Great. I appreciate that. Also, Chairman
    Pai, I want to pick up on Senator Moran's discussion and
    questions related to Form 477 data which is going to be
    critical for us to make sure that our rural areas actually get
    service. We have, I think, a big issue in Michigan if you look
    at who may qualify, even though we've got rural areas that,
    quite frankly, simply don't have service, but it appears as if
    they do, which is not reality.
        It really goes to the heart of the issue, which is beyond
    the challenge process, which we want to make sure is going to
    be vigorous and fully open. But we really have to change these
    maps. They are simply not accurate as far as what I am hearing
    and have been told. How are we going to go in and fundamentally
    make sure that we have good data? Because it's going beyond
    just the Mobility Fund Phase 2, which is important, but
    there'll be other issues as well that will arise. We need to
    have good data or we can't make good decisions.
        Chairman Pai. I couldn't agree more with that last sentence
    you expressed. I think that it's critical, not just for the
    Mobility Fund, but for any program the FCC administers, to make
    sure that our data is accurate. If you see a map, and it
    suggests that, for example, the UP is entirely green when you
    know it's not, then----
        Senator Peters. It's clearly not. I will tell you that,
    having just come back from there.
        Chairman Pai. Yes, we want to make sure that we capture
    accurately the realities on the ground, and that's part of what
    we're hoping to iron out in this challenge process. But even
    more generally, with respect to the Form 477, is to make sure
    that the information we're getting is correct, and that's one
    of the commitments I've got to this committee and, frankly, to
    our own professional staff going forward.
        Senator Peters. Well, I'd like to work closely with you on
    that as well, because it's of critical importance to many parts
    of my state, and I look forward to your commitment to it.
        Chairman Pai. Yes, sir.
        Senator Peters. Thank you.
        The Chairman. Thank you, Senator Peters.
        Senator Young?

                     STATEMENT OF HON. TODD YOUNG,
                       U.S. SENATOR FROM INDIANA

        Senator Young. Thank you, Chairman. I want to thank the
    Commissioners for all the time they're spending with us today.
        I'm a new member of this committee, so I thought I'd just
    very quickly lay out some operating principles that I intend to
    follow as I interact with the FCC. Before I do that, just know
    that I reviewed the FCC's strategic goals: promoting economic
    growth, protecting public interest goals, making networks work
    for everyone, and promoting operations excellence at the FCC.
    So I think implied in those goals is just a general effort to
    make sure that you serve the broader public interest.
        With that spirit in mind, I'm looking to partner with all
    of you to promote the following: private sector innovation,
    transparency at the FCC, bottom-up solutions as opposed to
    D.C.-driven policies, and sustainable and, wherever possible,
    bipartisan policies that give our job creators the certainty
    that they need to innovate.
        Commissioner O'Rielly, in your testimony, you spoke at some
    length about process reforms that you believe are important to
    create an efficient, transparent, and effective FCC. I couldn't
    agree more. Process is policy so frequently. I'd like you to
    give some more specificity to what you've laid out in your
    testimony.
        I've long been a champion of Congress reasserting its role
    with respect to reviewing major regulations and making sure
    that what we have in place is still relevant and serves the
    broader public interest. Why do you believe it's important to
    create a new Bureau of Economics within the FCC, and are there
    other bureaus within the FCC that you believe should be
    consolidated perhaps to better reflect regulated industries?
        Commissioner O'Rielly. I appreciate the question, and I've
    put forward a number of different process reform ideas. Most of
    them deal with the internal workings of the three of us
    remaining. But your point gets to the question of cost-benefit
    analysis, something the Commission has not done, even though
    previous chairmen have promised to do so.
        I believe in cost-benefit analysis, and if you read items,
    as I read every item that I vote on--if you read them, you'll
    see the cost-benefit analysis is sorely lacking. They do some
    on the cost, but very little benefit is quantified. Even though
    it can be difficult, it should be done.
        So I've had difficulty with our current structure in that
    the economists are scattered throughout the different bureaus
    today, so there's no continuality between the different items
    that you'll get. One may be a little bit better than the other.
    Another will be completely lacking. So there may be a sentence
    or two about cost-benefit analysis, and it always comes in the
    same form. The benefits are large and the costs are whatever
    they are, but they're always exceeded by the benefits, so we
    have to go forward on this item, and that's not quantifiable,
    in my opinion, and not sufficient.
        Senator Young. Thank you. Chairman Pai, you also discussed
    in your testimony the need to reform internal processes. What
    additional authorities do you require, if any, to make the sort
    of reforms that you think are necessary?
        Chairman Pai. Thanks for the question, Senator. I do think
    we have a lot of tools in the toolbox, so to speak. Under
    Sections 4 and 5 of the Communications Act, we do have the
    authority to organize ourselves in order to promote efficiency
    in administration.
        There are some things, obviously, that lie within Congress'
    purview, and Congress is considering, for example, process
    reforms of its own, reforms of the Sunshine Act, for example,
    to allow the three of us to collaborate, which we cannot
    currently do without running afoul of restrictions, and
    consolidated reporting, that instead of sending up a bunch of
    reports that consume a lot of staff resources and that very few
    people read, we provide you a unified product that would better
    enable you to discharge your legislative responsibilities.
        Senator Young. Thank you. I want to commend you on your
    efforts to close the digital divide and that of other
    commissioners, and I look forward to working together on that
    effort. As a matter of follow up here, I'd like to ask you,
    seeing as the President has proposed that we pass a major
    infrastructure package at some point in the fairly near term,
    what lessons you've learned, say, in the past decade, as you
    look back, about implementing broadband buildout. And if
    Congress were to appropriate additional funds, do you have
    thoughts about where we can get the most bang for the buck?
        Chairman Pai. Thanks for the question, Senator. I think
    that the biggest lesson I've learned is that America is a very
    challenging place, in some cases, to deploy broadband. The
    business case for the private sector won't necessarily be
    there, and so we need to think creatively, both in terms of the
    wide stewardship of Federal funds under our administration,
    about modernizing our regulations to ease that business case,
    and to encouraging others, the states and localities, for
    example, to adopt broadband-friendly policies. Those three
    tools, I think, are things that we can and should be
    implementing.
        With respect to the infrastructure plan, I do hope, with
    due respect to the White House and to this body, that digital
    infrastructure is a part of that conversation. I think that in
    the 21st century, as I travel around the country, anyway,
    that's one of the first things that people mention, is that
    they might leave their small town or not have the opportunities
    that others have because they don't have Internet access.
    That's something I'm committed to solving, and to the extent
    that Congress can help us solve it, that would be terrific.
        Senator Young. Thank you. I yield back.
        The Chairman. Thank you, Senator Young.
        Next up is Senator Cortez Masto.

               STATEMENT OF HON. CATHERINE CORTEZ MASTO,
                        U.S. SENATOR FROM NEVADA

        Senator Cortex Masto. Good morning or afternoon. It's a
    pleasure to meet all three of you, and I look forward to
    working with you.
        Chairman Pai, congratulations on your re-nomination. I look
    forward to an opportunity to sit down with you and talk a
    little bit more about the issues we're discussing today and
    some others as well.
        Chairman Pai. Thank you, Senator.
        Senator Cortez Masto. So let me start off--I'm really
    interested in a couple of things, obviously rural broadband as
    we have many rural areas in Nevada that are of concern, but
    before I get to that, one of the things that concerns me is the
    hiring freeze that the current administration has instituted.
    From your perspective, Chairman Pai, what impacts have you seen
    or felt from the White House's hiring freeze to your agency?
        Chairman Pai. Thus far, Senator, to be honest, we've been
    so busy producing work product for the American people that I
    haven't had a chance to talk to our human resources and other
    administrative experts to figure out what we haven't been able
    to do. What I can say is that we're making progress on some of
    our core priorities using the terrific staff that we've got
    thus far.
        Senator Cortez Masto. And how many years have you been
    serving as a Commissioner already?
        Chairman Pai. I've been a Commissioner from 2012 to January
    of this year, and I was a staffer for almost four years before
    that.
        Senator Cortez Masto. Can you assure me that the merger
    reviews or legal challenges aren't being impacted by the need
    to hire staff?
        Chairman Pai. I'm sorry. Can you repeat the question?
        Senator Cortez Masto. Sure. Can you assure me that your
    merger reviews by your agency or legal challenges are not being
    impacted by the need to hire legal staff or staff, in general?
        Chairman Pai. Yes, Senator, I can.
        Senator Cortez Masto. And are there positions that, to your
    knowledge, are vacant currently in the Office of Inspector
    General?
        Chairman Pai. I can't recall if there--I believe there are
    a few in the Office of Inspector General. I know also with the
    field offices that there are four vacant agent positions.
        Senator Cortez Masto. Could you do me a favor and provide
    to me in writing answers to the questions with respect to the
    hiring freeze, the impact, and where they're located throughout
    your agency? That would be helpful.
        Chairman Pai. I'd be more than happy to do that.
        Senator Cortez Masto. Thank you very much.
        Commissioner O'Rielly, I know that the FCC's Cybersecurity
    and Communications Reliability Division works with the
    communications industry to develop and implement improvements
    that help ensure the reliability, redundancy, and security of
    the nation's communications infrastructure. What else,
    specifically, can the FCC be doing to aid in the concern and
    challenge of cybersecurity and identity theft?
        Commissioner O'Rielly. So I want to be careful here. CCR
    does a very good job in providing recommendations and improving
    the relationships that they have with the providers that we
    oversee. Our statutory authority is relatively limited in the
    data security space. That would be something they would be open
    to if Congress were to change those lines of jurisdiction.
    There are other agencies that the providers do interact with
    and operate in terms of the data security and pieces of that
    nature.
        Senator Cortez Masto. So limited to no authority right now
    to engage in that space?
        Commissioner O'Rielly. I think it is extremely limited in
    terms of the data security. If Congress were to change that, I
    would implement whatever changes they sought.
        Senator Cortez Masto. OK. Thank you.
        Getting back now to expanding broadband, we've had
    discussions on this. I'm interested particularly in the access
    and siting on public and tribal lands, and I'm aware of these
    concerns, particularly in the state of Nevada, where over 80
    percent of the lands are owned by the Federal Government.
        Chairman Pai, your bio page on the FCC website references
    that your regulatory philosophy is that we need to streamline
    the process for deploying wireless infrastructure, and your
    empowerment agenda includes that the Federal Government should
    speed the deployment of broadband on Federal lands which often
    impacts our most rural communities by adopting shot-clocks for
    action, minimizing fees, and mapping Federal assets, among
    other steps.
        Can you please explain to me what we can do to address
    these challenges, and also what commitment you can make to
    helping get access to more Nevadans who are impacted by some of
    these hurdles?
        Chairman Pai. Well, Senator, I'll start with the last part
    of your question first, which is that you've got my hearty
    commitment to work with you to make sure that all Nevadans, but
    especially rural Nevadans, have access to digital
    infrastructure. I saw that for myself on the outskirts of Reno,
    when I saw a fixed wireless provider providing high-speed
    connectivity to what was then the Tesla factory out there, and
    it was incredible what they were able to do in some pretty
    challenging environments with respect to wireless connectivity
    and fiber and the like.
        With respect to how we can encourage the deployment, I do
    think that we need to speed the ability of providers to deploy
    on Federal lands. Currently, it takes twice as long if you want
    to get a permit on Federal land as it does on private land, and
    want to be able to close that gap.
        Additionally, we want to make sure that to the extent we're
    talking about wireless infrastructure that the wireless
    infrastructure of the future, the small cells, distributed
    antenna systems, et cetera, aren't subject to the same onerous
    requirements that would apply to, say, a couple of hundred-foot
    cell tower. Those 5G networks of the future, as they're known,
    are going to require much more densified and smaller
    infrastructure.
        Additionally, we want to make sure that we work with all
    stakeholders to ensure that wireline infrastructure is more
    easily deployed. So, for example, I was in Carson City, and one
    of the topics we talked about was dig once, for example. It
    just makes a lot more sense if you're going to dig up a road as
    part of a Federal transportation project, why not also install
    at the same time the conduit that allows any provider, small,
    big, whoever, to be able to lay the fiber and provide a
    competitive alternative to consumers.
        Senator Cortez Masto. I'm glad you said that, and I don't
    mean to interrupt. But I think what you're saying is so
    important. So one of the areas I'd like to see--and I hope that
    this is something that you could take on--would be establishing
    or dedicating efforts to an interagency working group of
    partners to tackle these siting challenges. I've heard a lot of
    discussion about, yes, it's happening, and we have challenges,
    but there's no action to try to actually get something done. Is
    that something you would be dedicated to helping us with in
    Nevada and in any other state that has similar challenges?
        Chairman Pai. Absolutely, Senator. In fact, it's almost--
    it's, frankly, underway with the direction of what I've called
    my Broadband Deployment Advisory Committee that my colleagues
    have agreed to help with. That's one of the things they're
    tackling, is how to work cooperatively with other agencies to
    make sure that no one agency or no one part of government is
    standing in the way of digital opportunity.
        Senator Cortez Masto. Thank you. Thank you very much. I
    look forward to working with all of you.
        The Chairman. Thank you, Senator Cortez Masto. And you were
    all just having a conversation about the MOBILE NOW bill. So
    let's pass that through Congress. That would be a good place to
    start.
        Senator Capito is up next.

                STATEMENT OF HON. SHELLEY MOORE CAPITO,
                    U.S. SENATOR FROM WEST VIRGINIA

        Senator Capito. Thank you, Mr. Chairman, and I thank the
    Ranking Member as well.
        Welcome to our witnesses. I've had the opportunity to
    personally speak with all of you, and I appreciate your
    service.
        Chairman Pai, I appreciate you coming to West Virginia and
    walking the catwalk at the New River Gorge Bridge. I look
    forward to seeing you scale that rather than walk it, and I'm
    sure----
        [Laughter.]
        Senator Capito. Yes, that's a good laugh back there.
        Chairman Pai. Senator, there's no more be-Jesus left to be
    scared out of me at this point.
        [Laughter.]
        Senator Capito. But, anyway, thanks, and I appreciate the
    conversations that we've had, and I know you've had a lot of
    conversations with folks about rural America, and I really
    appreciate your digital empowerment agenda. I appreciate the
    explanation that you gave earlier--and I was able to hear--on
    the gigabit opportunity zone, so I will not take the
    opportunity to ask you for that.
        But I would like to know in terms of best practices for
    states in terms of siting and power pole siting and dig once
    and all those kinds of things, do you, as FCC Chair, plan to
    come out with some sort of recommended state initiatives that
    would help us--because you saw when we were in Fayette County
    how difficult it is, even in a small state like ours, to
    deploy.
        Chairman Pai. Absolutely, and that experience really
    informs a lot of the decisions that we're making now. I do
    think that we need to have a set of best practices that would
    enable states and localities to move forward if they want to
    allow their citizens to have digital access.
        One of the things that we are going to charge the Broadband
    Deployment Advisory Committee with is creating a model code so
    that any jurisdiction could take these policies off the shelf
    without having to hire people to study the issues, and et
    cetera, and just be able to say, ``We want to deploy broadband.
    The FCC has given its imprimatur to these sets of policies, so
    we know that they are going to be in the consumer interest, and
    let's move forward with those.''
        Senator Capito. I think that would be well appreciated by
    every state, because states don't have the expertise and a lot
    of times perceive to have many more barriers than what really
    exist. So I appreciate that.
        Commissioner Clyburn, thank you for coming to Morgantown
    and visiting the Preston Memorial Hospital. At that point, you
    were on your Connecting Communities tour. What were your two
    top-line takeaways from that tour that you included West
    Virginia in? What would you say?
        Commissioner Clyburn. Broadband and more broadband.
        Senator Capito. I like that.
        Commissioner Clyburn. So when we got a chance to come off
    of the mountain after I got my sanity back--if you have been up
    with her staffer, you will need medical attention.
        [Laughter.]
        Commissioner Clyburn. One of the things that I saw on this
    11-state tour that included your beautiful state is that every
    single challenge that we have in America can be improved and
    enhanced by broadband connectivity. But as we know, every
    single community is different. Every single community has its
    challenges, and part of the challenge is that the business case
    cannot always be made. So you need entities like ours. You need
    NTIA. You need RUS. You need all of us to come together and
    say, ``What can we do in a very targeted manner to bring
    connectivity to these regions?''
        So that's the takeaway. That's what I hear when I go
    everywhere, that we need connectivity in order to make sure--as
    you mentioned, Mr. Chairman, you really do not have to move.
    You should not have to relocate in order to thrive, survive,
    and to be productive in communities, and that's what we're all
    about.
        Senator Capito. Thank you. I would be remiss if I didn't
    mention as a form of reinforcement--we don't terrorize people
    when they come to West Virginia, but it is rather hilly there,
    and I do have a new role, Mr. Chairman, as Chair of the
    Financial Services General Government Appropriations
    Subcommittee, which appropriates for the FCC. So in case you
    didn't know, I thought I'd bring that up.
        [Laughter.]
        Commissioner Clyburn. So I won't bring up my mental health
    issues. OK. Thank you.
        Senator Capito. Mr. O'Rielly, one of the things we talked
    about in my office was this white space issue that I think
    could hold some great promise in rural America. I think there
    has been some discussions on the regulatory space around white
    space and simplifying and making it easier and more clarified
    for some of the providers. Could you just talk about that
    briefly?
        Commissioner O'Rielly. Absolutely. As we talked about in
    your office, is the opportunity of the space between television
    channels within a market--can that be used for unlicensed
    purposes, Wi-Fi? And this committee has looked at this issue
    for a long time. We are actually farther down the road, which
    is very good. The software and some of the technology has been
    a little lacking than I would have liked, and we should be
    further along.
        But I think it has improved, and the Commission has made a
    number of changes in the last 2 years to improve the
    detectability to make sure there aren't false positives so
    we're not displacing broadcasters but still providing an
    opportunity to use those channels that are available for white
    space. And then what you can do with that, in partnering
    together with a number of different companies that operate in
    the unlicensed band, is quite remarkable. What they're able to
    do with small slivers is quite remarkable, and they're able to
    bring connectivity, to bring things like the Internet of Things
    available and wearables and all the things that will come from
    that.
        Senator Capito. Right. I would note that West Virginia
    University in partnership with AIR.U has been using this white
    space to connect their two campuses and to make sure that their
    students are always connected as they're moving back and forth
    between the campuses.
        Thank you all very much.
        The Chairman. Thank you, Senator Capito. And maybe the
    Senator from West Virginia can share with the other members of
    the Committee what it is that she has done to the FCC
    Commissioners to make them so agreeable.
        [Laughter.]
        The Chairman. Next up is Senator Klobuchar.

                   STATEMENT OF HON. AMY KLOBUCHAR,
                      U.S. SENATOR FROM MINNESOTA

        Senator Klobuchar. Thank you very much, Mr. Chairman.
        Thank you to the three Commissioners for all the work that
    you do.
        Congratulations, Chairman Pai.
        I know this was raised earlier, but we really need, as you
    all know, to have a full slate of Commissioners, and I hope the
    President will re-nominate Jessica Rosenworcel. As I always
    note, not only is she really smart, but I like that she has a
    name that's harder to pronounce than mine own. So we'd like to
    get that done.
        Broadband deployment, as Senator Capito and you just noted,
    Commissioner Clyburn, is really the infrastructure challenge of
    our generation. Senator Capito and I are two of the five or six
    co-chairs of the Broadband Caucus, and I recently led a letter
    to the President along with the co-chairs that was signed by 48
    Senators urging the President to include broadband as part of
    any infrastructure initiative. As we know, the MOBILE NOW Act
    that passed the Committee in January included my provisions to
    advance dig-once policies and expand wireless coverage. Senator
    Thune and I have pushed for the standalone broadband reforms.
        Chairman, why is direct Federal support like the FCC
    provides through the Universal Service Fund critical to
    deploying broadband in the rural parts of our country?
        Chairman Pai. Thanks for the question, Senator. I think the
    core reason is because in too many parts of the country, you
    simply cannot build a business case for deployment. So, for
    example, in places like where I'm from in Kansas or in the Iron
    Range in your state, it's going to be difficult in the absence
    of Federal subsidies through the Universal Service Fund to
    figure out a way to lay fiber or to deploy wireless
    infrastructure, and that's something that, again, working on a
    bipartisan basis, I'm hopeful we can solve in the time to come.
        Senator Klobuchar. Exactly. I started my day with a number
    of people working on the infrastructure issues, and I'm very
    glad that both the administration and the proposal we've
    recently put out for a trillion dollars in infrastructure on
    the Democratic side include infrastructure. So we're hopeful
    that when something comes out, it will include broadband in the
    infrastructure.
        I'm Co-Chair of the 911 Caucus, Commissioner Clyburn, and I
    know you've worked on some of these issues. Senator Nelson and
    I have announced that we're putting a draft together on--Next
    Gen 911 Act of 2017--locality issues and things like that.
    Could you talk about the importance of the transition to Next
    Gen 911?
        Commissioner Clyburn. It provides us with more continuity.
    It provides us the ability--in particular, for the American
    citizen when it comes to the most stressful time of their
    lives--provides them with more certainty and more robust
    options when it comes to connecting with their public safety
    access point.
        There are 6,800 of those in this nation, and, honestly,
    they're not all created equal. So we really have to do what we
    can to bridge that particular gap when it comes to providing
    services and catch everyone up so that next-generation 911 is
    truly a reality.
        Senator Klobuchar. Thank you.
        Chairman Pai, Senator Lee is here, and he and I work on
    anti-trust. That's our subcommittee over in Judiciary, and
    we've heard from small independent programmers that most
    favored nation clauses create a hurdle that prevents consumers
    from being able to access their content. Others maintain that
    MFNs are pro-competitive.
        Last year, the Commission issued a Notice of Proposed
    Rulemaking on this issue. I understand you dissented, at least
    in part because of process concerns. What are your plans on
    moving forward with that Notice of Proposed Rulemaking?
        Chairman Pai. Thanks for your question, Senator. The
    comment period just closed a couple of weeks ago, and so our
    professional staff is taking stock of what's in the record, and
    at some point, I'll be able to sit down with them and try to
    figure out the appropriate way forward along with my
    colleagues.
        Senator Klobuchar. Do you want to add anything to that,
    Commissioner Clyburn?
        Commissioner Clyburn. Yes. This was something that was of
    great interest to me. I heard from dozens of independent
    programmers who say that most favored nation clauses that are
    unfavorable and unfair--you know, other practices--very
    limiting in terms of their online experience, very limited in
    terms of the access that they have, and very limited by way of
    the viability of their business. So I'm hopeful that the
    Chairman, after careful review, will move forward with this
    item, because I believe that this needs our attention.
        Senator Klobuchar. OK.
        Commissioner O'Rielly. I agree with the Chairman's review
    process.
        Senator Klobuchar. All right. Well, thank you to all of
    you. Thanks.
        Chairman Pai. Thank you, Senator.
        The Chairman. Thank you, Senator Klobuchar.
        Next up we have Senator Markey.

                   STATEMENT OF HON. EDWARD MARKEY,
                    U.S. SENATOR FROM MASSACHUSETTS

        Senator Markey. Thank you, Mr. Chairman. Regrettably, the
    Congress and the FCC have already fired their opening salvo in
    the war on Net Neutrality and the Open Internet Order, and
    broadband privacy protections are the first victim. Yesterday,
    Senator Flake introduced a resolution that would undo the FCC's
    broadband privacy rules by utilizing the Congressional Review
    Act, or the CRA. And last week, the FCC stopped the
    implementation of the data security protections of the rules
    which could make subscribers' sensitive information more
    vulnerable to breaches and unauthorized use.
        I fear that this is just a preview of coming attractions,
    and Congress or the FCC may take further actions to roll back
    these critical privacy protections, because big broadband
    companies don't want to give consumer privacy protections the
    attention which they deserve. The privacy rules that are on the
    books aren't cumbersome. They're not complex or complicated.
    They're common sense.
        They simply, one, require the Internet service provider to
    get consumer consent before using or sharing subscribers'
    personal information; two, promote transparency by mandating
    that the ISPs tell the consumer what they're collecting about
    them; and, three, ensure that the ISPs adopt data security
    protections and notify consumers if a breach occurs. That's it.
    That's what the whole fight is about. The big broadband
    companies don't like it. They don't want to spend the money to
    give the consumers that information. They would not, as a
    result, have to abide by those robust privacy protections.
        Commissioner Clyburn, isn't it true that many Americans
    across the country don't even really have a choice as to their
    broadband provider, so if they don't like the privacy
    protections that the Internet service company is providing,
    they don't have another provider to really go to affordably?
        Commissioner Clyburn. Absolutely. There are very few places
    that have two or more options for individuals.
        Senator Markey. And isn't it true that consumers pay
    incredible amounts of money each month in order to have access
    to the broadband?
        Commissioner Clyburn. Absolutely.
        Senator Markey. So killing these FCC privacy rules through
    a CRA would create an unregulated wild west where captive
    consumers would have no defense against abusive invasions of
    their privacy by their ISP. The rules are on the books. The
    broadband providers don't like it. They've always fought it.
    They are definitely in a situation where they think they can
    finally escape having to have robust privacy protections in
    place.
        The headlines every day warn us of what can happen with
    smart TVs, with smart devices, what the broadband revolution
    makes possible, in terms of the compromise of information of
    innocent Americans. This is just another example.
        Now, moving over to Net Neutrality, the Open Internet
    Order, the Census Bureau reported that the U.S. broadband and
    telecommunications industry spent over $87 billion in capital
    expenditures in 2015. Meanwhile, last year, almost half of all
    venture capital funds invested in this country went toward
    internet-specific and software companies. And yesterday, over
    170 organizations sent a letter calling on the FCC to promote
    economic growth and preserve competition by maintaining the
    Open Internet Order. I ask unanimous consent that this letter
    be entered into the record.
        [The information referred to follows:]

                                                          March 7, 2017
    Hon. Ajit Pai,
    Chairman,
    Federal Communications Commission,
    Washington, DC.

    Hon. John Thune,
    Chairman,
    U.S. Senate Committee on Commerce, Science, and Transportation,
    Washington, DC.

    Hon. Bill Nelson,
    Ranking Member,
    U.S. Senate Committee on Commerce, Science, and Transportation,
    Washington, DC.

    Dear Chairman Pai and Senators Thune and Nelson,

        Protecting net neutrality is crucial to ensuring that the Internet
    remains a central driver of economic growth and opportunity, job
    creation, education, free expression, and civic organizing for
    everyone. The principles of net neutrality--that all data on the
    Internet should be treated equally, and Internet service providers
    (ISPs) should not discriminate or provide preference to any data,
    regardless of its source, content, or destination--are the foundation
    that has made the Internet the engine of opportunity it is today. The
    continuation of net neutrality is essential to the continued growth of
    the country and to ensuring access to social, political, and economic
    empowerment for all.
        In 2015, millions of people made their support for net neutrality
    clear in comments to the Federal Communications Commission (FCC)
    supporting the Open Internet Order. The order, which reclassified
    broadband Internet under Title II, enshrined the principles of net
    neutrality in law, and gave the FCC the authority to enforce it. As a
    result, broadband providers cannot block users' access to content, slow
    down connections to services, or charge for speedier delivery of
    preferred content.
        Since the order went into effect, broadband infrastructure
    investment is up, ISP revenues are at record highs, and businesses
    continue developing innovative ideas and offerings. A 2016 report found
    that the total capital expenditures of ISPs increased by 4 percent and
    that total revenues increased by 5 percent from 2014 to 2015. Moreover,
    we consistently see businesses innovate and create new ways to provide
    fresh content and better services to consumers.
        We, the undersigned organizations, representing a diverse group of
    consumer, media, technology, library, arts, civil liberties, and civil
    rights advocates and content creators, urge you and your colleagues to
    oppose legislation and regulatory actions that would threaten net
    neutrality and roll back the important protections put in place by the
    FCC in 2015, and to continue to enforce the Open Internet Order as it
    stands.
        Net neutrality supports and protects these basic values:

       Competition: Net neutrality helps to ensure that all
            companies, from small startups to larger companies, have equal
            access to consumers online. It allows companies to fairly
            compete for customers within their market and incentivizes the
            development of new services and tools for consumers. This
            competition is the engine of the U.S. economy, and should be
            promoted.

       Innovation: Net neutrality makes it possible for new
            companies and new technologies to emerge and ensures that
            broadband providers do not create undue burdens and cost
            barriers that can harm small businesses and undermine job
            growth.

       Free Speech: Net neutrality ensures that everyone with
            access to the Internet can organize and share their opinions
            online equally, a key safeguard for our democracy. It ensures
            that ISPs are not arbiters of speech and expression online by
            favoring particular forums or providing enhanced access to
            specific content and audiences.

       Equality of Access: Net neutrality ensures that access to
            websites and content is based on individual preferences. This
            means content creators are not forced to pay ISPs for content
            distribution in order to reach consumers. It also means that
            end users are able to access all the content they desire
            without restrictions from ISPs. This allows all people in the
            U.S. to access essential healthcare services, educational
            resources, and employment opportunities and the freedom to
            choose from the full spectrum of online content. It means that
            a small church staffed by volunteers has the same opportunity
            to reach the public as a large media corporation with an
            unlimited budget. At a time when there is bipartisan agreement
            in Congress that we must increase Internet access to all people
            and bridge the digital divide, the quality of this access is
            just as essential.

        In order to promote continued economic, social, and political
    growth and innovation, it is imperative that the Internet remain open
    and accessible to all people in the future. We strongly urge you and
    your colleagues to protect the free and Open Internet and the benefits
    it provides to for all people.
                Sincerely,

    18MillionRising.org
    Access Humboldt
    Access Now
    Access Sonoma Broadband
    act.tv
    Akaku Maui Community Media
    Alliance of South Asians Taking Action
    Allied Media Projects
    Alternate ROOTS
    American Association of Law Libraries
    American Civil Liberties Union
    American Folklore Society
    American Library Association
    Appalshop, Inc.
    Arts & Democracy
    Asamblea de Derechos Civiles
    Association of American University Presses
    Association of Research Libraries
    Benton Foundation
    Bill of Rights Defense Committee/Defending Dissent Foundation
    Brattleboro Community Television, Brattleboro VT
    Brown Boi Project
    California Center for Rural Policy
    CASH Music
    Center for Democracy & Technology
    Center for Digital Democracy
    Center for Media & Democracy--Burlington VT
    Center for Media and Democracy
    Center for Media Justice
    Center for Popular Democracy
    Center for Rural Strategies
    Central Appalachia Regional Network
    Champaign-Urbana Citizens for Peace and Justice
    Civic Hall
    Color Of Change
    Common Cause
    Common Frequency
    Consumers Union
    Courage Campaign
    CREDO
    Daily Kos
    Dance/USA Demand Progress
    Democracy for America
    Dignity and Power Now
    Easton Community Access Television
    Electronic Frontier Foundation
    Ella Baker Center for Human Rights
    Engine EveryLibrary FAIR
    Faithful Internet
    Fight for the Future
    Forward Together
    Fractured Atlas
    Free Press
    Free Speech Coalition
    FREE! Families Rally for Emancipation and Empowerment
    Future of Music Coalition
    Generation Justice
    Global Action Project
    Greater Northshire Access Television
    Greenlining Institute
    Greenpeace USA
    Hardwick Community Television, Inc.
    Highlander Research and Education Center
    Hollaback!
    Hollow Earth Radio
    Hope Community/SPEAC
    Illinois Campaign for Prison Phone Justice
    Institute for Local Self-Reliance
    Iraq Veterans Against the War
    Kingdom Access Television
    KPPP-LP 88.1 FM Radio
    KRSM--The Southside Media Project
    Lake Champlain Access Television
    League of American Orchestras
    Line Break Media
    Mad River Valley Television, Inc.
    Making Contact
    Martinez Street Women's Center
    May First People Link
    Media Action Center
    Media Action Grassroots Network
    Media Alliance
    Media Mobilizing Project
    MediaVox
    Mexican American Opportunity Foundation
    Million Hoodies Movement for Justice
    MomsRising.org
    Movement Strategy Center
    MoveOn.org Civic Action
    Museums and the Web
    National Association of Latino Independent Producers (NALIP)
    National Coalition Against Censorship
    National Consumer Law Center, on behalf of its low-income clients
    National Digital Inclusion Alliance
    National Domestic Workers Alliance
    National Economic & Social Rights Initiative (NESRI)
    National Federation of Community Broadcasters
    National Guestworker Alliance
    National Hispanic Media Coalition
    National Organization for Women
    National Performance Network & Visual Artists Network
    Native Public Media
    Netroots Nation
    New America's Open Technology Institute
    New Music USA
    New Orleans Workers Center for Racial Justice
    Open Access Connections
    Open MIC (Open Media and Information Companies Initiative)
    OpenMedia
    OpenTheGovernment.org
    Opera America
    Other Worlds
    Other98
    OVEC-Ohio Valley Environmental Coalition
    PEN America
    People's Action
    People's Press Project
    Performing Arts Alliance
    PhillyCAM
    Popular Resistance
    Presente.org
    Progressive Change Campaign Committee
    Progressive Technology Project
    Prometheus Radio Project
    Public Knowledge
    Race Forward
    Racial Justice Action Center
    Rewire
    Right To The City Alliance
    RootsAction.org
    RYSE Center
    Southerners On New Ground
    SouthWest Organizing Project
    SPNN
    Stop LAPD Spying Coalition
    Student Power Networks
    SumOfUs
    Sunlight Foundation
    The Alliance for Media Arts and Culture
    The Authors Guild
    The Harry Potter Alliance
    The Media Consortium
    The Nation
    The People's Press Project
    Theatre Communications Group
    TURN-The Utility Reform Network
    U.S. Department of Arts and Culture
    United Church of Christ, OC Inc.
    United Plant Savers
    United We Dream
    Urban Librarians Unite
    Urbana Champaign Independent Media Center
    Virginia Rural Health Association
    Voices for Racial Justice
    VOTE MOB
    WAFLS
    WFNU-LP Frogtown Community Radio (Frogtown Neighborhood Association)
    Within Our Lifetime
    WITNESS
    WNC Communities
    Women, Action, and the Media
    Women's Institute for Freedom of the Press
    Women's Media Center
    Woodhull Freedom Foundation
    Working Narratives
    Writers Guild of America, West
    X-Lab
    Young Women United

        Senator Markey. We've hit the sweet spot. We have $87
    billion invested by the big broadband companies. We have half
    of all venture capital going into Internet and software
    companies. That's what you want. You want that kind of a
    dynamic. You want the innovation over here, and you also want
    the deployment of broadband. It is happening. There is no
    problem that needs fixing.
        Commissioner Clyburn, has the Open Internet Order really
    made broadband providers unprofitable? Is it really
    discouraging these companies from investing billions of dollars
    in their networks?
        Commissioner Clyburn. All of the reputable figures that
    I've seen say no, that an investment is occurring. As you
    mentioned, venture capital money is flowing, and according to
    SEC filings, where you are to identify if there are any issues
    or barriers when it comes to a particular process or an action,
    there was no identification of the Open Internet being a
    negative when it comes to investment opportunities.
        Senator Markey. So I'm going to fight very hard to protect
    those privacy rules that are now on the books, and I'm going to
    fight very hard to protect Net Neutrality. And, believe me, the
    4 million Americans who communicated in the last round on these
    Open Internet issues are just going to be dwarfed by the number
    of people out there who are going to concerned if privacy and
    competition rules, Open Internet rules, are taken off the
    books.
        Thank you, Mr. Chairman.
        The Chairman. Thank you, Senator Markey.
        Senator Nelson wants to----
        Senator Nelson. Mr. Chairman, I've got another commitment
    and I'm going to go. Since I was going to do cleanup, I will
    defer that by submitting my questions, particularly to you,
    Chairman Pai, for the record, and I would appreciate written
    answers to the questions.
        Chairman Pai. Yes, sir.
        Senator Nelson. Thank you.
        The Chairman. Thank you, Senator Nelson.
        Senator Lee?

                      STATEMENT OF HON. MIKE LEE,
                         U.S. SENATOR FROM UTAH

        Senator Lee. Thank you very much, Mr. Chairman.
        Thanks to each of the Commissioners for being here. It's an
    honor to be with you. This is my first FCC oversight hearing as
    a member of the Commerce Committee, so I'm glad to have you
    here.
        I wanted to begin my questions and remarks today by sharing
    the words of a previous FCC Chairman, William Kennard, who
    served, of course, under President Clinton. He wrote the
    following in 1998. He said, ``Our vision for the future of
    communications must be a bold one. We must expect that in 5
    years, there can be fully competitive domestic communications
    markets with minimal or no regulation. In such a vibrant,
    competitive communications marketplace, the FCC would focus
    only on those core functions that cannot be accomplished by
    normal market forces. As a result, the traditional boundaries
    separating the FCC's current operating bureaus should no longer
    be relevant. In 5 years, the FCC should be dramatically
    changed.''
        Chairman Pai, I'll start with you. Tell me what you think
    about the comments made by then Chairman Kennard, whether you
    agree with them and whether we have arrived at a place like the
    one he described?
        Chairman Pai. Thank you for the question, Senator. I think
    Chairman Kennard deserves tremendous credit that, at an early
    age of the internet, he foresaw that there would be conversions
    and that the FCC's mission would have to adjust accordingly,
    and I think that his impressions in a lot of ways about how the
    marketplace would adjust and how the Commission would have to
    adjust along with it--obviously, the FCC has long labored under
    what are known as silos, where we regulate certain companies
    depending on how they are classified and what technology they
    use, for example, and those traditional distinctions are
    increasingly becoming obsolete in the modern age.
        So it's one of the things that's incumbent upon the
    agencies to make sure that we keep abreast of the times, both
    with respect to our substantive regulations, but also making
    sure that our staff are tasked with defending the public
    interest in the most efficient and appropriate way.
        Senator Lee. There's a natural inclination in any
    government entity to look to the preservation of the entity.
    There's also an obligation, as these comments reveal, to serve
    the people, and, as he said, we need free markets. We need
    market forces, and that doesn't always cut in the same
    direction as expanding the power of the agency in question.
        Chairman Pai. That's exactly right, Senator, and that's why
    one of the things that I've been focused on from the get-go has
    been process reform, how to adjust the agency's administration
    and operation to make sure that we give every one of the
    commissioners and every one of our co-workers, the professional
    staff, the chance to do what they do best, which is to defend
    the public interest.
        Senator Lee. On that note, I was glad that my colleague,
    Senator Young, brought up that issue earlier today, and I look
    forward to working with him and with other members of this
    committee and other members of the Senate to help move that
    forward. But as you pointed out earlier, Chairman Pai, there
    are some things that the Commission itself can do to initiate
    this process. In fact, as I understand it, the administration
    has agreed on such a plan or has identified such a plan as kind
    of a priority. Do you intend to initiate this process?
        Chairman Pai. That's one of the issues that has been
    raised, I know, in the press, and so that's one of the things
    that we're going to be looking at, and we're obviously open to
    any suggestions or ways to improve our operations. In the
    meantime, we're going to keep focused on the public interest
    and defending it as best we can.
        Senator Lee. Thank you. I appreciate that. In its 2015 Open
    Internet Order, the FCC claimed its unprecedented and sweeping
    Title II reclassification was necessary because broadband
    providers, to quote the order, ``have the incentive and ability
    to limit,'' close quote, the openness of the internet, the
    extent to which it's open. Yet in the course of its nearly 400
    pages within this Order, the FCC failed to effectively prove
    that it was offering anything that's anything more, in my
    opinion, than a solution in search of a problem.
        Commissioner O'Rielly, in the 2015 Open Internet Order, how
    many times did the FCC refer to what an Internet Service
    Provider may, could, might, or potentially do to block or
    degrade application services or content? Could you offer a
    guess?
        Commissioner O'Rielly. I can't give you an estimate of the
    number of times they did that, but it has been clear that these
    are prophylactic remedies that they've reviewed--I didn't
    support them, obviously--and the court has said they're
    prophylactic, so there was no--they're all forward-looking.
    They're all may, could, might, along those lines. But I
    couldn't give you an estimate of the exact number.
        Senator Lee. By our count, there were several hundred
    instances in which this happened, and it looks even worse
    considering the fact that the FCC's chief economist at the time
    called the order an economics free zone.
        I've got more questions. I see I'm out of time, so I
    suppose I can submit those for the record. Thank you very much.
    Thank you, Commissioners.
        The Chairman. Thank you, Senator Lee, and I'll be happy to
    get your questions in the record.
        Next up is Senator Blumenthal.

                 STATEMENT OF HON. RICHARD BLUMENTHAL,
                     U.S. SENATOR FROM CONNECTICUT

        Senator Blumenthal. Thanks, Mr. Chairman, and thank you for
    having this hearing.
        Thank you for being here. We're in an oversight hearing, so
    you'll have to forgive us for not being completely
    congratulatory and non-critical. I want to put in the record a
    number of materials, including an editorial from the New York
    Times dated February 10, an editorial from the Washington Post
    dated February 11, and a letter from the Consumers Union
    written to our Chairman dated March 7.
        [The information referred to follows:]

               The New York Times--The Opinion Pages / EDITORIAL

                     An Anti-Consumer Agenda at the F.C.C.

                      By THE EDITORIAL BOARD FEB. 10, 2017

        As President Trump rushes to dismantle Obama-era rules that protect
    Americans, he has an energetic helper over at the Federal
    Communications Commission. Its new Republican chairman has started
    undoing policies of his predecessor that were intended to make phone,
    cable and Internet service more fair and more affordable.
        Ajit Pai, who was a commissioner before he became Chairman last
    month, is trying to wipe away net neutrality rules put in place by Tom
    Wheeler, the former chairman, to prevent broadband companies from
    creating fast and slow lanes on the internet. Mr. Pai has scrapped a
    proposal to let people buy cable-TV boxes instead of renting them at
    inflated prices from companies like Comcast. Many of Mr. Pai's moves
    would hurt the people who have the least power. For instance, he has
    backed away from rules to lower the exorbitant rates for prison phone
    calls. And he has suspended nine companies from providing discounted
    Internet service to poor people through a program known as Lifeline.
        Mr. Pai, who says the Wheeler-era regulations are burdensome,
    clearly favors policies that serve the interests of large
    telecommunications companies.
        Consider the net neutrality rules, which were put in place to
    prevent broadband companies from giving preferential treatment to
    content from their affiliates or business partners. Because only one or
    two cable and phone companies provide high-speed Internet access to
    homes in most of the country, they can easily impose abusive policies
    without fear of losing customers. Those businesses have tried to use
    their power as Internet gatekeepers to demand that streaming companies
    like Netflix pay them fees to deliver movies and TV shows to people who
    are already paying for broadband. The regulations were upheld last year
    by the United States Court of Appeals for the District of Columbia. If
    Mr. Pai now scraps them, he will be helping big telecom companies at
    the expense of Internet users and smaller companies without the deep
    pockets to pay broadband providers.
        Mr. Pai wants cable companies to keep making a mint from renting
    cable boxes--a revenue stream that totals nearly $20 billion a year. He
    seems unconcerned that families across the country are being forced to
    spend an average of $231 a year on those fees, when they would save
    money over the long run if they were allowed to buy the boxes just as
    they purchase other electronic devices. In fact, Congress directed the
    F.C.C. to do just that. Yet the commission is ignoring that law and
    allowing this scheme to continue.
        Mr. Pai is aiming right at the poor with his policies on prison
    phone rates and discounted broadband service. Phone companies filed a
    lawsuit challenging rules adopted during Mr. Wheeler's tenure to cap
    prison phone rates, which had been as high as $17 for a 15-minute phone
    call. There is simply no justification for those rates. And by
    suspending companies seeking to offer discounted broadband service
    through Lifeline, the F.C.C. will deprive children from poor households
    of the high-speed Internet access they need to do homework. Mr. Pai
    says he is concerned about fraud and says the affected companies were
    not properly vetted. But this isn't the right way to root out abuse.
    The commission could, for example, subject companies participating in
    the program to regular audits.
        Congress created the F.C.C. to help all Americans obtain access to
    communication services without discrimination and at fair prices. Mr.
    Pai's approach does exactly the opposite.
                                     ______

             The Washington Post--The Post's View  Opinion

            The FCC talks the talk on the digital divide--and then
                          walks in the other direction

            Correction: An earlier version of this editorial incorrectly
            stated that the FCC offered no immediate explanation for
            changes to its Lifeline program. On the same day as the changes
            were made, the FCC released the order for reconsideration and a
            news release about the action. This version has been updated.

                         By Editorial Board February 11

        IN HIS first speech in the role, Federal Communications Commission
    Chairman Ajit Pai extolled the importance of bridging the digital
    divide between those who can afford Internet access and those who
    cannot. Days later, though, he opened another gap, this time between
    his words and his actions.
        Mr. Pai used his inaugural remarks to express his commitment to
    ``bring the benefits of the digital age to all Americans.'' Another
    early pledge to publish pending FCC regulations in a pilot program
    geared toward greater transparency was equally encouraging. But in a
    single Friday afternoon, the FCC took steps to undermine both promises:
    It removed nine companies from the roster of its Lifeline program for
    low-income broadband consumers, and it retracted four reports--two
    directly related to the digital divide--from its record.
        The FCC launched Lifeline in 1985 to make phone service more
    affordable for low-income Americans by allowing them to purchase
    discounted services from participating carriers. In 2016, the FCC
    shifted its focus to broadband access, and as part of that effort it
    began granting companies the right to enroll in the program nationally.
    This move stitched up holes in a state-by-state patchwork of
    participants to make the market everywhere more competitive. The nine
    companies booted from Lifeline this month owed their status to the
    change.
        Mr. Pai argues that the Lifeline designations were an Obama
    administration rush job and that pulling them back affected only a
    small percentage of the more than 900 companies in the program. An FCC
    spokesman also noted that the retracted reports remain in the former
    FCC chairman's online archive, although they now ``have no legal or
    other effect or meaning.''
        That's all true. But critics are right to worry that Mr. Pai's
    decisions may be the first steps in crippling Lifeline. He has long
    expressed skepticism of the program, citing concerns about fraud,
    although in a July 2016 congressional hearing on the subject he
    admitted he had yet to uncover any. Already, Mr. Pai has called for a
    hold on litigation in a court case challenging the FCC's authority to
    approve companies for national Lifeline participation, and it is
    unclear whether the agency will ever resume its defense in the case.
        The revocation of the reports--one of the four focused on expanding
    WiFi networks in primary and secondary schools and libraries, and
    another on improving the Nation's digital infrastructure--only lends
    credence to concerns about Mr. Pai's stated commitment to closing the
    digital divide. It certainly throws cold water on his claims to
    transparency.
        And these aren't the only reasons to fear the FCC is headed in a
    disturbing direction. Mr. Pai has also expressed eagerness to roll back
    other Obama-era changes to the agency that make for a freer and fairer
    Internet. That's one area where we can hope that, once again, he does
    not mean what he says.
                                     ______

                                                Consumers Union
                                                          March 7, 2017
    Senator John Thune,
    Chairman,
    U.S. Senate Committee on Commerce, Science, and Transportation,
    Washington, DC.

    Senator Bill Nelson,
    Ranking Member,
    U.S. Senate Committee on Commerce, Science, and Transportation,
    Washington, DC.

    Re: March 8, 2017 Oversight of the Federal Communications Commission
                Hearing

    Dear Chairman Thune and Ranking Member Nelson:

        Consumers Union, the policy and mobilization arm of Consumer
    Reports,\1\ encourages you to consider the following topics for
    discussion in advance of the Federal Communications Commission (FCC)
    oversight hearing scheduled for March 8, 2017. This hearing provides a
    unique opportunity to learn what newly-appointed Chairman Ajit Pai's
    agenda is for the Commission, and whether his views on policy matters
    are aligned with the best interests of consumers.
    ---------------------------------------------------------------------------
        \1\ Consumers Union is the public policy and advocacy division of
    Consumer Reports. Consumers Union works for a fair, just, and safe
    marketplace for all consumers and to empower consumers to protect
    themselves, focusing on the areas of telecommunications, health care,
    food and product safety, energy, and financial services, among others.
    Consumer Reports is the world's largest independent product-testing
    organization. Using its more than 50 labs, auto test center, and survey
    research center, the nonprofit organization rates thousands of products
    and services annually. Founded in 1936, Consumers Reports has over
    eight million subscribers to its magazine, website, and other
    publications.
    ---------------------------------------------------------------------------
        Perhaps no other sector of the economy has been more dramatically
    transformed in the past twenty-five years than telecommunications. Just
    a few decades ago, telecom to the average consumer meant nothing more
    than picking up the phone and calling someone, or maybe using a fax
    machine in the office. Only a select few of us were dabbling with the
    Internet or sending e-mails.
        Telecommunications in the early 21st century is all about
    connecting to the world around us--with friends, strangers, movements,
    information, art, ideas, and more. We can stream video via YouTube or
    Netflix, buy just about anything from Amazon or eBay, book an apartment
    overseas via Airbnb, post updates and organize rallies on Facebook,
    share photos on Instagram, hail a ride from a stranger via Uber or
    Lyft, or have a face-to-face chat with a friend on our smartphones.
    When we encounter something we don't know, we ``Google it'' or ``look
    it up on Wikipedia'' and seconds later, we have our answer. Telecom
    today means we truly have the world at our fingertips.
        These advancements did not magically happen sometime since the mid-
    1990s. Though both politicians and activists demanded an Internet
    ``free'' from regulation, the fact is that government carefully tended
    the rise of a diverse Internet full of choices--good choices--for
    consumers. By favoring competition over consolidation and common sense
    rules of the road instead of unbridled commercialization, policymakers
    fostered a rich and robust telecommunications industry and a vibrant,
    Open Internet that is changing our lives for the better every day.
        Such smart decisions by government played a role and must continue
    to do so to protect consumers in the new world of dizzying telecom
    inventions, and to guarantee a fair marketplace where the next great
    idea can flourish. Increased consolidation and industry calls for
    unwarranted deregulation pose challenges to the level playing field
    that benefits consumers. We at Consumers Union recognize the crucial
    role the FCC plays in the telecommunications sector, and we urge you to
    ensure the hearing is an opportunity to raise the critical consumer
    issues we describe in detail below.
    The Clear Need to Protect the FCC's Broadband Privacy Rules
        The FCC made history last October when it adopted consumer-friendly
    privacy rules that give consumers more control over how their
    information is collected by Internet service providers (ISPs). Said
    another way, consumers can decide whether an ISP can collect a treasure
    trove of consumer information, whether it is a web browsing history or
    the apps a consumer may have on a smartphone. We believe the rules are
    simple, reasonable, and straightforward.
        ISPs, by virtue of their position as gatekeepers to everything on
    the internet, enjoy a unique window into consumers' online activities.
    Data including websites consumers visit, videos viewed, and messages
    sent is very valuable. Small wonder, then, that ISPs are working so
    hard to have the FCC's new privacy rules thrown out, either through use
    of the Congressional Review Act or through the reconsideration process
    at the Commission. But we should make no mistake: abandoning the FCC's
    new privacy rules is about what benefits big cable companies and not
    about what is best for consumers.
        Unfortunately, one of Chairman Pai's first anticipated actions at
    the FCC is to unravel these rules. Doing so would clearly be choosing
    corporations over consumers. Chairman Pai said last week that he will
    seek to harmonize the FCC's privacy rules with those of the Federal
    Trade Commission (FTC).\2\ Moreover, he claimed consumers were
    ``stripped'' of the FTC's privacy protections in 2015, when ISPs were
    reclassified as common carriers under Title II by the FCC.\3\ Lacking
    is any mention that the FCC made this change in order to secure the
    legal footing to enact net neutrality rules. The Chairman also failed
    to mention the fact that the FCC's rules on broadband privacy were
    adopted to protect consumers' privacy in the wake of any losses
    experienced after reclassification.
    ---------------------------------------------------------------------------
        \2\ Statement, Office of Chairman Pai, FCC Chairman & FTC Chairman
    on Protecting Americans' Online Privacy (March 1, 2017), https://
    www.fcc.gov/document/fcc-chairman-ftc-chairman-protecting-americans-
    online-privacy
        \3\ Id.
    ---------------------------------------------------------------------------
        Chairman Pai has indicated that he believes ``jurisdiction over
    broadband providers' privacy and data security practices should be
    returned to the FTC, the Nation's expert agency with respect to these
    important subjects,'' \4\ even though the FTC currently possesses no
    jurisdiction over the vast majority of ISPs thanks to the common
    carrier exemption--an exemption made stricter by the Ninth Circuit
    Court of Appeals in last year's AT&T Mobility case.\5\
    ---------------------------------------------------------------------------
        \4\ Id.
        \5\ Federal Trade Commission v. AT&T Mobility LLC, XXX
    F. Supp. 3d XXX No.15-16585 (9th Cir. 2016)
    ---------------------------------------------------------------------------
        This is such a poor solution that it amounts to no solution at all.
    For the FTC to regain jurisdiction over the privacy practices of ISPs,
    the FCC would first have to scrap Title II reclassification--not an
    easy task which would be both time-consuming and subject to judicial
    review, and jeopardize the legal grounding of the 2015 Open Internet
    Order. Congress, in turn, would have to pass legislation to remove the
    common carrier exemption, thus granting the FTC jurisdiction over those
    ISPs who are common carriers. We are skeptical Congress would take such
    an action. Finally, the FTC does not enjoy the same robust rulemaking
    authority that the FCC does. As a result, consumers would have to wait
    for something bad to happen before the FTC would step in to remedy a
    violation of privacy rights.
        Though Chairman Pai's remarks express concern over the ``stripped''
    privacy rights of consumers and the need to fill the ``consumer
    protection gap created by the FCC in 2015,'' \6\ this ignores the stark
    reality that the FCC did just that last October by enacting strong
    rules which favor consumers over corporations. Chairman Pai also fails
    to acknowledge that the FCC's privacy rules are stronger than the FTC's
    guidelines. Any fondness for the FTC's approach to privacy is merely
    support for dramatically weaker privacy protections favored by most
    corporations.
    ---------------------------------------------------------------------------
        \6\ Statement, Office of Chairman Pai, FCC Chairman & FTC Chairman
    on Protecting Americans' Online Privacy (March 1, 2017), https://
    www.fcc.gov/document/fcc-chairman-ftc-chairman-protecting-americans-
    online-privacy
    ---------------------------------------------------------------------------
        There is no question that consumers favor the FCC's current
    broadband privacy rules. Consumers Union launched an online petition
    drive last month in support of the Commission's strong rules. To date,
    close to 50,000 consumers have signed the petition and the number is
    growing. When asked last week to submit comments to the FCC in
    opposition to industry's petitions of reconsideration, just under 9,000
    comments were filed in a matter of days. Consumers care about privacy
    and want the strong privacy protections afforded to the them by the
    FCC. Any removal or watering down of those rules would represent the
    destruction of simple privacy protections for consumers.
        We urge you to ask Chairman Pai and his colleagues how favoring the
    FTC's approach to privacy enforcement is anything less than a weakening
    of the current FCC broadband privacy rules, and to inquire about the
    many steps needed for the FTC to exercise comparable jurisdiction over
    issues critical to consumer privacy.
    At Risk: Net Neutrality and the 2015 Open Internet Order
        Consumers Union has long been a champion of strong net neutrality
    rules to ensure non-discrimination of Internet traffic, and to prevent
    throttling or paid prioritization of web content. We supported the
    adoption of the FCC's 2015 Open Internet Order and will oppose any
    attempt by Congress or the Commission to weaken or abolish the rules
    contained within the Order.
        The 2015 Open Internet Order faces an uncertain future. Despite
    overwhelming consumer support for net neutrality rules, many
    Republicans in Congress have vowed to overturn the Order via
    legislation. At the FCC, Chairman Pai and Commissioner O'Reilly
    dissented to the Order's passage, and thus, many expect they will act
    to dismantle it in the future.
        In support of this position, Chairman Pai's asserted that: ``after
    the FCC embraced utility-style regulation, the United States
    experienced the first-ever decline in broadband investment outside of a
    recession. In fact, broadband investment remains lower today than it
    was when the FCC changed course in 2015.'' \7\ His statement suggests
    the FCC's net neutrality rules are stifling investment into broadband
    services. and therefore, the rules should be scrapped. However, thanks
    to an investigation of this claim by colleagues at Consumerist, we now
    know the facts do not support Chairman's Pai claim.
    ---------------------------------------------------------------------------
        \7\ Ajit Pai, Remarks Of Federal Communications Commission Chairman
    Ajit Pai At The Mobile World Congress (speech, Barcelona, Spain,
    February 28, 2017), https://www.fcc.gov/document/chairman-pais-keynote-
    mobile-world-congress-barcelona
    ---------------------------------------------------------------------------
        According to a February 28, 2017, Consumerist article, major
    broadband providers including Comcast, AT&T, Verizon, CenturyLink, and
    Charter have all spent the same or more on capital expenditures in 2016
    since 2014--such spending does not represent a decline in
    investment.\8\ Broadband backbone providers also increased their
    capital investments since the 2015 Open Internet Order was adopted. For
    example, Level 3 Communications spent $1.33 billion in 2016, more than
    it spent in either 2015 ($1.23 billion) or 2014 ($1.25 billion). Cogent
    Communications spent $45.2 million last year, up from $35.6 million in
    2015.\9\ Again, these are investment increases, not declines.
    ---------------------------------------------------------------------------
        \8\ Chris Morran, FCC Chair Claims Broadband Investment At Historic
    Low Level Because Of Net Neutrality; That's Not What The Numbers Say,
    consumerist.com (Feb. 28, 2017), http://consumerist.com/2017/02/28/fcc-
    chair-claims-broadband-investment-at-historic-low-level-because-of-net-
    neutrality-thats-not-what-the-numbers-say/
        \9\ Id.
    ---------------------------------------------------------------------------
        We encourage you to ask Chairman Pai where the facts he cited came
    from with regard to the historically low levels of broadband investment
    that he uses as a justification to scuttle the FCC's net neutrality
    rules. We also ask you to investigate his plans and thinking with
    regard to net neutrality.
    Stemming Rising Cable Prices and the Rapid Growth of Unwarranted,
            Company-Imposed Monthly Fees
        More than six years ago, Charter Communications began charging a
    ``broadcast TV surcharge,'' purportedly to recoup the rising costs of
    network programming retransmission consent fees negotiated with
    broadcasters. Other large pay-TV providers--e.g., Comcast, and Time
    Warner Cable (now owned by Charter)--followed suit with their own
    ``broadcast fee'' in addition to other new charges, such as a
    ``regional sports fee'' for sports channels that some consumers never
    even watch. Some providers even add another ``HD technology'' fee.
    These fees are all in addition to set-top box fees that pay-TV
    providers have been gouging consumers with for years.
        Moreover, these add-on fees are tacked on top of the rates
    advertised to consumers, and are typically shown on the monthly bill
    near or with government-imposed taxes and fees, misleadingly suggesting
    that they are also required by law. Company-imposed fees cause consumer
    confusion, and more importantly, add up. A sample cable bill from
    December 2016 lists the bundled services rate of $119.99 for video
    programming and broadband internet. But then there's an ``AnyRoom DVR''
    fee of $10, an ``HD Technology Fee'' of $9.95, a ``Broadcast TV Fee''
    of $5, and a ``Regional Sports Fee'' of $3. That's almost $28 in add-
    ons in one month--nearly a 25 percent surcharge above the advertised
    base rate--that consumers are often unaware of when signing up for
    service.
        To make matters worse, some of these company-imposed fees have
    increased dramatically since being introduced a few years ago, and were
    hiked again for 2017. Taking a look at the same cable bill updated for
    February reveals a ``Broadcast TV Fee'' of $7, and a ``Regional Sports
    Fee'' of $5--a 50 percent increase over what was charged last year. So,
    the add-ons rose to $32 a month! This now represents more than a 26
    percent surcharge per month on top of the rate for what consumers
    believe they are paying for cable and broadband service. What better
    way to camouflage rate increases?
        We agree with the FCC's Consumer Advisory Committee's (CAC's)
    recommendation that pay-TV providers should provide consumers with the
    estimated dollar amount of their total monthly bill that includes
    company-imposed fees and surcharges at the time service is initiated.
    Even better would be if pay-TV providers did away with these arbitrary
    add-on fees altogether, and offered a competitive bundled rate that
    fully represents the cost of programming consumers are purchasing.
        We urge the Committee to ask what Chairman Pai believes should be
    done to stem the proliferation of company-imposed fees and whether
    under his leadership, the FCC will adopt the CAC's modest, consumer-
    friendly recommendation.
    Addressing the Punitively High Costs in the Set-Top Box Market
        The Commission has a decades-old mandate to inject competition into
    the market for devices that access and deliver multichannel video
    programming or pay-TV content--also known as the set-top box market.
    Titled ``Competitive Availability Of Navigation Devices,'' Section 629
    of the 1996 Telecommunications Act could not be clearer:

            The Commission shall, in consultation with appropriate industry
            standard-setting organizations, adopt regulations to assure the
            commercial availability, to consumers of multichannel video
            programming and other services offered over multichannel video
            programming systems, of converter boxes, interactive
            communications equipment, and other equipment used by consumers
            to access multichannel video programming and other services
            offered over multichannel video programming systems, from
            manufacturers, retailers, and other vendors not affiliated with
            any multichannel video programming distributor.\10\
    ---------------------------------------------------------------------------
        \10\ See 47 U.S.C. Sec. 549 (codifying section 629 of the
    Telecommunications Act of 1996)

        The FCC has tried, on more than one occasion, to meet its
    obligations to open this market to meaningful competition. But, those
    efforts have come up short for consumers. For example, the CableCARD
    experiment barely made a dent in the pay-TV providers' lock on the set-
    top box market, and 99 percent of consumers still rent a set-top box
    from their provider.\11\
    ---------------------------------------------------------------------------
        \11\ Press Release, Senator Ed Markey of Massachusetts, Markey,
    Blumenthal Decry Lack of Choice, Competition in Pay-TV Video Box
    Marketplace (July 30, 2015), http://www.markey.
    senate.gov/news/press-releases/markey-blumenthal-decry-lack-of-choice-
    competition-in-pay-tv-video-box-marketplace
    ---------------------------------------------------------------------------
        This common-sense reform is long overdue. It would directly benefit
    consumers who currently have little, if any, choice but to rent a set-
    top box from their pay-TV provider for months, and even years, in
    perpetuity. These costs add up: according to data in the Federal
    Communication Commission's (FCC) October Report on Cable Prices, cable
    prices increased by nearly triple the rate of inflation in the past
    twenty years.\12\ Liberating consumers from burdensome set-top rental
    fees--which average more than $231 per household per year\13\--is a
    critical and long-overdue way to lower unnecessary costs currently
    reflected in cable bills.
    ---------------------------------------------------------------------------
        \12\ Steven Lovely, Cable Prices Have Risen Faster Than Inflation
    For Each Of The Past 20 Years, Cordcutting.Com (Oct. 31, 2016), http://
    cordcutting.com/cable-prices-have-risen-faster-than-inflation-for-each-
    of-the-past-20-years/
        \13\ Press Release, Senator Ed Markey of Massachusetts, Markey,
    Blumenthal Decry Lack of Choice, Competition in Pay-TV Video Box
    Marketplace (July 30, 2015), http://www.markey.
    senate.gov/news/press-releases/markey-blumenthal-decry-lack-of-choice-
    competition-in-pay-tv-video-box-marketplace
    ---------------------------------------------------------------------------
        Like the consumers we work alongside, we were disappointed when the
    Set-Top Box Order failed to be enacted last year. We recognize the
    resistance from the pay-TV and content industries whose multi-billion
    dollar stranglehold on the set-top box market would finally have been
    disrupted had the FCC's proposal succeeded. But consumers have been
    waiting for almost twenty years for an option to view pay-TV--content
    they have paid for--without having to fork over extra cash to rent a
    set-top box. Unlocking the set-top box market is more than just a
    consumer benefit: Federal law requires it.
        We urge the Committee to ask Chairman Pai about his plan to follow
    the law and open up the set-top box market in a way that would truly
    benefit consumers.
    Ending the Harassment, Nuisance and Scams of Robocalls
        Nearly everyone hates robocalls and it remains one of the top
    consumer complaints we hear about at Consumers Union--we received more
    than 50,000 complaints about unwanted calls since we started asking the
    question online last year, and almost 750,000 consumers have joined our
    End Robocalls campaign which encourages major phone companies to offer
    free call-blocking tools to their consumers. Consumers Union also works
    to defend the laws protecting consumers from unwanted robocalls like
    the Telephone Consumer Protection Act (TCPA). Although the TCPA has
    been on the books for more than twenty-five years, the increase in
    unwanted calls, including fraudulent and scam calls, has reached record
    levels and is only growing. Consumers have every right to be
    frustrated, annoyed, and skeptical whether the government or the phone
    companies can help.
        The FCC stepped up last year, and former Chairman Wheeler called on
    the top phone companies to provide ``robust'' call-blocking technology
    to their customers at no charge. At Wheeler's request, more than thirty
    companies joined the Robocall Strike Force (RSF), led by AT&T's CEO,
    Randall Stephenson, to work together on solutions including call-
    blocking applications and anti-spoofing measures (caller-ID spoofing is
    where an incoming call's true identity is masked as a recognizable
    number or local area code). The RSF most recently convened in October
    of last year, and planned to meet six months later, in this coming
    April. At this time, we are uncertain if Chairman Pai plans to host the
    work of the RSF at the Commission.
        We are encouraged that Chairman Pai announced the inclusion of an
    anti-spoofing proposal to the FCC's March Open Meeting agenda. Under
    this measure, companies will be afforded greater freedom to block
    spoofed robocalls. Consumers Union supports action by the FCC to combat
    caller-ID spoofing, and we will continue to work with the Commission to
    reduce and eliminate robocalls, fraudulent or otherwise.
        We suggest asking Chairman Pai if he plans to host a future meeting
    of the Robocall Strike Force, so it may continue its important work on
    behalf of consumers with the FCC's support and cooperation. We also
    suggest asking whether he will push phone companies to promptly provide
    their consumers free, advanced robocall-blocking tools so that they can
    protect themselves from unwanted calls and scammers.
        We close with a note of appreciation for holding this important
    hearing overseeing the work of the FCC. Consumers deserve to know
    whether the Commission is working to create a telecommunications
    marketplace that promotes their interests and protects their
    pocketbooks. We stand ready to work with you, your fellow Senators on
    the Commerce Committee, and other stakeholders to address the issues we
    identified to help ensure all consumers have reliable access to
    affordable products and services, and are empowered to participate
    fully in the modern-day telecommunications marketplace.
                Respectfully submitted,

    Jonathan Schwantes,
    Senior Policy Counsel.

    Laura MacCleery,
    Vice President of Consumer Policy
      & Mobilization.

    cc. Members of the U.S. Senate Committee on Commerce, Science,
    and Transportation

        Senator Blumenthal. I want to ask you, first, with respect
    to the Time Warner-AT&T merger, your standard is a different
    one for reviewing mergers, in fact, taking account of the
    public interest. The parties have structured this deal so as to
    escape your review. The term of the day sometimes is rigged to
    escape your review, but I don't want to use that pejorative.
    Could you commit to the Committee that you will prepare an
    analysis based on the public interest standard of this merger?
        Chairman Pai. Well, Senator, the FCC would only apply the
    public interest standard to the merger if it were before us.
        Senator Blumenthal. I know that. But I'm asking you to do
    the analysis. You can say yes or no. Either you'll do it or you
    won't.
        Chairman Pai. Oh, Senator, do you mean prepare the public
    interest analysis to submit to Congress?
        Senator Blumenthal. To submit to the Committee.
        Chairman Pai. My only hesitation is that to the extent that
    there is no license transfer, there would be no facts before us
    to review, and so we wouldn't be able to opine with any
    expertise on what the transaction----
        Senator Blumenthal. Well, if the parties were willing to
    submit facts to you.
        Chairman Pai. Senator, if it's okay, I'd be happy to take
    it back and speak to our General Counsel's Office to see what
    the requirements are with respect to that and get back to you.
        Senator Blumenthal. OK. In the time so far that the Trump
    administration has been in office, you've, unfortunately,
    unwound many of the rules and regulations that, in my view,
    were designed to protect consumers. You've undone the enhanced
    transparency rules that ensure broadband ISP consumers know
    what type of service they're getting. You've withdrawn proposed
    reforms of the business data service market and pay TV set-top
    box market that would have saved consumers money. You've moved
    to block commonsense broadband privacy rules. You've undermined
    critical programs like Lifeline and E-Rate, and you've backed
    away from rules that lower the exorbitant rates for prison
    phone calls, as a number of my colleagues have remarked.
        I'm not really interested in what you've communicated with
    the Trump White House, but it does seem that you have adopted
    the playbook of diminishing rules that protect consumers and
    furthering the interest of big businesses. I'd like to know
    from you what possible rationale there can be for enabling
    cable companies to continue profiting by renting cable boxes--
    $20 billion a year in revenue to them--rather than permitting
    them to own those boxes when they could save money--$231 every
    year per family--especially after, in my view, the Congress has
    directed you to enable them to own those boxes.
        Chairman Pai. Thank you for the question, Senator. I
    believe, as I think many millions of Americans agree, that the
    right solution to this problem is not to double down on the
    1990s technology of the set-top box but it's to eliminate the
    box. So, in my view, the FCC would have been better off,
    looking forward, trying to figure out how to eliminate this
    hardware that simply adds cost and increases inconvenience for
    consumers and embrace the more app space approach, for example,
    that consumers use.
        Part of the concern I had with the set-top box proposal of
    my predecessor was one that was shared by Commissioner
    Rosenworcel and others on the Commission, and that's part of
    the reason why we preferred to look forward, so to speak, in
    terms of our regulatory approach as opposed to getting mired in
    some of the more intricate legal and policy quagmires of the
    previous approach.
        Senator Blumenthal. So you're unwilling to review your
    position?
        Chairman Pai. Well, Senator, obviously, we're always happy
    to review our position based on new facts and evidence that is
    placed before us. But we'd like to move forward for consumers
    rather than backward.
        Senator Blumenthal. Let me ask you on Net Neutrality--I
    assume that you are aware and will follow the obligations under
    the APA that you would have to begin a new rulemaking procedure
    if you were to modify the Net Neutrality rule.
        Chairman Pai. Senator, for any action that the FCC takes,
    as long as I am Chairman, we will comport with the
    Administrative Procedure Act, the Communications Act, and any
    other legal requirements that might be pertinent.
        Senator Blumenthal. My time has expired, and if I can
    engage in another round, I will. But I want to yield to my
    colleagues.
        The Chairman. Well, thank you, Senator Blumenthal.
        Next up is Senator Heller.

                    STATEMENT OF HON. DEAN HELLER,
                        U.S. SENATOR FROM NEVADA

        Senator Heller. Mr. Chairman, thank you, and thanks for
    holding this hearing. I want to thank the commissioners for
    being here today.
        I want to begin by thanking the Chairman for some of the
    changes that you've made on how the Commission operates so
    that, frankly, there's more transparency and openness in your
    process. Things like releasing the text of an Order before it's
    voted on--I think that's pretty fundamental. But I was always
    amazed that your predecessor didn't think that that was
    necessary. But I do think it's also important that Congress
    codify some of these changes in legislation so that the FCC
    maintains an openness from one administration to the next.
        Mr. Chairman, are there any other process reforms right now
    at the FCC that you're contemplating implementing?
        Chairman Pai. I think there are a number, Senator. Thank
    you for the question, first off. Senator--Congress--
    Commissioner O'Rielly--I keep giving you a promotion.
    Commissioner O'Rielly has outlined several dozen of them, and
    we are certainly looking at some of those.
        I've proposed a number of them, going back to 2013, for
    example, a very simple one: creating an online dashboard so
    that anyone, a Member of Congress, a member of the American
    public, can see how many consumer complaints are pending at the
    Commission or how many petitions for reconsideration are
    pending, what's the meantime to disposition. Those kinds of
    basic facts, I think, would be helpful for people to know.
        There are a lot of things that we can do, and we're
    committed to doing them as soon as we can if we can spare the
    bandwidth, so to speak.
        Senator Heller. Commissioner O'Rielly, I know that this has
    been an important issue for you.
        Commissioner O'Rielly. Very much so. Thank you for the
    question. Commissioner--Chairman Pai--not to demote you----
        [Laughter.]
        Commissioner O'Rielly.--has been wonderful in leading a
    number of efforts in reforming our internal processes. There
    are more ideas. I've put together 25. We probably have a good
    17 to go, and I've been creating new ones on a weekly basis.
        Delegating authority is an important issue to my
    colleagues. We're trying to figure out how to un-delegate
    issues that have been sent down to the staff to make decisions.
    I counted last year that nine times as many items were done by
    staff than were voted on by commissioners, and we'd like the
    right and ability to vote on some of those without delaying or
    disrupting the process.
        Another idea that I've put forward that I think is
    important is to include sunsets in our rules, automatic
    sunsets, so that we would be forced to review the item, not to
    necessarily get rid of the rules, but an opportunity for a
    fresh look at them every couple of years, whether they stay on
    the books. A number of rules have outlived their longevity. We
    have a couple of procedures to deal with them, but they aren't
    getting a full review, in my opinion.
        Senator Heller. Thank you, Commissioner.
        Chairman, you were in Carson City a couple of years ago,
    and I certainly do appreciate you spending some time in Nevada.
    We've had a discussion on this particular issue, and I want to
    share some statistics with you. These statistics come from a
    range of sources, the FCC, the wireless industry groups,
    Department of Commerce, Pew Research--we can go down that list.
        It says here that 99.9 percent of Nevadans have access to
    mobile broadband service. It also says that 98 percent of
    Nevada has access to wireline service. You know, I really
    question these kinds of numbers and these kinds of statistics.
    Just briefly, Nevada is 110,000 square miles, and I know that
    probably 85 percent of them live within 10,000 square miles. So
    we've got 100,000 square miles out there that are quite rural.
        I'll give you an example. We have a county commissioner in
    a county called Eureka. He's also the state veterinarian, and
    he also is a rancher. So in a conversation with him, he's
    constantly carrying two phones along with him, hoping that one
    or the other has service. And, obviously, when he has problems
    or issues as a state veterinarian, if he doesn't have access,
    clearly, that could become a problem.
        Not only that, but he's had opportunities where he could
    have called in a public--or a fire. Several times, where a
    public lands fire broke out on the range lands, and he just
    didn't have access to let the emergency crews--so I think that
    does pose a public safety risk. In my view, I think we need to
    cut red tape and bureaucracy that delays the deployment of
    this, lift regulatory burdens that prevent investment, and find
    ways to have access to unserved and underserved areas.
        Now, you and I agree on this. This isn't anything that is
    new. I've been championing these policies since I've been on
    this committee and have even written legislation. I'll continue
    to do so as we go forward. But do you have any ideas on what we
    can do to speed up deployment in these areas?
        Chairman Pai. Absolutely, Senator, and in response to
    Senator Cortez Masto, one of the things that would be critical
    in Nevada would be speeding up the deployment on or adjacent to
    Federal lands, because I know Nevada is disproportionately
    constituted with Federal land. Another thing would be making
    sure that wireline deployment is--the business case for it is
    easier, and that involves, in some cases, you know, dig-once or
    other policies like that that would enable Nevadans to get
    access.
        Another piece of it could be fixed wireless, getting more
    spectrum into the commercial marketplace to enable fixed
    wireless providers who are doing a terrific job providing
    connectivity in some areas where fiber simply is not economical
    to deploy. I mentioned that I saw some of that outside of Reno,
    and I think there's great potential there, too.
        To me, to be honest, I don't care what technology is used
    to connect folks in Nevada. We want to bring all of them to
    bear in the most fiscally responsible way possible to make sure
    that they, like every other American, have access to the
    network.
        Senator Heller. Chairman, if an infrastructure bill
    includes broadband, which I certainly hope it does, how could
    you deploy that? How could you make sure that the funding
    mechanism gets to the right place, where it's needed the most?
        Chairman Pai. I think if Congress saw fit to include it in
    the infrastructure plan, my humble suggestion would be to allow
    some of that money to be channeled into the FCC's existing
    programs, with respect to Universal Service Fund distribution,
    because we've got a pretty good program that we administer to
    allow rural carriers and others to deploy some of these
    networks. So instead of having to reinvent a wheel or create a
    new agency, you could use the existing mechanisms administered
    by our professional staff, who are terrific, to get the biggest
    bang for the buck, so to speak.
        Senator Heller. Thank you very much.
        Mr. Chairman, thank you, and to the Commissioners, thank
    you very much for being here today.
        The Chairman. Thank you, Senator Heller.
        Senator Cantwell?

                   STATEMENT OF HON. MARIA CANTWELL,
                      U.S. SENATOR FROM WASHINGTON

        Senator Cantwell. Thank you, Mr. Chairman, and thank you to
    the Commissioners for being here.
        Chairman Pai, I wanted to ask you about media
    consolidation. Obviously, we've just been through this time
    period that if we needed an advertisement for why we needed to
    have diverse sources of media, this is it. So I wanted to get
    your thoughts on the cross-ownership issue of TV stations,
    radio stations, owning newspapers in the same markets, and what
    direction we should be going in.
        Chairman Pai. Thank you for the question, Senator. In some
    cases, our media ownership rules have been on the books for
    several decades, and so the FCC continually has to determine if
    they remain in the public interest in the current year. One of
    my concerns, especially in smaller markets, is that as
    newspapers and broadcast TV and radio stations are struggling
    and a lot of them are going out of business, are there ways
    that we can help them stay in business and do what they do
    best, which is cover local news. And if it is more efficient
    for them to be able to distribute that news--collect news
    together and distribute it on different platforms, that could
    help them stay in business and provide a vital source of
    information for localities.
        Obviously, there are other considerations as well in terms
    of consolidation that we have to take into account, and so
    that's going to be part of what we're discussing in the media
    ownership context.
        Senator Cantwell. So in the context of media consolidation,
    would you say that you are aggressive or neutral or, you know,
    negative on making sure that further consolidation happens?
        Chairman Pai. Well, not to be glib, Senator, but I can't
    really describe an adjective. What I can tell you is that I
    firmly believe that our rules should match the realities in the
    marketplace that we're in, and that includes making sure that
    we take account of the state of the industry, the market
    structure, and the like to ensure that there's a competitive
    vibrant marketplace that serves consumers.
        Senator Cantwell. Well, I'm looking at your record, and
    this is why I'm concerned, because in March 2013, you voiced
    support for pursuing a resolution of disapproval against the
    FCC's media ownership rule and urged further consolidation, and
    you called for a public vote on the FCC media ownership rules
    that would have actually increased media consolidation. So now
    that you're the Chair, we really want to understand this and
    understand where you're going.
        One of the things I think would help in this is--because
    we've had a lot of dialog here as a committee, and, obviously,
    the Committee has changed over a long period of time as we have
    watched this issue. The FCC does have a data collection of
    information, so the 2015 data about this issue has not been
    released. So will you commit to making sure that you won't do
    anything ahead of publishing this data and publishing it in
    2017 before any changes are proposed in media consolidation?
        Chairman Pai. Senator, to be honest, I'm obviously just 6
    weeks on the job, and I haven't yet had occasion to look at the
    status of that 2015 or 2016 data collection. But I'd be happy
    to work with you on that.
        What I can say, however, is that based on the evidence
    that's already in the record, we know, for example, that
    there's literally no evidence to support the newspaper-radio
    cross-ownership, and everybody has conceded that. The Third
    Circuit Court of Appeals has told us that some of these
    regulations are no longer necessary. So we want to make sure
    that, based on whatever the facts on the record are, we take
    the appropriate action that's consistent with the court's
    instructions.
        Senator Cantwell. Great. So there is what's called Form
    323, so it's an FCC tool----
        Chairman Pai. Right.
        Senator Cantwell.--and that's about data on ownership. We
    want to make sure that people are complying with it, that
    you're getting the information, that we're getting the
    information, and that we're reviewing it. We definitely want to
    have many voices in the market, and, obviously, we have a
    different thing that's going on here, which is the entire
    transitioning of, you know, the sector and the industry and how
    it moves.
        I'm always telling my staff there's a reason why Ma Bell
    doesn't exist anymore. But the problem is everybody says,
    ``Who's Ma Bell?'' You know, there has been that much
    transition and young people--so what we want to make sure we're
    getting right is that while we're talking about the
    transformation of what's happening in the newspaper industry,
    we don't confuse it with, oh, we must allow consolidation,
    because if you allow consolidation, then they'll have
    resources. We want them to flourish, as you were saying, on
    many platforms and not have a very hierarchical structure where
    one entity owns all the media and owns all the discussion. We
    want many resources and information.
        So if you will help us take the steps to ensure that these
    broadcasters are accounting for the ownership and then share
    that data with us before you guys make a decision, that's what
    we're after.
        Chairman Pai. Absolutely. Just as in the wireline context,
    with respect to Form 477, when it comes to Form 323, we want to
    make sure that we've got accurate data as well. That's the
    predicate, obviously, for the FCC making an informed decision,
    and so we'd be happy to work with you going forward.
        Senator Cantwell. Thank you.
        Thank you, Mr. Chairman.
        The Chairman. Thank you, Senator Cantwell.
        Next up is Senator Hassan.

                   STATEMENT OF HON. MAGGIE HASSAN,
                    U.S. SENATOR FROM NEW HAMPSHIRE

        Senator Hassan. Thank you, Mr. Chair, and thank you to all
    the witnesses for being here. I really have appreciated this
    discussion. I'm also new to the Committee and new to some of
    these issues, so I appreciate it very much.
        Mr. Pai, thank you for meeting with me prior to today's
    hearing, and I really look forward to working with you. I'm
    pleased that on the national level, we have committed to
    ensuring that our first responders reap the benefits of new
    technologies by providing them with a public safety network
    known as FirstNet. If done correctly, this will ensure seamless
    communication for public safety all over the country, enabled
    with the latest data, video, radio, and wireless capabilities
    possible.
        As you know and as we've discussed, New Hampshire is a
    state with unique connectivity challenges given our rural areas
    and our mountainous terrain. I'll take my mountains over West
    Virginia's. No offense to my West Virginian colleagues. But
    companies in the Granite State have been exploring alternatives
    to the national plan so that they can keep all options on the
    table and make the best decisions for our state when the time
    comes, and it's something you and I just discussed.
        Procedurally, once a state decides to opt out of the
    national network, their proposal will have to be reviewed and
    approved by the FCC. And as I understand it, you have an open
    proceeding on this at the Commission right now. Folks in my
    state have raised concerns that they will only have one
    opportunity to get their proposal right. If the FCC declines
    it, their reading of the statute is that they have no
    opportunity to revise and resubmit, which seems not a
    particularly good way of moving forward, from my perspective.
    As a former Governor, I feel a state deserves to learn where
    they fell short and be given a second opportunity to comply
    within reason.
        So what are your thoughts on this, and what, specifically,
    will you do as head of the FCC to ensure that states are given
    a fair shake when it comes to making decisions about opting
    out?
        Chairman Pai. Thank you for the question, Senator, and for
    the generous hospitality you extended to me during our visit.
    With respect to FirstNet, the FCC's rule, as you know, is a
    somewhat narrow one, which is to facilitate interoperability
    between the national network and the state network for any
    states that choose to opt out or seek to opt out. The FCC, as
    you mentioned, proposed rules last year to try to flesh out
    what our role should be.
        Now, the legislation, as I read it, does state that once
    the FCC makes a determination that it will not approve an
    application, that decision is final. But I believe, personally,
    that opt-out states should have a full and fair opportunity,
    like any applicants to the FCC, to make sure that they have a
    fair chance to present their case that their network will
    interoperate with the national network.
        So I hope that they will have the opportunity to amend or
    to modify, in consultation with us, their application, should
    their apparent plans seem to conflict with the interoperability
    mandate that we've got.
        Senator Hassan. Thank you. Again, a question to Chairman
    Pai--and, Mr. Chair, if there's no objection, I'd like to enter
    a recent opinion piece by former FCC Commissioner Michael Copps
    into the record. It's titled ``It's Urgent that Ajit Pai Voices
    His Support for a Free Press'' and was published in The Hill on
    Monday.
        The Chairman. Without objection.
        Senator Hassan. Thank you.
        [The information referred to follows:]

                                    The Hill

         It's urgent that Ajit Pai voices his support for a free press

          By Michael Copps, Opinion Contributor--03/06/17 08:40 AM EST

        No citizen should be denied the news and information needed to
    participate in our democracy. Our freedoms of speech and expression are
    inextricably linked to freedom of the press and an uninhibited,
    competitive, and vibrant marketplace of ideas. But freedom of the press
    is in jeopardy from a president who repeatedly calls our media ``the
    enemy of the American people,'' and by others in government who are
    failing in their duty to protect our liberties.
        The new chairman of the Federal Communications Commission, Ajit
    Pai, has been an eloquent spokesman for freedom of the press. I'm
    confident he agrees that we should not foreclose any points of view
    unless they pose a threat of violence. Just last year, he said, ``I
    think it's dangerous, frankly, that we don't see more often people
    espousing the First Amendment view that we should have a robust
    marketplace of ideas where everybody should be willing and able to
    participate.''
        No one person--not even the president--should have a monopoly on
    our national discourse. Pai also once said, ``In my view, anyone who
    has the privilege of serving at the FCC--any preacher with a pulpit, if
    you will--has the duty to speak out whenever Americans' First Amendment
    rights are at stake.''
        The FCC is an independent agency of the U.S. Government, created by
    Congress to ensure our Nation has a world-class communications system
    that is available and affordable to everyone. The commission is the
    country's primary authority for enforcing communications law. It also
    provides public interest oversight for telecommunications and promotes
    technological innovation.
        America's First Amendment rights are clearly in peril. When the
    President of the United States calls journalists enemies of the
    American people, when his top advisors call journalists ``the
    opposition party'' and promise that the President's battle with the
    press will only ``get worse,'' when the White House press secretary
    bars journalists from official briefings, every citizen should be
    alarmed.
        Surely the media have much room for improvement. The consolidation,
    commercialization, and ``skim the surface'' journalism that mark much
    of contemporary journalism do not serve us well. The FCC could help fix
    that, but not by going down the road the president is racing. Declaring
    the press the enemy and cutting off its legs is exactly the wrong way
    to go. Self-government only works when people are sufficiently
    informed. The First Amendment must not fall victim to the Trump
    presidency.
        Unfortunately, the pulpit to protect the press can also be a
    platform to suppress it. Some presidents, like Richard Nixon, sought to
    use the FCC to punish those exercising First Amendment rights. We can
    never let that happen again.
        Appointed to the FCC chairmanship by President Trump, Chairman Pai
    is in a difficult situation. But this is a time requiring a ``profile
    in courage.'' Three years ago, then-Commissioner Pai said, ``The
    government has no place pressuring media organizations.'' Chairman Pai
    needs to repeat that now, from his new position of authority. His voice
    would be heard around the Nation. And it would let the new
    administration know that the FCC is both independent and determined to
    do its duty.
        I don't believe the election changed Pai's convictions. I certainly
    hope not. I hope he agrees with me that the Constitution is not a
    partisan issue. When good people stay silent, bad things happen. We
    must not let censorship, whatever its source, win. Mr. Chairman, we
    need to hear from you now.
        Michael Copps (@Coppsm) served as a Democrat on the Federal
    Communications Commission from 2001-11, and as acting chairman for a
    period in 2009. He is a special adviser for Common Cause, a nonprofit
    group in Washington, D.C.

        The views expressed by contributors are their own and are not the
    views of The Hill.

        Senator Hassan. Chairman Pai, in this piece, former
    Commissioner Copps quotes you as saying--and here's his quote
    of you--``In my view, anyone who has the privilege of serving
    at the FCC, any preacher with a pulpit, if you will, has the
    duty to speak out whenever Americans' First Amendment rights
    are at stake.'' And you agree that's a quote of yours?
        Chairman Pai. That is correct.
        Senator Hassan. And I note that your official biography
    says that you're an outspoken defender of First Amendment
    freedoms. So there has obviously been over the course of recent
    months clear tension between members of our nation's press and
    the current administration, and Senator Udall asked you a
    question a little while ago, just asking you whether you agreed
    or not with the statement that the media is the enemy of the
    American people.
        It seemed to me that you kind of declined to answer that,
    and I'd just like to give you another chance, because it seems
    to me if you're an outspoken defender of the free press, that
    should be a pretty easy question for you.
        Chairman Pai. Senator, to the contrary. As I said to your
    predecessor, I agree that every American has a full and fair
    opportunity to exercise and enjoy the rights protected by the
    First Amendment to the Constitution, and I've consistently
    spoken out about that in the context of the 2014--or 2013,
    rather, critical information needs study that the FCC was----
        Senator Hassan. So yes or no? Do you agree with the
    statement that the President made that the media is the enemy
    of the American people?
        Chairman Pai. Well, Senator, there's a larger political
    debate here that I don't want to weigh into. All I can tell you
    is that I personally believe that every American enjoys the
    First Amendment freedoms that he or she is granted under the
    Constitution.
        Senator Hassan. Thank you. I wish your answer had been a
    little different. I'm out of time. Thanks.
        The Chairman. Thank you, Senator Hassan.
        Senator Gardner?

                    STATEMENT OF HON. CORY GARDNER,
                       U.S. SENATOR FROM COLORADO

        Senator Gardner. Thank you, Mr. Chairman.
        Thank you to the witnesses for your time and testimony
    today. I appreciate your service, particularly the work that
    you do with this committee and a very long hearing that you're
    patiently answering a number of questions through, so thank you
    very much for that.
        Chairman Pai, it's great to see you in your new position.
    Congratulations again on your appointment as Chairman, and your
    re-nomination as Commissioner as well.
        As you, Commissioner O'Rielly, and Commissioner Clyburn
    have heard me discuss before, we've had two orphan counties in
    Colorado, in southwestern Colorado, that were receiving
    satellite broadcasts of New Mexico television instead of
    Colorado television. I'd like to thank all of you at the
    Commission as well as the Media Bureau for your decision to
    grant La Plata County's market modification petition. Thank
    you. It's a huge development for Colorado that puts my
    constituents in the southwest one step closer to accessing in-
    state television broadcasts. So thank you very much for your
    work on that.
        The other county in the southwest corner, Montezuma County,
    intends to file a very similar petition for market
    modification, and I would just like your commitment that the
    Commission will work expeditiously to consider that request as
    well when filed.
        Chairman Pai. Senator, with the caveat that, obviously, any
    consumers who are forced to watch Denver Broncos football are
    being burdened, nonetheless, we will give the appropriate
    treatment to Montezuma's application.
        Senator Gardner. Now, Mr. Chairman, I'll remind you where
    Kansas' water comes from.
        [Laughter.]
        Chairman Pai. If I could revise and extend my remarks,
    Senator, that would be appreciated.
        Senator Gardner. Thank you. Chairman Pai, I've seen that
    initial comments are due today for the Commission's--and, by
    the way, in the last question, I think every Commissioner was
    agreeing affirmatively, so thank you. I've seen that initial
    comments are due today for the Commission's December public
    notice regarding streamlining deployment for small cell
    wireless infrastructure. Reducing barriers to the siting and
    deployment of such infrastructure is critical to ongoing
    wireless buildouts and to the future growth of 5G wireless
    service.
        Can you commit that the Commission will pursue a thorough
    review and timely consideration of siting and deployment
    issues?
        Chairman Pai. Absolutely, Senator. We will do that.
        Senator Gardner. Thank you, Mr. Chairman. Commissioner Pai,
    again, there are many regions of my state that do not have
    access to adequate broadband service and remote areas of my
    state without any access to broadband at all, and I appreciate
    the time that you have spent in Colorado traveling with me up
    and down the front range and other areas of Colorado.
        One of the most important goals of our national
    telecommunications policy should be to close the urban-rural
    broadband divide. There are many technologies that could help
    in this effort, including fiber and wireless service, among
    others. But I'd like to know if you believe that satellite
    could also help close the urban-rural divide?
        Chairman Pai. Senator, I do. I think a lot of satellite
    companies have been very innovative in boosting the speeds that
    their services are capable of providing and reducing the
    latency, which allows them to be much more competitive with
    their terrestrial brethren, and it's part of the reason why in
    the context of the Connect America Fund reforms we wanted to
    make sure that we didn't put a thumb on the scale of one
    technology like fiber to the exclusion of all others.
        As I said in response earlier to a question, we want all
    these technologies to be brought to bear and let the consumer
    decide for himself or herself which one best suits the needs of
    the people.
        Senator Gardner. Thank you, Chairman Pai.
        Commissioner O'Rielly, same question. Do you believe
    satellites can play a role in closing the urban-rural divide?
        Commissioner O'Rielly. Absolutely. I want to make sure that
    satellite has a fair chance to compete for all of the programs
    that we have at the Commission. I worry and sent to them in a
    recent item that I thought it was a little tilted toward fiber
    instead of satellite. I think we want to give everyone--every
    different technology--I believe in technology neutrality. I
    think it's a core principle of the Commission and should be in
    our decisions.
        Senator Gardner. Thank you very much.
        Chairman Pai, I just want to echo something that Senator
    Wicker had said earlier today. I appreciate the work that you
    and the Commission did on the Mobility Fund Phase 2 to ensure
    that rural areas are not left behind when it comes to mobile
    wireless service. I also want to support the Commission's
    decision to include a challenge process for Form 477 data and
    will be closely watching the comments on that proceeding as
    well. But thank you for agreeing with--or the work you did
    during your conversation with Senator Wicker. I wanted to
    highlight that as well.
        Senator Heller was here talking about carrying two cell
    phones. I think the state veterinarian in Nevada had to carry
    two cell phones. I look at the maps, and I see the maps where I
    live in eastern Colorado, and I'm only supposed to be able to--
    would only need to carry one phone, but in a lot of those
    eastern areas, we need two phones as well, so thank you--
    eastern Colorado area. So thanks very much.
        Chairman Pai. Thank you, Senator.
        The Chairman. Thank you, Senator Gardner.
        Next up is Senator Cruz.

                      STATEMENT OF HON. TED CRUZ,
                        U.S. SENATOR FROM TEXAS

        Senator Cruz. Thank you, Mr. Chairman.
        Commissioners, thank you for being here. This is an
    important and exciting time at the Commission, and I
    congratulate the Chairman on your new appointment and look
    forward to working closely with you as you continue to
    implement innovative policies at the Commission to expand
    competition, to create an environment where jobs and economic
    growth can flourish, and to empower consumers.
        Chairman Pai. Thank you, Senator.
        Senator Cruz. My top priority in the Senate is economic
    growth. Jobs and economic growth are consistently the number
    one concern I hear from Texans. In my view, the biggest
    regulatory threat to economic growth on the internet is posed
    by the FCC's Open Internet Order, and as Commissioners are well
    aware, I have been outspoken as an opponent of that order.
        I believe that regulating the Internet as a Title II public
    utility is contrary to the text of the law and was an illegal
    power grab, and I also believe it is dangerous. The internet
    has flourished because it has been an environment free of the
    meddlesome and burdensome regulation, enabling entrepreneurs to
    experiment, to innovate without seeking prior approval of
    government regulators. Indeed, I have called the so-called Net
    Neutrality Rule ``Obamacare for the internet,'' and I will note
    that the results have not been encouraging.
        In a 2015 op-ed entitled ``This Is How We Will Ensure Net
    Neutrality,'' former Chairman Wheeler wrote when referring to
    Title II that, ``All of this can be accomplished while
    encouraging investment in broadband networks. To preserve
    incentives for broadband operators to invest in their networks,
    my proposal will modernize Title II, tailoring it for the 21st
    century in order to provide returns necessary to construct
    competitive networks.''
        Now, I'm always concerned when a government official is
    trying to determine how to regulate the profits and incentives
    of private companies. But a recent 2016 Domestic Broadband
    Capital Expenditure Survey conducted by Hal Singer shows that,
    ``Of the 12 firms in the survey, eight experienced a decline in
    domestic broadband CapX relative to 2014, the last year in
    which the ISPs were not subject to the common carrier
    regulations. Across all 12 firms, domestic broadband CapX
    declined by $3.6 billion, a 5.6 percent decline relative to
    2014 levels.'' A regulatory regime that is reducing the
    investment in broadband is not a regulatory regime that is
    looking out for the interest of consumers.
        Chairman Pai, what is your view on the Open Internet Order
    and how the Commission should deal with that Order?
        Chairman Pai. Thank you for the question, Senator. I favor
    a free and open internet. I think that the internet, as it has
    developed, has been one of the greatest free market innovations
    in history, and it has developed--and thanks in part to light
    touch regulation that started in the Clinton administration on
    a bipartisan basis and continued thereafter for about two
    decades, and it has produced tremendous benefits for the
    American people, both as consumers and as entrepreneurs.
        My concern is with the particular legal framework that the
    FCC adopted to regulate the internet, and to the extent that,
    as you pointed out, it is harming investment by broadband
    providers, not just the big ones which you mentioned, but also
    the small ones. We have a number of declarations under penalty
    of perjury that have been submitted by wireless ISPs, for
    example, that they're holding back on investment, precisely
    because of these rules.
        That's my concern. We all want to preserve the core value
    of the free and open internet, and we want to maximize the
    incentive to keep building these networks of the future, and
    that is something that we're going to strive to do in the time
    to come.
        Senator Cruz. Well, Chairman Pai, I would encourage you and
    the Commission to revisit that Order and to rescind it in its
    entirety. I believe you would have the support of a majority of
    this committee and substantial support in Congress, and I
    believe if the Internet is going to be regulated and regulated
    as a public utility, that is a decision that should be made in
    the first instance by the U.S. Congress rather than taking
    legislation designed for a very, very different context and
    applying it to the internet.
        Let me shift to a second topic because my time is expiring.
        Commissioner O'Rielly, you stated in a 2015 blog post that,
    quote, ``By some accounts, the Federal Government currently
    occupies, either exclusively or on a primary basis, between 60
    percent and 70 percent of all spectrum in the commercially most
    valuable range between 225 megahertz and 3.7 gigahertz, which
    comes to approximately 2,417 megahertz.''
        What steps can this committee take to incentivize Federal
    users, especially the Department of Defense, to make more
    spectrum available for commercial use? Should Congress consider
    allowing Federal agencies to keep more of the proceeds from FCC
    incentive auctions? Should Congress consider spectrum fees,
    which is another solution that's been suggested? How can we get
    more of that spectrum in commercial hands to produce thousands
    more high-paying jobs?
        Commissioner O'Rielly. Yes. So incentives have been
    proposed by a number of my colleagues in the past. I've argued
    that the carrots are wonderful, but you would require a
    significant amount of portion from the spectrum auction
    proceeds to convince them to give back spectrum. I've advocated
    agency spectrum fees as a mechanism to put an opportunity cost
    on their holding of particular licenses for particular bands,
    and by doing so, you make them look at what do they really need
    to complete their mission as an agency.
        I don't want to discourage all the good work that the
    agencies do. But I do want them to efficiently only hold the
    spectrum that they need. I think the mechanism to go about it
    is to put a cost on the spectrum. I'll admit it would be
    something we could do conservatively, because it would be hard
    to price. But there are ways to go about doing so, and that
    would be a mechanism that I would favor.
        Senator Cruz. Thank you very much.
        The Chairman. Thank you, Senator Cruz.
        Senator Sullivan?

                    STATEMENT OF HON. DAN SULLIVAN,
                        U.S. SENATOR FROM ALASKA

        Senator Sullivan. Thank you, Mr. Chairman.
        Mr. Chairman, congratulations, Commissioner Pai, and it's
    good to see all of you. You know, I just wanted to comment very
    quickly on the number of my colleagues here, both sides of the
    aisle, who are talking about the independence of the agency,
    the independence of you in your Chairman position. I couldn't
    agree more, and I think that's important, so I'm glad the topic
    has come up.
        I also think you shouldn't use as the example of
    independence the last Chairman, who a number of us viewed, you
    know, more of a lieutenant of the White House than an
    independent agency. So when my colleagues on the other side of
    the aisle talk about your independence from the Trump
    administration, we want you independent, but don't use the last
    Chairman as a model, because I don't think--a lot of us don't
    think he was very independent at all.
        I want to first of all thank all of you. I know you took a
    lot of time working hard on the Alaska plan. I know you
    mentioned it, Chairman Pai, in your opening remarks. It was
    very apparent that you all dug into that and worked hard with
    your staff.
        Are there any lessons learned you can mention to me or my
    constituents on challenges or opportunities in Alaska that you
    learned from kind of working on that issue? I know it wasn't an
    unanimous Order, but, still, you guys were all very well
    intentioned. You saw some of the extreme challenges we had up
    there. I'd welcome any comments on that for just kind of future
    reference, because there was so much good work done on that.
        Chairman Pai. Absolutely, Senator. First, I want to thank
    my colleagues for working collaboratively. Even if we didn't
    agree on every jot and tittle, I think we got a product across
    the finish line that hopefully will benefit Alaskans. One of
    the things that I think I draw from it is just that Alaska's
    vastness and complexity is so different from anything you see
    in the lower 48. I mean, I've been in a fiber trench seeing the
    permafrost in Fort Yukon and have been sinking in quicksand
    outside of Barrow, and I've seen the mountains of Cordova and
    how you've tried to deploy a next-generation network in a place
    that's so topographically challenging is just--it's just mind
    numbing, the complexity of it.
        So we need to make our rules as simple as possible, but
    also reflect the difficulties of deploying in Alaska, and
    that's not going to be an easy square to circle, so to speak.
    But we've got to do our best to do it, because Alaskans deserve
    digital opportunity just as much as anyone in the lower 48.
        Senator Sullivan. Well, I appreciate that sentiment. Any
    other Commissioners on just lessons learned from that?
        Commissioner Clyburn. My visits to Cordova, which is
    beautiful, and Kotzebue and some of the other remote villages--
    it just underscored the fact that telemedicine and other types
    of opportunities--the infrastructure needed to support that--is
    so critical. You should not have to get up on that plane,
    sitting in the cockpit next to the pilot--which, again, I need
    therapy still from that--to get help. There are opportunities
    that are unique to Alaska that we need to enable. So, for me,
    that visit a few years ago really drove home the need for a
    targeted tailored approach to delivery of services.
        Senator Sullivan. Right. Thank you.
        Commissioner O'Rielly?
        Commissioner O'Rielly. I would agree with my two
    colleagues. They hit the nail on the head. Alaska is so
    different, so unique that I was willing to work on projects
    that were just tailored to Alaska. When other states have said,
    ``Oh, we're unique,'' it's not any comparison to what happens
    in Alaska and what they're forced to face with such a short
    building cycle.
        I agree also with Commissioner Clyburn in terms of
    telehealth. What they're able to do with very small dollars in
    remote parts of the state is very impressive. It's a model I
    called for when I returned from my visit, that we should look
    elsewhere. Other places using telehealth and telemedicine are
    really eating up some significant dollars, whereas Alaska has
    been very efficient and addressed the issue very thoughtfully.
        Senator Sullivan. Let me ask a related question to that.
    There was some discussion earlier on in the hearing about
    interagency cooperation, and I'm just interested--whether it's
    E-Rate or rural healthcare programs or, as you mentioned,
    Department of Transportation roadbuilding with cable, do you
    need additional authorities from the Congress as an independent
    agency to make sure that you're working closely, say, with the
    Department of Education? I talked to Secretary DeVos about this
    on tele-education, or telehealth with the HHS Secretary.
        How much are you doing that, and do you need additional
    authorities from the Congress to be able to do that in a much
    more robust manner? Because I think, as you saw in the hearing
    today, everybody agrees that's a good idea. You agree it's a
    good idea. But what do we need to do to help you do that better
    with more legal authority?
        Chairman Pai. That's a good question, Senator. To be
    candid, I'm still getting my feet wet, so to speak, in my new
    role, and part of that involves liaising with my counterparts
    at other agencies. So thus far, I haven't seen any legal or
    other impediment to being able to reach out to some of my
    counterparts. But if and when we do encounter some barrier like
    that, I'll be sure to let you know, because the last thing we
    want is for agencies not to be steering in the same direction.
        Senator Sullivan. Well, when you get your feet settled, if
    you can get back to us on that, I think you'd see broad
    bipartisan support for enhancing your ability to do that.
        Thank you, Mr. Chairman.
        Commissioner Clyburn. Oh, I'm sorry.
        Senator Sullivan. I'm sorry. Commissioner?
        Commissioner Clyburn. Senator, I just wanted to let you
    know that we are attempting to heal ourselves, too. We, a
    couple of years ago, established a Connect to Health Task Force
    that is attempting to do that, to work with other agencies like
    HHS and other departments to ensure that there are no barriers
    when it comes to providing services that are so vital to our
    community. So I just wanted to let you know that where we can,
    we are doing so.
        Senator Sullivan. Great. Thank you.
        Thank you, Mr. Chairman.
        The Chairman. Thank you, Senator Sullivan.
        Senator Johnson?

                    STATEMENT OF HON. RON JOHNSON,
                      U.S. SENATOR FROM WISCONSIN

        Senator Johnson. Thank you, Mr. Chairman. Again, I want to
    thank all the witnesses.
        Congratulations, Commissioner Pai.
        We all agree that we want greater innovation, we want
    expansion and greater access to high-speed broadband. I think
    one of the things that inhibits that is all the rhetoric, the
    slogans, the buzz words that I'd want to try and cut through a
    little bit. I know Net Neutrality sounds great, and in trying
    to convey why that harms investment and innovation, I've come
    up with an analogy, and I want to run this by you to see if
    this is pretty accurate.
        Let's say a group of neighbors want to build a bridge over
    a creek so they can cross over and talk to each other a lot.
    But then they find out it's really for a neighborhood, maybe a
    dozen people. But then they find out that the government, the
    local government, is going to require that that bridge is open
    to the entire community of a million people. No prioritization
    whatsoever. They don't get to cross first to go see their
    neighbor. A million people can come onto their property, ruin
    their lawns, and walk over that bridge.
        Isn't that kind of a similar analogy? Is that a pretty good
    analogy in terms of what Net Neutrality is all about? Not
    allowing, for example, a company that is going to invest
    billions of dollars in the pipeline, not allowing them to sell
    or prioritize--for example, oh, I don't know, people that want
    to--doctors that want to prioritize distant diagnostics,
    they're going to have to share that same pipeline--not
    prioritization with--for example, people streaming illegal
    content or pornography. Tell me where that analogy is maybe not
    accurate.
        Chairman Pai. Senator, I think you've put your finger on
    one of the core concerns, which is that all of us favor a free
    and Open Internet where consumers can access lawful content of
    their choice. We also want to incentivize the construction of
    these networks, which requires massive capital expenditures,
    especially as we're going into the future with 5G networks and
    the like. So how to balance those concerns is something that I
    think people of good will can disagree on. But our goal is
    obviously to make sure, to use your analogy, that those bridges
    continue to be built, that they continue to be maintained and
    upgraded as traffic modernizes over time.
        Senator Johnson. In my example, I don't think too many
    neighbors would chip in the money to build that bridge when
    they realize they're not ever going to be able to use it or
    certainly not get priority on it.
        Let's talk a little bit about privacy rulemaking as well.
    Again, a lot of buzz words--opt-in, opt-out. Let's cut to the
    chase. What is fair about having different providers with
    different rules in terms of opting in versus opting out of the
    data collection and use? And what I'm really talking about is
    the fact that it's that data collection, that data use, that
    has allowed the internet to flourish and basically be free to
    consumers.
        Chairman Pai. Thanks again for the question, Senator. I
    think the principles that we need to embrace are twofold.
    Number one, as a general matter, but especially in this
    context, we need to make sure that there's a level playing
    field in terms of anyone who is competing in the online space;
    and, number two, the consumers have a uniform expectation of
    privacy. When they go online, they shouldn't have to be lawyers
    or engineers or technologists to figure out the regulatory
    classification of the entity that's holding their sensitive
    information. So our goal is, obviously, to vindicate that
    consumer preference by applying an even regulatory set of
    requirements to everybody who's competing in the space.
        Senator Johnson. Again, the point I want to make is if we
    put everybody on the level playing field and had opt-in, most
    people wouldn't allow their information to be shared--what
    would that do in terms of cost of internet, for example?
        Chairman Pai. I think the FTC has done a lot of work in
    this area, and they've struck that calibration, I think,
    appropriately, which is to say consumers expect their sensitive
    information to be opt-in and their not so sensitive information
    to require opt-out. So I think that's one of the things that
    has allowed the internet economy, according to the FTC and the
    experts over there, to thrive.
        Senator Johnson. Commissioner O'Rielly, I enjoyed our
    meeting yesterday and we had this similar conversation. But I
    was also interested in the column you wrote, and this is eye-
    popping, that the cost of active information collection at the
    FCC is approaching a billion dollars a year, $798 million. Just
    talk a little bit about that in my remaining 45 seconds.
        Commissioner O'Rielly. Sure. We just did a snapshot to
    alert people what is actually happening. We have extensive
    collection mechanisms at the Commission. They aren't reviewed
    often enough, and now there are 73 million hours a year and
    $800 million annually for those, just the collection.
        We've talked to small rate of return carriers. We have 100
    filings a year, and that's just not one person in an office
    filing something to the Commission. That requires a consistent
    portion of their resources to try and answer different things
    to the Commission. That keeps them from serving their
    customers, providing new services. So I think that's extensive,
    and we should look at these more often and extensively. I
    suggest--there's a proposal to create new task forces that the
    administration has put forward. I think that would be something
    that would be very valuable for the agency to look at and
    deploy for this particular purpose.
        Senator Johnson. Well, this is an excellent column. If it's
    not in the record, I'd ask unanimous consent to enter it into
    the record of the hearing.
        The Chairman. Without objection.
        Senator Johnson. Thank you, Mr. Chairman.
        [The information referred to follows:]

                       Federal Communications Commission

                     Taking Stock of FCC Paperwork Burdens

                             March 3, 2017--4:15 pm

                       By Michael O'Rielly, Commissioner

        I am pleased that the Commission has begun to take steps to review
    and eliminate unnecessary burdens on the communications industry.\1\ It
    is a worthy task, and something I have been advocating for since I
    arrived at the agency almost three and half years ago. As the
    Commission embarks on these efforts, I thought it would be helpful to
    understand the current state of play. There are many types of costs
    that an agency can put on regulatees, but lacking solid information on
    most burdens due to the absence of cost-benefit analyses in prior
    items, I want to at least highlight one category of costs that the
    agency is required to track: paperwork burdens.
    ---------------------------------------------------------------------------
        \1\ This is being done both informally on an ad-hoc basis and as
    part of the Commission's biennial review obligations under Section 11
    of the Communications Act.
    ---------------------------------------------------------------------------
        The Paperwork Reduction Act (PRA) requires the FCC to seek Office
    of Management and Budget (OMB) approval before asking entities to fill
    out forms, maintain records, or disclose information to others. The
    intent was to require agencies to carefully consider the need for
    additional information before collecting it, thereby minimizing
    burdens. Once approved, the cost estimates are posted online and
    searchable by agency.
        Even I was a bit surprised to see the extent of the FCC's
    information collection efforts, which seem disproportionately costly.
    According to OMB, as of the end of February, the FCC has 423 active
    collections demanding 457,355,706 responses each year requiring a total
    of 73,200,049 hours to complete at a total cost of $798,204,803. In
    short hand, that's 73 million hours and $800 million annually just to
    fill out FCC paperwork, and there is a decent chance that these figures
    are lowballed. That is well above the cost figures of several other
    major agencies, as seen below.

    ------------------------------------------------------------------------
                                                   Total Cost of Active
                     Agency                      Information Collections
    ------------------------------------------------------------------------
    Department of Education                  $305,014
    ------------------------------------------------------------------------
    Department of Housing & Urban            $1,942,728
     Development
    ------------------------------------------------------------------------
    Department of Veterans Affairs           $11,141,104
    ------------------------------------------------------------------------
    Department of Energy                     $49,550,308
    ------------------------------------------------------------------------
    Department of the Interior               $178,634,533
    ------------------------------------------------------------------------
    Department of Agriculture                $397,848,225
    ========================================================================
    FCC                                      $798,204,803
    ------------------------------------------------------------------------

        While I strongly believe in data driven decision making and the
    need to ensure accountability, I have to question how much of the
    existing information collection is truly justified. I've observed that
    every new FCC policy seems to require a brand new data collection. And,
    once in place, the rules can live on long past their usefulness.
    Moreover, without sufficient coordination within the agency, the
    burdens can pile up without any clear understanding of the total burden
    on any given segment of the industry.
        For example, I have heard from small rural telephone companies that
    now have to make close to 100 filings with the FCC each year. That's a
    significant amount of time and resources that are being diverted away
    from delivering service to consumers. Last March, the Commission sought
    comment on eliminating several types of burdens on these providers,
    which I viewed as the tip of the iceberg. The Commission even observed
    that these small companies may be subject to duplicative sets of
    network outage reporting requirements and sought comment on whether to
    eliminate one set. Almost a year later, the Notice remains pending. In
    addition to acting quickly on these known problems, the agency should
    complete a holistic data review to determine which collections remain
    necessary, look at ways to streamline those collections, and eliminate
    those that are duplicative or unnecessary.
        I am also troubled that the Commission does not currently track
    burdens by industry segment or even by size. The Regulatory Flexibility
    Act (RFA) requires Federal agencies to review regulations for their
    impact on small businesses and consider less burdensome alternatives.
    Therefore, in each rulemaking item, there is a lengthy appendix listing
    all of the types of small entities impacted by the Commission's action.
    I asked our Office of Communications Business Opportunities, which is
    the agency's small business liaison, for information on the total
    burdens on each type of small business regulated by the agency, as well
    as the number of times that the Commission considered but declined to
    make accommodations for small businesses. However, they were unable to
    provide the requested information because they do not keep track of it.
    In fact, the response was that it is not required under the Regulatory
    Flexibility Act, the Paperwork Reduction Act, or any executive order.
    This explanation completely missed the point. These data points and
    other basic data should be available to help us understand the impact
    of the Commission's activities. Therefore, I recommend that, going
    forward, we require OCBO to begin tracking this information. At a
    minimum, the agency should be able to catalog and track the paperwork
    burdens imposed on small providers given that it is already required to
    calculate those costs for PRA and already specifies which small
    providers are impacted by rule changes for purposes of the RFA.
    Combining the two should not be too hard, and would be worth the
    effort.
        At the same time, the Commission should enthusiastically embrace--
    whether required to do so or voluntarily--the Administration's
    Executive Order creating regulatory reform officers and agency
    regulatory reform task forces. The idea is simple: assemble dedicated
    people in each government agency to make recommendations to repeal or
    simplify existing regulations that are unnecessary, burdensome or
    harmful to the economy. While seemingly repetitive of efforts already
    underway, it has some unique proprieties that could generate new reform
    ideas not considered or explored before. In the end, it's a sound and
    worthy goal to provide strong and vibrant American industries to
    employee Americans and improve economic productivity. One of the first
    jobs of the new FCC task force should be to examine our paperwork
    burdens.
                                     * * *
        As I've said before, regulations impose costs on companies and,
    ultimately, consumers. We must be careful not to place undue burdens on
    companies whether in specific rulemakings, or as the product of
    cumulative Commission actions. By tracking and regularly reviewing the
    requirements we put on providers, we can better ensure that the costs
    we do impose are narrowly tailored and truly warranted.

        The Chairman. Thank you, Senator Johnson.
        Senator Schatz, I think, has some questions he wants to
    submit for the record.
        Senator Schatz. Just a request to submit in the record on
    behalf of Senator Nelson a letter to the Committee from the
    Leadership Conference on Civil Rights--Civil and Human Rights--
    raising concerns regarding the FCC's recent actions on
    Lifeline, media ownership, and a few other issues.
        The Chairman. Appreciate that. We'll include it in the
    record without objection.
        Thank you, Senator Schatz.
        [The information referred to follows:]

            The Leadership Conference on Civil and Human Rights
                                          Washington, DC, March 7, 2017
    Hon. John Thune,
    Chairman,
    Committee on Commerce, Science, and Transportation,
    United States Senate,
    Washington, DC.
    Hon. Bill Nelson,
    Ranking Member,
    Committee on Commerce, Science, and Transportation,
    United States Senate,
    Washington, DC.

    Dear Chairman Thune and Ranking Member Nelson:

        On behalf of The Leadership Conference on Civil and Human Rights, I
    request that the attached letter be included as part of the formal
    record of the Senate Committee on Commerce, Science and Transportation
    hearing entitled, ``Oversight of the Federal Communications
    Commission.'' Thank you for your interest in the priorities of the
    civil rights community with regard to media and telecommunications
    policy.
        If you have any questions about this request, do not hesitate to
    contact Leadership Conference Managing Policy Director Corrine Yu--
    yu@civilrights.org.
                Sincerely,
                                                 Wade Henderson
                                                        President & CEO
                                                   Nancy Zirkin
                                               Executive Vice President
    Enclosure
                                     ______

            The Leadership Conference on Civil and Human Rights
                                          Washington, DC, March 7, 2017
    Chairman Ajit Pai,
    Federal Communications Commission,
    Washington, DC.

    Re: MB Docket Nos. 09-182, 07-294, 14-50; BO Docket No. 12-30; WC
                Docket Nos. 09-197, 11-42, 12-375

    Dear Chairman Pai:

        On behalf of The Leadership Conference on Civil and Human Rights, a
    coalition of more than 200 national advocacy organizations charged by
    its diverse membership to promote and protect the rights of all persons
    in the United States, we write to request a meeting to express our
    concern regarding your policy agenda as the newly-designated Chairman
    of the Federal Communications Commission. While we appreciate your
    announced intentions to address the digital divide and to proceed in a
    more transparent manner, your recent decisions on Lifeline, Joint Sales
    Agreements (JSAs), and inmate calling rates are of profound concern to
    The Leadership Conference and its Media/Telecommunications Task Force,
    organizations that are dedicated to ensuring affordable broadband,
    increasing media ownership diversity, and ending predatory prison phone
    rates.
    Lifeline
        The Leadership Conference strongly supports the Lifeline program
    and its modernization to make broadband more affordable.i
    Bipartisan consensus confirms that broadband is an essential service in
    the modern economy, and all available data shows that people of color
    are falling behind.ii Cost is a major barrier to broadband
    adoption and Lifeline is the only program that addresses the cost of
    broadband for low-income families. Last year's Lifeline modernization
    order adopted changes to enhance competition in Lifeline provision and
    thus improve service quality and lower prices. Your recent decision to
    revoke Lifeline Broadband Provider (LBP) designations for nine
    broadband service providers iii will reduce the number of
    providers offering broadband and thus decrease the competitive forces
    available to drive down prices. When you opened your Chairmanship with
    a pledge to focus on the digital divide, you pledged to ``help the
    private sector'' without specifically mentioning helping the low-income
    communities on the wrong side of the divide.iv This pledge,
    combined with your extensive attacks on the program,v give
    us concern that you will undermine the Lifeline program rather than
    strengthen it.
    ---------------------------------------------------------------------------
        \i\ See, e.g., Leadership Conference Quadrennial Review Comments,
    MB Docket Nos. 09-182, 07-294, 14-50; BO Docket No. 12-30) (filed Aug.
    11, 2014).
        \ii\ E.g., Free Press, Digital Denied: The Impact of Systemic
    Racial Discrimination on Home-Internet Adoption (December 2016) at 85
    (39 percent of non-internet Hispanic households and 35 percent of non-
    internet Black households cite ``can't afford it'' as a reason for not
    subscribing).
        \iii\ Telecommunications Carrier Eligible for Universal Service
    Support, Order on Reconsideration, WC Docket 09-197, 11-42, DA 17-128
    (rel. Feb. 3, 2017) available at: https://transition.fcc.gov/
    Daily_Releases/Daily_Business/2017/db0203/DA-17-128A1.pdf.
        \iv\ Chairman Ajit Pai, Remarks to the Federal Communications
    Commission (Jan. 24, 2017) available at: https://www.fcc.gov/document/
    chairman-pai-remarks-federal-communications-commission.
        \v\ See, e.g., Testimony of Commissioner Ajit Pai before the House
    Subcommittee on Communications and Technology (July 14, 2017) available
    at: https://www.fcc.gov/document/commissioner-pai-statement-house-
    oversight-hearing.
    ---------------------------------------------------------------------------
    Media Ownership
        We believe that media concentration leads to fewer owners and fewer
    entrepreneurial opportunities, whereas actions to tighten the media
    ownership rules will lead to more owners and more such opportunities
    for people of color and women. The Commission has a long way to go
    before it fulfills its obligation to measure and remedy the lack of
    ownership diversity in broadcasting--particularly given that the
    Commission has not yet released or analyzed its Form 323 ownership data
    collected in December 2015. The Commission's decision to rescind its
    two-year old 2014 Joint Sales Agreement (JSA) guidance not only
    withdrew a policy that led to the only increase in television ownership
    diversity in recent years,vi but also was inconsistent with
    your stated intent to remove ``midnight rules.'' vii
    ---------------------------------------------------------------------------
        \vi\ See Making Good on the Promise of Independent Minority
    Ownership of Television Stations at https://www.fcc.gov/blog/making-
    good-promise-independent-minority-ownership-television-stations
    (December 4, 2014).
        \vii\ Media Bureau, Processing of Broadcast Television Applications
    Proposing Sharing Arrangements and Contingent Interests, DA 14-330
    (rel. March 12, 2014) available at: https://docs.google.com/
    viewer?url=http%3A%2F%2Fhraunfoss.fcc.gov%2Fedocs_public%2Fattachmatch
    %2FDA-14-330A1.pdf
    ---------------------------------------------------------------------------
    Prison Phone Rates
        We are extremely disappointed that you have chosen to attack and
    dissent from the Commission orders addressing exorbitant prison phone
    rates. Your actions here are especially troubling given that you have
    noted your ``up-close understanding of the social and economic
    challenges faced by those who are incarcerated and their families,''
    viii acknowledged that the provision of inmate calling
    constitutes ``market failure,'' ix and said that you are
    ``convinced that [the Commission] must take action to meet our duties
    under the law, not to mention our obligations of conscience,''
    x Now that, under your leadership, the Commission has
    refused to defend critical components of the rules in federal court, we
    believe it is your duty, once the court reaches a decision, to act
    immediately to protect families and reduce recidivism through just,
    reasonable, and fair inmate calling rates and fees.
    ---------------------------------------------------------------------------
        \viii\ Dissent of Ajit Pai, Rates for Interstate Inmate Calling
    Services, WC Docket No. 12-375 (2013) at 111.
        \ix\ Id.
        \x\ Id.
    ---------------------------------------------------------------------------
        These three issues comprise the core of the Commission's
    obligations under the Communications Act to ``make available . . . to
    all people of the United States, without discrimination on the basis of
    race, color, religion, national origin, or sex, a rapid, efficient,
    Nationwide, and world-wide wire and radio communication service with
    adequate facilities at reasonable charges.'' xi Thus, we
    hope to meet with you soon to discuss the above concerns.
    ---------------------------------------------------------------------------
        \xi\ 47 U.S.C. Sec. 151.
    ---------------------------------------------------------------------------
        Despite our differences, we are encouraged that you are interested
    in hearing from parties with whom you do not agree. We are pleased that
    you are adopting procedures to improve Commission transparency and
    regular operations. Finally, we agree with you that ``the FCC is at its
    best when it proceeds on the basis of consensus; good communications
    policy knows no partisan affiliation,'' and with your insistence that
    the agency ``respect the law as set forth'' by Congress and the
    courts.xii
    ---------------------------------------------------------------------------
        \xii\ Ajit Pai, Biography, Regulatory Philosophy, available at:
    https://www.fcc.gov/about/leadership/ajit-pai.
    ---------------------------------------------------------------------------
        We will be in touch with your office to schedule this meeting. In
    the meantime, please feel free to contact Media/Telecommunications Task
    Force Co-Chairs Cheryl Leanza, United Church of Christ, Office of
    Communication, Inc., cleanza@alhmail.com, or Michael Macleod-Ball,
    American Civil Liberties Union, mmacleod@aclu.org, or Corrine Yu,
    Leadership Conference Managing Policy Director, yu@civilrights.org to
    discuss the issues raised in this letter.
                Sincerely,
                                                Wade Henderson,
                                                       President & CEO.
                                                  Nancy Zirkin,
                                              Executive Vice President.

        The Chairman. All right. I want to submit for the record a
    letter signed by 18 organizations, including representatives
    from both the tech and telecom industries supporting the use of
    the Congressional Review Act repeal, the FCC's broadband
    privacy rule. So we'll submit that.
        [The information referred to follows:]

                                                          March 7, 2017

    Hon. John Thune,
    Chairman,
    Senate Committee on Commerce, Science, and Transportation,
    Washington, DC.

    Hon. Bill Nelson,
    Ranking Member,
    Senate Committee on Commerce, Science, and Transportation,
    Washington, DC.

    Dear Chairman Thune and Ranking Member Nelson,

        We, the undersigned organizations and trade associations, thank the
    Senate Commerce, Science, and Transportation Committee for holding its
    oversight hearing of the Federal Communications Commission (``FCC'')
    and congratulate Commissioner Ajit Pai on his designation as Chairman.
        We oppose the FCC's midnight Broadband Privacy Rule, which was
    adopted just days before last year's election, and urge Congress to use
    the Congressional Review Act (``CRA'') to disapprove this innovation-
    inhibiting regulation.
        The rule harms consumers because it creates confusion in a
    regulatory environment in which customer data is regulated by two
    different agency standards, based on whether information is used by an
    Internet service provider or edge provider. Last year, Chairman Pai
    testified before Congress about the negative effects of the FCC tearing
    up the unified approach to privacy regulation that was previously
    administered by the Federal Trade Commission (``FTC''). In fact, the
    FCC refused to adopt the FTC's recommended privacy framework, which has
    served customers well for years. The FCC provided no evidence to
    substantiate the proposition that broadband providers respected
    consumer privacy any less than other members of the Internet ecosystem.
        Last month, a leading representative of the technology sector
    testified before this Committee that the rule may set a dangerous
    precedent for the entire Internet ecosystem. Consumers enjoy the
    advertising-supported Internet and innovation, and investment thrived
    before the rule's adoption. The FCC's rule also threatens the economic
    health of broadband providers whose infrastructure is critical to new
    technologies like 5G and the Internet of Things.
        If Congress employs the CRA to disapprove the rule, customers will
    still enjoy reasonable privacy protections under Section 222 of the
    Communications Act.
        Congress should disapprove of this anti-consumer data rule so that
    the new Chairman and Commission can focus on removing other regulatory
    hurdles to innovation and restore regulatory balance to broadband
    service and the rest of the Internet ecosystem.
                Sincerely,

    American Consumer Institute
    Americans for Tax Reform
    AMT-The Association for Manufacturing Technology
    Competitive Enterprise Institute
    Consumer Technology Association
    Council for Citizens Against Government Waste
    CTIA
    Digital Liberty
    Electronic Transactions Association
    Interactive Advertising Bureau
    National Association of Manufacturers
    National Black Chamber of Commerce
    NCTA--The Internet & Television Association
    Small Business & Entrepreneurship Council
    Taxpayers Protection Alliance
    Tech Knowledge
    U.S. Chamber of Commerce
    USTelecom

        The Chairman. I would say we'll keep the hearing record
    open for two weeks, and if there are questions that Senators
    want to submit, feel free to do that, and we'll encourage upon
    receipt witnesses submitting their written answers to the
    Committee as soon as possible, and, particularly, any questions
    of Chairman Pai that might be relevant to his re-nomination as
    well.
        So with that, this hearing is adjourned. Thank you.
        [Whereupon, at 12:35 p.m., the hearing was adjourned.]

                                A P P E N D I X

         Response to Written Question Submitted by Hon. John Thune to
                                 Hon. Ajit Pai
        Question. Chairman Pai, what steps will you take to ensure the
    Commission has the benefit of robust economic analysis in its
    rulemakings, which has been sorely lacking in recent years, and is not
    constrained by legacy ``silos'' in approaching increasingly convergent
    communications technologies? What reforms to the FCC's organization and
    structure will be necessary, if any, to reflect the changing nature of
    telecommunications?
        Answer. Historically, the FCC had been a model for the use of
    economic analysis in Federal policymaking. For example, FCC economists
    have crafted white papers that have been significant drivers of
    incredibly important policy innovations, such as the use of auctions to
    assign licensed spectrum and the use of price cap regulation, rather
    than rate-of-return regulation. Unfortunately, robust economic analysis
    has been sorely lacking in the Commission's decision-making in recent
    years. For instance, in compliance with the Regulatory Right to Know
    Act, OMB submits an annual report to Congress detailing the benefits
    and costs of Federal rules. According to OMB's 2016 assessment, the FCC
    issued 11 major rules from 2006 to 2015. By their count, not one was
    accompanied by an estimate of benefits or costs. Additionally, FCC
    experts have published nearly 90 white papers since 1980, but zero
    since 2012. Finally, the functions of economic and data analysis are
    performed by terrific FCC staff scattered throughout the agency, unlike
    the legal function (vested in the Office of General Counsel) and
    engineering (housed in the Office of Engineering and Technology).
        This decline in the use of economic analysis motivated me to
    announce recently the creation of a working group to establish an
    Office of Economics and Data, or OED, at the FCC. This Office will
    combine economists and other data professionals from around the
    Commission. I envision it providing economic analysis for rulemakings,
    transactions, and auctions; managing the Commission's data resources;
    and conducting longer-term research on ways to improve the Commission's
    policies. The working group will develop a plan of action by this
    summer. The Commission will then carefully consider that plan. My goal
    is to have the new office up and running by the end of the year. My
    hope is that this Office will enable the more systematic use of core
    regulatory principles such as cost-benefit analysis and accuracy of
    data that underlies FCC decisions.
                                     ______

          Response to Written Question Submitted by Hon. Roy Blunt to
                                 Hon. Ajit Pai
        Question. I applaud your work on the recent Order regarding the
    weighting of application tiers for the CAF II Auction. Rural
    Missourians have been watching this proceeding closely, and are pleased
    with your leadership on behalf of rural areas. Does the Commission have
    a timeline for concluding the auction?
        Answer. I appreciated working closely with your office earlier this
    year as we moved forward on the Connect America Fund Phase II auction.
    Just last week, I announced the formation of the Rural Broadband
    Auctions Task Force to oversee implementation of this auction, among
    others. The Task Force is diligently working through the pre-auction
    process, with the expectation of conducting the auction in early 2018.
                                     ______

        Response to Written Questions Submitted by Hon. Dean Heller to
                                 Hon. Ajit Pai
        Question 1. I have constituents in rural Nevada who rely on over
    the air tv to get local news and other programming. And the only reason
    they have that access is because of translators that can get the signal
    out to them.
        But my concern is that after the spectrum auction is over and
    broadcast stations have been repacked, rural Nevadans access to over
    the air tv will be drastically cut.
        What impact will repacking have on translators and rural Nevadans
    access to over-the-air tv?
        Answer. Translators provide important services upon which many in
    rural communities rely. Although the Spectrum Act does not protect
    translators in the repacking process, I am committed to doing what we
    can to ensure that as many translators as possible will stay on the air
    (and flagged this issue when the FCC adopted its Notice of Proposed
    Rulemaking for the incentive auction in September 2012). For example,
    the FCC will open a special filing window for operating TV translator
    stations that are displaced by the repacking and reallocation of the
    television bands. The FCC has also adopted rules to permit LPTV and TV
    translators located in the new wireless band (except the guard bands)
    to remain on their existing channels during the post-auction transition
    period until they are notified that a forward auction winner is within
    120 days of commencing operations. This could allow continued
    operations in some locations for a number of years. And just last
    month, the Commission extended additional channel sharing rights to
    LPTV and TV translator stations and broadened the rules applicable to
    other stations to increase the likelihood of displaced stations finding
    a post-auction channel.

        Question 2. I appreciate that one of your first moves as Chairman
    was establishing a new Broadband Deployment Advisory Committee. The
    Commerce Committee has a lot of members with rural states, including my
    state of Nevada, and deployment is one of the greatest challenges in
    our rural areas.
        But deployment and access can't be successful without expansion of
    infrastructure, and utility poles are an essential part of that
    equation.
        Given how technical and complicated pole attachments can be, will
    this Advisory Committee include any stakeholders from electric
    companies?
        Answer. Yes. On April 6, 2017, I announced the 29 members selected
    for the Broadband Deployment Advisory Committee (BDAC). Pertinent to
    your question, I named Jim Matheson, Chief Executive Officer of the
    National Rural Electric Cooperative Association and former Utah
    Congressman, as well as Allen Bell, DOT, Joint Use and Franchise
    Manager, Georgia Power Company, representing Southern Company.

        Question 3. In Nevada, we have 2.8 million wireless subscribers,
    and 70 percent of high-speed broadband connections in the state are
    mobile. We need spectrum to meet this demand and continue innovating,
    creating jobs, and boosting the economy.
        But time is the critical factor. In the past, it's taken 13 years
    on average from start to finish to reallocate spectrum. Does the FCC
    have any tools to maximize the use of bands that are already authorized
    for commercial use?
        Answer. Yes. And I am proud that the Commission has already taken
    several actions during my tenure to do just that. For example, in
    February, the Commission adopted the Mobility Fund Phase II, which will
    direct $4.53 billion over the next decade to facilitate the deployment
    of advanced mobile service to rural America, where spectrum too often
    now lies fallow. Also that month, we certified the first LTE-U devices,
    paving the way for gigabit LTE through the efficient sharing of
    unlicensed spectrum with Wi-Fi. In March, the Commission also rolled
    back its outdated regulations that prevented the use of 800 MHz
    cellular spectrum for broadband technologies like LTE, and this month
    the Commission will be considering a package of reforms aimed at
    speeding the deployment of wireless infrastructure. Each of these
    actions should help maximize the use of bands that are already
    authorized for commercial use.
                                     ______

        Response to Written Questions Submitted by Hon. Bill Nelson to
                                 Hon. Ajit Pai
        Question 1. What is your vision for fulfilling your roles and
    responsibilities as the FCC Defense Commissioner?
        Answer. As FCC Defense Commissioner, my top priorities are to
    ensure the safety and welfare of all Americans, to promote the
    protection of property, and to support the government's continuity of
    operations in the event of a national disaster. In this capacity, I
    will continue to work in close coordination with the Department of
    Homeland Security, other departments and Federal agencies, state and
    local governments, and tribal and territorial authorities, to promote
    our Nation's emergency preparedness, homeland security, and defense
    readiness.

        Question 2. Since you joined the FCC in 2012, have you reached out
    to the Department of Defense (DOD) for a briefing on national security
    spectrum issues? If not, what are your plans to receive such a briefing
    in the near future?
        Answer. During my tenure as a Commissioner after I joined the FCC
    in 2012, I unfortunately did not have the pleasure to work with DOD. As
    Chairman and Defense Commissioner, however, I have discussed national
    security spectrum issues with DOD. I plan to continue to maintain
    contacts with my counterpart at DOD and others at the Department, as
    appropriate, to discuss several areas of mutual interest, including
    national security spectrum issues. The FCC and DOD have already
    established a longstanding relationship through the interagency
    process, and I want to make sure this collaboration continues under my
    leadership.

        Question 3. Given the importance of Federal Government missions
    that rely on spectrum access in our Nation's interest (i.e., Federal
    Aviation Administration, DOD, NASA, others), how do you plan to ensure
    a balance in spectrum policy to meet the needs of both Federal and non-
    Federal users?
        Answer. Although I support accelerated processes that move spectrum
    into the commercial marketplace, I am very cognizant of the mission-
    sensitive needs of our Federal Government partners. Our experience has
    been that coordination efforts are often complex and engineering-
    intensive, so we emphasize an objective, data-driven perspective when
    working with other agencies. As part of this process, the Commission's
    staff liaises routinely with the National Telecommunications and
    Information Administration (NTIA) and the various Federal agencies. For
    example, FCC staff participate in NTIA's Interdepartment Radio Advisory
    Committee (IRAC) and Policy and Plans Steering Group (PPSG), both of
    which include representatives from the various Federal agencies and
    departments that have responsibilities that requiring significant
    access to spectrum. During my tenure, we will continue to maintain this
    productive working relationship with the NTIA and other Federal
    agencies at the highest levels to satisfy our mutual legal mandates.
        Importantly, in multiple statutes, Congress has directed the
    Commission to work with other agencies to provide access to more
    commercial spectrum through repurposing and sharing Federal spectrum.
    The Bipartisan Budget Act of 2015 aided this process by giving Federal
    agencies the funding to plan for future transitions and spectrum
    sharing. I look forward to working with Federal agencies as we continue
    to review spectrum use.

        Question 4. Given that spectrum is a finite resource, and both
    Federal and non-federal requirements are critical, what are your policy
    priorities in key areas such as increasing spectrum sharing and access
    opportunities for both Federal and non-Federal users?
        Answer. We have a crucial role to play in spectrum policy--a role
    made more critical by resource constraints and potential technical
    complexity. Since most of the spectrum is occupied, but often on a
    limited basis in terms of geography or time of use, we must continue to
    pursue opportunities for sharing spectrum. Technology has advanced in
    ways that enable meaningful access to spectrum on a shared basis while
    continuing to protect incumbent users against harmful interference. I
    also believe that sharing should be done in ways that benefit both
    Federal and non-Federal users, and we will continue to work with
    Federal stakeholders to find ways to achieve this. We also will
    continue to identify opportunities for making spectrum available on an
    exclusive basis. The broadcast incentive auction illustrates that this
    can be a complex process.
        More generally, we need to ensure that the Government's spectrum
    policies are meeting the needs of all users, Federal and non-Federal.
    Accordingly, we will continue rely on our talented staff who work on
    spectrum issues and to maintain our relationships with the NTIA and our
    Federal partners as we try to adapt spectrum policy to the times. In
    order to help the FCC meet this goal, one key policy priority includes
    approving new technologies and services within one year, as long
    required (but oft neglected) under Section 7 of the Communications Act.

        Question 5. What are your plans to ensure that ongoing coordination
    efforts between NTIA and FCC on spectrum policy continue to move
    forward smoothly?
        Answer. A key FCC priority in this area is to work with the
    Interdepartment Radio Advisory Committee (IRAC), which is an advisory
    committee to NTIA that is made up of representatives of the Federal
    agencies. NTIA considers the advice of the IRAC, but has the final say
    on the position of the Executive branch. The Commission already serves
    an active liaison role with the NTIA on the IRAC. We also have formal
    and informal contacts and processes to foster ongoing discussions and
    coordination with NTIA as well as our sister agencies. I will continue
    to encourage these relationships, as well as provide leadership
    directly from my office to facilitate productive negotiations and
    coordination.

        Question 6. I have heard from my local broadcasters that illegal
    pirate radio stations have been a big problem in Florida. Importantly,
    those broadcasters tell me that these pirate radio stations interfere
    with the Emergency Alert System, which is incredibly important given
    the natural disasters that can affect Florida.
        Answer. I agree, which is why enforcement against pirate radio
    broadcasters--in Florida and elsewhere--is a priority of mine and will
    remain that way as long as I am Chairman.

        Question 7. What are you doing to address pirate radio stations,
    both in Florida and nationwide? Will you commit to making combating
    pirate radio operations a priority during your time as Chairman of the
    FCC, including devoting sufficient resources to stop these illegal
    broadcasts? Are you able to use fines and equipment seizures to stop
    these broadcasts, or do you need additional enforcement authority?
        Answer. I appreciate your concern with the need to combat pirate
    radio operations. I have directed the FCC's Enforcement Bureau to
    aggressively pursue pirate broadcasters. Pirate radio can cause
    interference to other licensed broadcasters and non-broadcast services.
    And in some circumstances, it can even endanger public safety--for
    example, by interfering with the signal of a legitimate broadcaster
    that is delivering an Emergency Alert System (EAS) message. The
    Commission takes such interference very seriously.
        Parties found to be operating radio stations without FCC authority
    could be subject to a variety of enforcement actions, including seizure
    of equipment, imposition of monetary forfeitures, ineligibility to hold
    FCC licenses, and injunctive relief. Due to the gravity of pirate
    operations' interference, especially when it comes to public safety, we
    are also considering whether criminal sanctions may be appropriate in
    certain situations. The FCC also has the authority to inspect radio
    installations. Such inspections are done by the Enforcement Bureau's
    field agents. As for additional enforcement authority, I would be happy
    to work with you and your staff on any policies that could bolster our
    enforcement actions against pirate radio violators.

        Question 8. As you may know, Westelcom Network Inc., a small fiber-
    based broadband provider in New York has filed for a limited waiver
    request with respect to 47 C.F.R. Sec. 61.26(a)(6) of the FCC's rules--
    which defines rural competitive local exchange carriers (CLEC). The
    company lost its classification as a rural CLEC after a 2012 Census
    Bureau reexamined its classification for Watertown, NY (one of the six
    counties in Westelcom's service area) and decided to include Fort Drum
    in its population area for the first time ever. The population increase
    associated with the military base caused the area to be reclassified
    from a ``rural'' to an ``urbanized'' area. As a result of this new
    classification, the FCC determined that Westelcom could no longer
    qualify for the rural exemption rate provided for those entities
    defined as rural CLECs, despite the fact that Army policy prohibits
    Westelcom from serving the base.
        Because of the change in status, the small carrier will no longer
    receive the transition period the FCC's 2011 USF Transformation Order
    provided to rural companies and now faces a 96 percent cut in revenue.
    This has the potential to devastate critical institutions in the
    region, which receive the bulk of their broadband services from the
    company. In fact, nearly 100 health care facilities, telemedicine
    networks, municipalities, and education facilities receive service from
    the company.
        The waiver in question would restore to Westelcom the transition
    period it unfairly lost and allow the company time to stabilize its
    operations, consistent with the Commission's goal of ensuring broadband
    deployment in rural America. Furthermore, we know that continued
    delays, especially for a small company such as Westelcom, severely harm
    the future of the company and prevent continued investments in the
    region. Given your support for rural broadband deployment, what steps
    will your Commission take to ensure prompt action is taken on this
    waiver request?
        Answer. Over the last couple of months, my office has been working
    with Westelcom, Bureau staff, and my colleagues to address this issue.
    On April 5, after further discussions with the company, my office
    circulated a revised waiver order that would allow the company to
    stabilize its operations and maintain its service in rural America. I
    am working with my colleagues to get that order adopted promptly.

        Question 9. Due to the efforts of the company and of your
    predecessor, a compromised waiver was negotiated to allow a phase-down
    period for the company. The order was then put on circulation in
    December of 2016. Despite this, and the fact that the waiver enjoys
    bipartisan support from Members of Congress, the FCC has not taken
    official action on it. Is there a reason that action on this deal has
    stalled? If so, what additional information could this company provide
    to help the Commission make its decision?
        Answer. Over the last couple of months, my office has been working
    with Westelcom, Bureau staff, and my colleagues to ensure that
    Westelcom indeed met the extraordinary circumstances that are normally
    required for a waiver of Commission rules. During that period, the
    company was able to provide our staff with additional facts and
    assurances to make clear that unique situation it faces and to justify
    that a waiver in this specific circumstance would serve the public
    interest.

        Question 10. Chairman Pai, during the FCC Oversight hearing on
    March 8, Senator Thune asked you a question about the agency's
    broadband privacy rules and whether the FCC would still be obligated to
    regulate broadband provider privacy practices if these rules were
    repealed using the Congressional Review Act. Specifically, Senator
    Thune stated, ``[i]s it true that consumers would be left unprotected,
    or would the FCC still be obligated to police broadband privacy
    practices under Section 222 of the Communications Act?'' In your
    response, you indicated that Senator Thune was correct in his
    assessment that the FCC would still play a role in broadband privacy
    and you state that ``the carriers would still have their obligations
    under Section 222 in addition to other Federal and state privacy, data
    security, and breach notification requirements.''
        What are the obligations of broadband providers under Section 222
    to which you referenced in your answer? Are those specific, enumerable
    responsibilities that can provide consumers with transparency and
    certainty about how their data is collected, used, and sold?
        Answer. In the FCC's 2015 Open Internet Order, the Commission
    declined to forbear from the application of Section 222 to broadband
    providers, stating that the statute ``itself directly provides
    important privacy protections.'' Among these protections is the right
    of customers of telecommunications carriers (a category which includes
    ISPs under the terms of the Title II Order), to decide whether and how
    their customer proprietary network information (CPNI) will be used.
        Section 222 imposes a duty on telecommunications carriers to obtain
    the approval of their customers prior to using or sharing customer
    proprietary network information (CPNI), subject to certain limited
    exceptions. Specifically, under Section 222, a telecommunications
    carrier ``shall only use, disclose, or permit access to individually
    identifiable [CPNI]'' to provide the service from which such
    information is derived or services necessary to, or used in, the
    provision of such service. In addition, section 222 enumerates specific
    uses of CPNI that do not require customer approval, including for the
    provision of 911 service, to protect the rights and property of the
    carrier, to protect users and other carriers from fraud, and to bill
    and collect for the telecommunications service.
        The Commission has also interpreted section 222 as imposing on
    carriers a general duty to protect the confidentiality of CPNI,
    including a duty to take reasonable precautions to prevent the
    unauthorized disclosure of a customer's CPNI. Though the Commission has
    adopted detailed regulations to help clarify the applicability of this
    duty to voice services, the statutory duty applies independently.
        With respect to the second portion of your question, yes, section
    222 contains specific, enumerated responsibilities, including the
    points discussed above.

        Question 11. Given the FCC's 2015 forbearance from its rules
    implementing Section 222, how would the FCC act to ensure that
    broadband carriers meet these obligations that you referred to in your
    response?
        Answer. As discussed above, in the Title II Order, the Commission
    did not forbear from the application of Section 222, including as it
    applies to ISPs. The Commission did, however, forbear from applying
    certain rules that had been implemented pursuant to Section 222 for
    telephone companies. As such, section 222 and its requirements apply to
    ISPs, and the Commission has authority to enforce those statutory
    obligations.

        Question 12. Do you believe that the FCC would continue to play a
    role in broadband privacy if broadband providers were no longer
    classified as a telecommunications service subject to Title II of the
    Communications Act? If not, what agency would have that responsibility,
    especially in light of the 9th Circuit Court of Appeals decision on the
    scope of the common carrier exception in AT&T v. FTC?
        Answer. In the circumstances this question contemplates--and as was
    the case prior to the FCC classifying broadband as a Title II service
    in 2015--Congress has given the Federal Trade Commission jurisdiction
    over broadband privacy. The FTC exercised this role for decades
    following the commercialization of the Internet in the 1990s, and the
    evidence shows that it is a highly effective cop on the beat that can
    and will protect broadband consumers' privacy. The FCC has been, is,
    and would be ready and willing to offer the FTC any expertise the FCC
    may have to help them carry out that role.

        Question 13. You have indicated that the FCC would need to take
    time to evaluate the legal implications of a Congressional Review Act
    resolution of disapproval when it comes to its privacy and data
    security authority. If that is the case, how can you claim that
    broadband providers would still have privacy obligations following
    enactment of a resolution of disapproval? Would those obligations fall
    under Section 222, which is only applicable to common carrier services
    and would not apply should the FCC eventually reverse classification of
    these services as common carrier services?
        Answer. The CRA resolution which has now become law maintains the
    status quo regarding broadband privacy. Section 222 still applies to
    broadband providers, and the FCC can take enforcement action under this
    authority. In the event broadband providers were no longer common
    carriers, the FTC would be back in the same position it held prior to
    2015 of enforcing privacy protections in the online ecosystem.

        Question 14. Has the FCC evaluated what privacy and data security
    rules will be applicable to services that are common carrier services
    if this resolution is enacted and all of the reforms adopted last year
    are vitiated?
        Answer. Yes. All rules except those disapproved by Congress and the
    President in the CRA resolution are applicable to common carriers.

        Question 15. Chairman Pai, I serve as ranking member on the Armed
    Services Committee's Subcommittee on Cybersecurity. We live in a
    nation, in a world, where so much of what we do relies on connections
    to IP-based communications networks--and that means bad actors,
    anywhere in the world--with a keyboard--can potentially hack into those
    networks and exploit the underlying data. And it happens all-day, every
    day.
        The FCC is the expert agency overseeing our Nation's communications
    networks. Yet you have taken pains to try to make clear in your
    statements and in recent actions undoing and setting aside the FCC's
    cyber related items and reports, including staying the FCC's data
    security rule--that you do not believe the FCC has a role in our cyber
    defenses. Putting aside, for a moment, the NIST cyber framework, which
    includes critical infrastructure, or past regulatory debates at the
    FCC--everyone agrees that we need to be doing more, not less, to
    protect our Nation's communications networks against cyber attack.
        If you are keeping the FCC from being part of the solution, are you
    making it part of the problem?
        Answer. The FCC is very much a part of the solution. The agency has
    contributed and continues to contribute its subject matter expertise in
    close collaboration with the Department of Homeland Security, other
    Federal agencies, and industry, to counter cyberthreats. Given the
    scope of and potential harm from cyberthreats, it's important for all
    relevant agencies of the government to work together, in coordination
    with industry, to detect, minimize, and neutralize such threats. To
    this end, I have and continue to support the FCC's efforts to combat
    this problem through the established interagency process.

        Question 16. Is it tenable for the FCC, as the expert agency over
    our communications networks, to sit on the sidelines in the battle to
    protect our Nation from cyber attack?
        Answer. Despite the FCC's limited resources, some of our best
    professionals are working on a dedicated 24/7 basis with our
    counterparts in both other government agencies and industry to
    identify, mitigate, and disrupt real and potential threat vectors each
    and every day. In addition, in just the past year alone, the FCC has
    adopted rules strengthening and safeguarding our national emergency
    alert and warning systems. The FCC has also supported DHS and NIST in
    their development of voluntary industry standards to protect our
    Nation's communications networks.

        Question 17. Chairman Pai, throughout its history, the FCC has been
    active in its enforcement of all rules duly adopted by the agency. That
    has been true for the agency under the leadership of both Democratic
    and Republican Chairs. As a result, it surprised me to hear of your
    announcement in January--before you had officially assumed the Chair of
    the agency--that you did not intend to enforce the broadband
    transparency rules duly adopted by the agency in 2015 upon the
    expiration of the small business exemption in order. It makes me wonder
    if there are there other rules adopted by the agency that you do not
    plan to enforce as Chairman.
        Will you commit to this Committee that you will fully enforce the
    statutes governing the FCC, and the rules duly adopted by the agency,
    even if you personally disagree with those statutes or rules?
        Answer. Yes.

        Question 18. Chairman Pai, one of the responsibilities of the Chair
    of the agency is to help direct the agency's legal defense of its own
    actions. I understand that you have chosen not to defend certain rules
    adopted by the FCC under the leadership of your predecessor. I fear
    that these moves signal a willingness on your part to walk away from
    other litigation over actions by your predecessor as a way to undermine
    those actions--which would cause me great concern.
        At present, is there other ongoing litigation in which you intend
    to instruct your staff not to defend the actions of the agency?
        Answer. No.

        Question 19. Chairman Pai, some have suggested that you use the
    FCC's power to issue interpretive rules to undo key actions taken by
    the FCC under your predecessor, including the classification of
    broadband as a common carrier service. The groups who favor this
    approach suggest that these sorts of interpretive actions would not be
    subject to full notice and comment requirements under the
    Administrative Procedure Act (APA), and thus could be taken much more
    quickly. I would argue that such actions would undermine public faith
    for the agency, as using this authority would be inappropriate in this
    context, result in less transparency, and represent hasty decision
    making built upon predetermined political outcomes.
        I know that you disagree with many of the actions taken by the FCC
    under your predecessor--you clearly have not been silent on that in
    your time as a Commissioner. But the appropriate way to reconsider
    those previous actions, including the classification of broadband, is
    through full and fair rulemakings pursuant to standard APA notice and
    comment processes. In my opinion, using an interpretive rule would be
    inappropriate in this context. Will you commit that any major actions
    you take as Chairman of the agency, including possible action related
    to the classification of broadband as a common carrier service, will
    only occur after a full notice and comment rulemaking process that
    allows adequate time for public comment and consideration?
        Answer. I have long believed that an open and transparent process
    that gives a full opportunity for public consideration is best. That is
    why, in one of my first actions as Chairman, I created a pilot program
    to test the releasing of the draft text of Commission decisions three
    weeks before a Commission vote. That program was so successful in
    February that I expanded it to encompass all six items on the March
    agenda and all seven on the April agenda. Similarly, I have steadfastly
    believed that Commission must rigorously adhere to the dictates of
    Federal law, including specific requirements of the Administrative
    Procedure Act. I accordingly commit to doing so going forward.
                                     ______

       Response to Written Questions Submitted by Hon. Maria Cantwell to
                                 Hon. Ajit Pai
        Question 1. You have been an advocate of loosening or eliminating
    altogether the rules that govern how many broadcast stations and
    newspapers a company can own in any one market. And it is my
    understanding that you hold this view because you think the rules don't
    reflect the current media marketplace.
        What FCC data are you relying on to support this conclusion?
        Answer. At the outset, I note that the Newspaper/Broadcast Cross-
    Ownership (NBCO) Rule is currently before the Commission on
    reconsideration and any subsequent decision to modify or repeal the
    rule would be based on the record developed in the Commission's media
    ownership review proceeding. That record contains extensive information
    about the current media marketplace and support for the conclusion that
    the NBCO Rule is outdated and harmful.
        In my dissent to the August 2016 Second Report and Order that
    effectively retained the existing ban on the common ownership of
    newspapers and broadcast stations, I provided an extensive analysis
    showing that the NBCO Rule--originally adopted in 1975--no longer
    reflects the current media marketplace. For example, since 1975,
    approximately one quarter of newspapers in the United States have gone
    out of business, while others no longer publish on a daily basis or
    have abandoned the print medium altogether in favor of digital-only
    distribution, meaning they no longer meet the definition of a daily
    newspaper under the Commission's rule. And the newspaper industry has
    been particularly hard hit since 2000, enduring significant declines in
    circulation, advertising revenues, and employment. Moreover, the
    Internet has fundamentally transformed the ways in which the American
    people consume news and information, but the Commission's media
    ownership rules have failed to keep pace (indeed, they do not factor in
    the transformative impact of the Internet on media). In light of all
    this, the government should be finding ways to promote investment in
    the newspaper industry, not discouraging investment with antiquated
    regulations that do not reflect the current media marketplace.
        For your reference, I have provided a copy of my August 2016
    dissent.

        Question 2. What evidence do you have that proves consolidated
    ownership creates more journalism and more jobs?
        Answer. As provided in greater detail in my August 2016 dissent,
    the record in the media ownership proceeding is replete with studies
    spanning almost four decades demonstrating that common ownership of
    newspapers and broadcast stations leads to increased investment in
    local journalism and improved service in local communities. For
    example, Commission-sponsored studies from 2007 found that cross-owned
    television stations provided more news programming, local news
    coverage, and coverage of state and local politics than non-cross-owned
    stations. Another Commission-sponsored study from 2007 found that a
    cross-owned radio station was four to five times more likely to have a
    news format than a non-cross-owned station. Moreover, owners of
    grandfathered newspaper/broadcast combinations provided numerous
    unrebutted examples of how their cross-owned combinations provided more
    comprehensive news coverage to their local communities, including
    Atlanta, Cedar Rapids, Milwaukee, Phoenix, South Bend, Spokane, Topeka,
    and Amarillo.

        Question 3. Form 323 is the FCC's tool for gathering data on
    ownership data from broadcasters, but response rates are low.
    Historically, broadcasters have faced little to no penalty for
    noncompliance. Response rates for some broadcast services, such as AM
    radio, were as low as 79 percent, a service you have highlighted as
    important for enhancing ownership diversity.
        What steps will you take to ensure that broadcasters provide a full
    accounting of ownership information?
        Answer. The Commission has been and continues to be engaged in an
    intensive effort to improve its broadcast ownership data, seeking to
    reduce the burden on filers and, at the same time, ensure that the data
    are reliable, searchable, and aggregable. Since adopting a unified
    biennial filing deadline in 2009, the Commission has taken various
    steps that have helped improve response rates. In the most recent
    filing windows, the Commission's Media Bureau has hosted information
    sessions for Form 323 filers designed to increase awareness of the
    filing requirement, present an overview of Form 323, conduct a filing
    demonstration, and address common filing mistakes. The Commission has
    also engaged in targeted outreach to increase awareness of the
    sessions. The Commission anticipates that a similar event will be held
    prior to the 2017 filing period. Prior to the filing periods, the
    Commission has also released multiple public notices alerting filers of
    the upcoming filing window. In addition, it is anticipated that the
    significant improvements to Form 323 adopted in January 2016 will
    further improve the quality and rate of responses in the upcoming
    filing.
        Now, as Chairman, I intend to explore additional ways to help
    improve response rates, reduce filing burdens, and improve the overall
    quality of the Commission's broadcast ownership data. At the same time,
    I'm taking steps to ensure that our efforts to collect ownership data
    do not have unintended consequences. For example, at the April 2017
    Open Meeting, the Commission will consider an Order to expand options
    for how noncommercial broadcasters can comply with the ownership
    reporting requirements.

        Question 4. You are on record as saying that the FCC should engage
    in transparent and data-driven decision making. During your
    chairmanship you will have an opportunity to preside over the FCC's
    statutorily mandated periodic review of the FCC's media rules.
        As part of this periodic review, the FCC is obligated to gather
    ownership data every two years.
        The 2015 data collection has not been released. The FCC is
    scheduled to collect media ownership data again in 2017.
        Will you release the 2015 data collected as a result of the 2015
    biennial review of the FCC's media rules within 2 weeks of the
    submission of your answers to these QFRs? If not, why not?
        Answer. The 2015 data regarding the ownership of commercial
    broadcast stations collected on FCC Form 323 ownership reports filed
    biennially by commercial licensees is publicly available on the
    Commission's website. Currently, the Media Bureau is working to
    finalize and release a report that analyzes that ownership data in
    various ways, as it has done in the past. This is a priority for us,
    and the Commission is working to release that report as soon as
    possible.

        Question 5. Will you commit to keeping the FCC on schedule to
    conduct, in 2017, a timely and complete data collection regarding the
    media rules? If not, why not?
        Answer. We are currently on schedule to receive the ownership data
    for the next biennial filing window that opens this fall. We are in the
    process of implementing changes to the FCC Forms 323 and 323-E
    (ownership forms) to ensure that they reflect the changes adopted by
    the Commission in 2016, as well as any modifications adopted by the
    Commission at the April 20, 2017 open agenda meeting. These revised
    forms should simplify the filing process for licensees, increase the
    response rate, improve the quality of submitted ownership data, and
    facilitate the Commission's analysis of that data.

        Question 6. Will you commit to collecting and publishing and
    analyzing the 2017 data collection ahead of any changes or
    reconsiderations of existing broadcast ownership policies? If not, why
    not?
        Answer. The 2017 biennial ownership filing window will close on
    December 1, 2017, after which the Commission, and others, can begin the
    process of reviewing and analyzing the ownership data. While the
    Commission intends to analyze the submitted ownership data and release
    a report as quickly as possible, it is premature at this point to
    determine whether that timing will coincide with the Commission's
    resolution of the pending petitions for reconsideration of the 2010/
    2014 quadrennial media ownership proceeding, which were filed in
    December 2016.

        Question 7. The U.S. Census Bureau's Annual Capital Expenditures
    Survey for 2015 for the entire telecom industry shows that the total
    capital expenditures by wired telecom carriers, cable distributors,
    broadband ISPs, wireless telecom carriers, and telecom resellers
    increased by more than $550 million over the 2014 level.
        Moreover the annual earnings reports of several leading broadband
    providers' show that investment is up, not down in the two years since
    the FCC's 2015 order.\1\
    ---------------------------------------------------------------------------
        \1\ For example, in its most recent earnings report, Comcast--the
    nation's largest broadband provider--noted that in 2016 year over year
    ``capital expenditures increased 7.5 percent to $9.1 billion.'' The
    lion's share ($7.6 billion) of that $9.6 billion went to the company's
    Cable Communications division, ``primarily reflecting increased
    investment in line extensions, a higher level of investment in scalable
    infrastructure to increase network capacity and continued spending on
    customer premise equipment related to the deployment of the X1 platform
    and wireless gateways''--that $7.6 billion was an increase of 7.9
    percent over the previous year.
        Likewise, AT&T said it its most recent earnings that it spent $22.9
    billion on capital investment in 2016, up from $20.7 billion in 2015.
    Granted, the 2015 number was slightly down from the $21.4 billion spent
    in 2014, but it's higher than the $19.7 billion or $20.2 billion spent
    in 2012 or 2011, respectively, seeming to undercut claims of historic
    low levels of investment.
        Broadband back bone company Level 3 Communications, which is
    currently being acquired by CenturyLink, spent $1.33 billion in 2016,
    more than it spent in either 2015 ($1.23 billion) or 2014 ($1.25
    billion). Cogent Communications, another broadband backbone company,
    spent $45.2 million last year, up from $35.6 million in 2015.
    ---------------------------------------------------------------------------
        Given these facts, what's the basis for your repeated suggestion
    that the legal definitions underpinning Net Neutrality, and broadband
    privacy are responsible for any downward change in investment?
        In your answer please cite your sources and provide examples where
    relevant.
        Answer. By looking at data from the Census Bureau's Annual Capital
    Expenditure Survey (ACES) from 2013 through 2015, the decline in
    capital investment before and after Title II reclassification is much
    clearer. Using the ACES data you cite (for wired telecom carriers,
    cable distributors, broadband ISPs, wireless telecom carriers, and
    telecom resellers), comparing 2013 (i.e., the year before President
    Obama announced his desire for Title II re-classification) with 2015
    (i.e., the year the FCC reclassified broadband as a Title II service)
    shows annual capital investment being slightly lower in 2015 compared
    with 2013. (Sources: Sources: Table 4b at https://www.census.gov/data/
    tables/2014/econ/aces/2014-aces-summary.html; Table 4a at https://
    www.census.gov/data/tables/2015/econ/aces/2015-aces-summary.html).
        In addition, other third-party sources also indicate an overall
    decline in investment. Economist Hal Singer finds by tracking
    investment of twelve major ISPs between 2014 and 2016 that domestic
    capital expenditures declined by 5.6 percent or $3.6 billion. (Source:
    https://haljsinger.wordpress.com/2017/03/01/2016-broad
    band-capex-survey-tracking-investment-in-the-title-ii-era/) Studies
    suggesting an increase in overall investment often make critical
    methodological errors by, for example, counting as domestic network
    investment a major U.S. carrier's multi-billion dollar investment in
    upgrading its wireless network in Mexico, or another major U.S.
    carrier's changed accounting treatment of handsets from an operating
    expense to a capital expense.

        Question 8. Smart technologies will enable cities to improve
    community livability, services, communication, safety, mobility, and
    resilience to natural and manmade disasters; reduce costs, traffic
    congestion, air pollution, energy use, and carbon emissions; and
    promote economic growth and opportunities for communities of all sizes.
        Smart City market estimates show rapid growth in coming years, and
    the number of Internet-connected devices in Smart Cities alone is
    expected to grow from 1.2 million in 2015 to 3.3 billion in 2018.
    Mobile broadband is the engine for the proliferation of smart cities.
        This aspect of our Internet economy is expected to grow from almost
    $2 billion in 2015, to $147.5 billion by 2020.
        The FCC is the agency charged with making more spectrum available
    for mobile broadband.
        Given this rapid growth in Smart Cities technology, what is the
    Commission doing now to usher in next-generation networks to meet
    anticipated spectrum demands?
        Answer. In recent years, the Commission has made an unprecedented
    amount of new spectrum available for flexible wireless use, including
    technologies that will enable the growth of Smart Cities. These efforts
    include: (1) the broadcast incentive auction; (2) the Spectrum
    Frontiers proceeding; (3) the Citizens Broadband Radio Service
    proceeding; and (4) the AWS-3 auction. In the Spectrum Frontiers
    proceeding alone, the Commission made available almost 11 gigahertz of
    spectrum above 24 GHz for licensed and unlicensed fixed and mobile use,
    proposed to make available 18 gigahertz of additional spectrum, and
    sought comment on making spectrum above 95 GHz available for commercial
    use (this last aspect is one I personally pushed in 2015). The
    Commission also has several ongoing proceedings designed to improve
    access to and efficient use of a variety of additional spectrum bands
    and is actively exploring opportunities to expand access to even more
    spectrum in the future.

        Question 9. Does the Commission need additional statutory authority
    to meet the demand for spectrum?
        Answer. Although the Communications Act, as amended, gives the
    Commission substantial authority to accommodate the demands for more
    spectrum, legislation such as the Spectrum Act have played a critical
    role in advancing the ball. Most recently, the Making Opportunities for
    Broadband Investment and Limiting Excessive and Needless Obstacles to
    Wireless Act (also known as the Mobile Now Act) represents an
    opportunity for the United States to show international leadership in
    the area of spectrum management and the move to 5G.

        Question 10. What is the Commission's role in ensuring that Smart
    City devices have adequate protections against cybersecurity breaches?
    If the Commission has no role, which part of the Federal Government has
    responsibility for this?
        Answer. The FCC has a role to play within the clear confines of its
    defined statutory authority to protect the reliability of the Nation's
    communications industry and to contribute to the primary roles that
    other agencies like the Department of Homeland Security have to address
    cybersecurity challenges. The security of America's communications
    networks is a top priority, but the Commission cannot take action on
    this issue beyond the role prescribed by Congress. I believe that the
    industry needs to lead, and voluntary mechanisms are a good way to
    provide benchmarks and expectations of protections for these providers
    and consumers.
        We have opportunities as network experts to contribute to
    interagency dialogues related to this topic, and to support the primary
    efforts of the industry to secure their networks by clearing away red
    tape or regulatory ambiguities that would impair their ability to
    effectively plan and execute their cybersecurity responsibilities. The
    Communications, Security, Reliability, and Interoperability Council
    (CSRIC) is a good example of this process--a stakeholder-led effort
    providing the Commission with ``in the trenches'' insight into proven
    means to mitigate cyber risks.

        Question 11. The FCC is currently considering a petition seeking
    broad pre-emption of state and local authority over rights of ways and
    siting.
        The relief sought by the petitioner seems like a very extreme
    measure for a problem that's solvable with some outreach, communication
    and coordination with state and local siting authorities as well as
    Tribes.
        Is the FCC willing to convene a working group with wireless
    industry stakeholders and representatives of state local and Tribal
    siting authorities to come up with a game plan for wireless
    infrastructure deployment that includes things like: information
    sharing about 5G technology, creating model ordinances, creating model
    franchise applications and other best practices to streamline the
    deployment process? If not, why not?
        Answer. At my first open meeting as Chairman, I announced the
    creation of the Broadband Deployment Advisory Committee, which will
    consist of wireless industry stakeholders, representatives of state,
    local, and Tribal government authorities, and others, to consider ways
    to accelerate the deployment of broadband infrastructure, including 5G
    wireless service.

        Question 12. Senator Shaheen and I sent a letter to the Commission
    in June 2016 asking that the FCC commit to providing an assessment of
    whether the $1.75 billion budget and 39 month timeline for the
    incentive auction repack are sufficient for a successful repack of the
    broadcasters.
        Then Chairman Wheeler wrote back to us later in the year committing
    to provide the information to us in a timely fashion after the
    completion of the forward auction.
        I understand that the forward portion of the incentive auction is
    still ongoing.
        Will you honor that commitment and send us the information
    requested at the close of the forward auction? If not, why not?
        Answer. Yes. I have consistently said that broadcasters shouldn't
    have to pay for relocation costs out of their own pockets. We will know
    more about the adequacy of the $1.75 billion fund once we receive the
    cost estimates from broadcasters and have had a chance to review them;
    these estimates are due 90 days after the release of the Closing and
    Channel Reassignment Public Notice.
        I have also said that it is not the Commission's intention to force
    stations off the air if they fail to complete their transition to new
    facilities on schedule. It's premature at this point to determine
    conclusively whether the 39-month time-frame will be sufficient. We
    have a transition plan in place that creates a schedule taking into
    account resource constraints, complex tower facilities, interference
    between stations, and other important factors. It is designed to
    minimize viewer inconvenience, efficiently allocate the resources
    necessary for broadcasters to operate on their new frequencies, and
    ensure that winning bidders for wireless licenses in the forward
    auction can deploy in the 600 MHz band in a timely manner. The plan is
    the product of more than two years of engagement with the broadcast
    industry, the wireless industry, antenna manufacturers, tower crews,
    and other stakeholders.

        Question 13. There was a GAO report stating that threats to the
    security of mobile devices and the information they store and process
    have been increasing significantly.
        In 2012, the Government Accountability Office recommended that the
    Federal Communications Commission encourage the private sector to
    implement a broad, industry-defined baseline of mobile security
    safeguards. They specifically asked the commission to continue to work
    with wireless carriers and device manufacturers on implementing these
    cybersecurity best practices by encouraging them to implement a
    complete industry baseline of mobile security safeguards based on
    commonly accepted security features and practices.
        In response to the GAO's recommendation the Commission tasked the
    Communications, Security, Reliability, and Interoperability Council
    (CSRIC) to update these cybersecurity best practices. What the council
    developed were ``voluntary mechanisms'' that increased assurance that
    communication providers are taking the necessary measures to manage
    cybersecurity risks. It was also to provide implementation guidance to
    help communication providers use and adapt the ``voluntary''
    cybersecurity framework.
        Now that you are Chairman, do you feel that these ``voluntary
    mechanisms'' are adequately protecting consumers from cybersecurity
    breaches?
        Answer. The FCC has a role to play within the clear confines of its
    defined statutory authority to protect the reliability of the Nation's
    communications industry and to contribute to the primary roles that
    other agencies have to address cybersecurity challenges. The security
    of America's communications networks is a top priority, but the
    Commission cannot take action on this issue beyond the role prescribed
    by Congress. I believe that the industry needs to lead, and voluntary
    mechanisms are a good way to provide benchmarks and expectations of
    protections for these providers and consumers.
        However, to the extent that network security risks disrupt critical
    communications services, like 911, the FCC will do whatever we can,
    with other stakeholders and within our authority, to mitigate those
    risks. The FCC can act to identify network security risks that
    jeopardize critical communications services and act, again within the
    confines of our statutory authority, to reduce them.
        We have opportunities as network experts to contribute to
    interagency dialogues related to this topic, and to support the primary
    efforts of the industry to secure their networks by clearing away red
    tape or regulatory ambiguities that would impair their ability to
    effectively plan and execute their cybersecurity responsibilities.
    CSRIC is a good example of this process--a stakeholder-led effort
    providing the Commission with ``in the trenches'' insight into proven
    means to mitigate cyber risks.
        I would add that to the extent that Congress grants the FCC
    additional authority and resources in this area, I would faithfully
    administer those legal and administrative provisions.

        Question 14. In 2013, the GAO was asked to assess the extent to
    which the FCC has effectively implemented appropriate information
    security controls for the initial components of the Enhanced Secured
    Network (ESN) project, and implemented appropriate procedures to manage
    and oversee it.
        The GAO found that in the initial components of the ESN project the
    FCC did not effectively implement appropriate information security
    controls. To help strengthen IT and project management controls over
    the ESN project, GAO recommended in a report released, that the
    Commission establish standard operating procedures related to project
    management. These guidance documents instruct officials in performing
    key project management activities, including cost estimating,
    scheduling and project scope management.
        Has the FCC implemented these recommendations? And if so do you
    feel that the FCC is currently and effectively protecting its systems
    and information from cyber threats?
        Answer. The FCC's Office of Managing Director has briefed me
    concerning this issue. I understand that the FCC has come a long way
    since this report detailed the systems in place in 2012. According to
    OMD staff, we followed through on the recommendations where they were
    not superseded by new systematic improvements and built on this
    program's initial successes to develop a much more secure network that
    complies with appropriate guidelines, corrects all deficiencies and
    adheres to legal requirements. Please be assured that I will be working
    to ensure that we do not repeat past IT failures.

        Question 15. If not, do you intend to remedy this problem? If so,
    how, If not, why not?
        Answer. I have been advised that the FCC has implemented all
    recommendations and that GAO has verbally committed to closing all 18
    open findings.

        Question 16. Broadband access is not a luxury, it is a necessity.
    The Internet expands opportunities for commerce and strengthens our
    economy.
        In 2015, the GAO recommended that the FCC more clearly establish
    the outcomes it intends to achieve when addressing broadband adoption
    barriers faced by demographic groups with low levels of adoption.
        GAO recommended that the FCC revise its strategic plan to more
    clearly indicate whether addressing broadband adoption barriers is a
    major priority, if so, to identify the outcomes the commission will
    strive to achieve.
        Did the Commission follow these recommendations?
        Answer. Since I have assumed leadership of the Commission, I have
    made it clear that I intend to support efforts that make broadband more
    widely available and affordable for all Americans. To that end, I have
    identified several outcomes that I intend to pursue and have begun
    implementing changes to strengthen the Commission's work on broadband
    adoption.
        Notably, I have laid out a Digital Empowerment Agenda that proposes
    concrete steps the Commission and Congress can take to support
    broadband deployment. I believe this agenda could help bring broadband
    and digital opportunity to our Nation's economically deprived areas. By
    promoting infrastructure investment, the Commission can encourage
    competition that will bring affordable broadband to more communities
    and increase adoption. Additionally, my agenda promotes
    entrepreneurship and innovation so that firms are incentivized to
    create businesses that rely on these networks and bring further
    economic opportunity to low-income Americans.

        Question 17. As Chairman, you will have an opportunity to craft a
    strategic plan for the agency. How do you intend to address broadband
    adoption barriers in your strategic plan?
        Answer. As Chairman, closing the digital divide, and thus
    addressing barriers to broadband adoption, will be a core priority
    reflected in the Commission's strategic plan. The reality is that
    people cannot adopt broadband where it is not available. Thus, our
    strategic plan will emphasize a consistent approach to supporting
    broadband deployment across the Nation and particularly in rural
    America.
        Indeed, the Commission is already working towards these strategic
    goals. In just the first two months of my Chairmanship, we have adopted
    a plan to advance 4G LTE across the country, approved $2 billion in
    support for building out networks to high-cost areas through the
    Connect America Fund, and established a Broadband Deployment Advisory
    Committee that will bring together stakeholders to develop a model code
    for municipalities that wish to encourage broadband investment in their
    areas. The Commission is also poised to open comprehensive reviews of
    the legal frameworks for wireline and wireless infrastructure
    deployment. Our goal is to identify regulatory barriers and evaluate
    how the Commission can alleviate them. In turn, our aim is to give
    broadband providers a greater incentive and ability to deploy,
    maintain, and upgrade their networks to meet the growing demand for
    broadband--and for more affordable broadband options to be available
    for low-income and rural consumers.
        In the strategic plan, we will build on these efforts and set goals
    for providing greater regulatory flexibility, streamlining our rules,
    and encouraging investment in next generation networks. Beyond that, we
    will stress interagency coordination on efforts to overcome barriers to
    broadband adoption and outreach to communities about the benefits of
    broadband.

        Question 18. Access to broadband Internet is crucial to improving
    access to information, quality of life, and economic growth. A number
    of mobile and fixed-or-in-home-Internet service providers have begun
    using a practice known as usage-based pricing. This involves the
    provider changing the price to customers, or adjusting their service,
    based on the amount of data they use.
        In late 2014, GAO said that the FCC collaborate with providers to
    develop a voluntary code of conduct to improve communication and
    understanding of data use and pricing by Internet consumers. GAO
    concluded that this would help to ensure that the application of usage-
    based pricing for fixed Internet would not conflict with the public
    interest.
        Has the FCC complied with this recommendation? If not do you plan
    to direct the FCC's compliance?
        Answer. The prior Administration recognized that ``the number of
    consumer complaints regarding [usage-based pricing] by fixed providers
    appears to be small and that UBP plans are less common for fixed
    Internet customers than mobile customers, it is unclear that any action
    is needed at this time.'' Nonetheless, we will continue to monitor
    complaints and provider offerings for trends that might indicate that
    more action is needed.

        Question 19. Do you feel that creating a voluntary code of conduct
    is or would be enough to protect consumers from predatory pricing
    structures?
        Answer. As the prior Administration recognized, ``it is unclear
    that any action is needed at this time.'' Nonetheless, we will continue
    to monitor complaints and provider offerings for trends that might
    indicate that more action is needed.

        Question 20. Do you believe that broadband service providers are
    providing clear, and transparent pricing and service, and speed
    information to their customers?
        Answer. Based on agency filings and a review of complaints to the
    agency, it appears that most broadband service providers are providing
    adequate information to their customers.
                        Attachment--August 2016 Dissent
                          Federal Communications Commission--FCC 16-107
                 DISSENTING STATEMENT OF COMMISSIONER AJIT PAI
    Re: 2014 Quadrennial Regulatory Review--Review of the Commission's
    Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section
    202 of the Telecommunications Act of 1996, MB Docket No. 14-50; 2010
    Quadrennial Regulatory Review--Review of the Commission's Broadcast
    Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the
    Telecommunications Act of 1996, MB Docket No. 09-182; Promoting
    Diversification of Ownership in the Broadcasting Services, MB Docket
    No. 07-294; Rules and Policies Concerning Attribution of Joint Sales
    Agreements in Local Television Markets, MB Docket No. 04-256.

        ``The more things change, the more they stay the same.'' When
    French journalist Jean-Baptiste Alphonse Kerr first expressed that
    sentiment 167 years ago, he obviously didn't have the FCC's media
    ownership regulations in mind. But his words ring true as the
    Commission finally gets around to finishing the 2010 Quadrennial
    Review.
        Congress instructed the FCC to reassess its media ownership
    regulations every four years. It also provided that the agency
    ``shall'' get rid of outdated rules.\1\ This was because Congress
    recognized that regulations designed to promote localism, diversity,
    competition, and investment in media could have exactly the opposite
    effect if they didn't keep up with the times.
    ---------------------------------------------------------------------------
        \1\ Compare Telecommunications Act Sec. 202(h) (FCC ``shall''
    review media ownership rules on quadrennial basis, ``shall determine
    whether any of such rules are necessary in the public interest,'' and
    ``shall repeal or modify'' any unnecessary regulations) with Letter
    from Tom Wheeler, Chairman, FCC, to the Honorable Anna Eshoo, U.S.
    House of Representatives (Mar. 18, 2016) (``Section 629 of the
    Communications Act is explicit: The Commission shall . . . adopt
    regulations to assure the commercial availability [of set-top
    boxes].''), available at http://go.usa.gov/xDjbA; Statement of Chairman
    Tom Wheeler, August 2016 Open Meeting Press Conference at 1:03:08,
    http://go.usa.gov/xDjbJ (``Make no mistake, we will obey the law. The
    law [section 629] says, `the Commission shall' provide for competitive
    choice [in navigation devices]. We will obey the law.'').
    ---------------------------------------------------------------------------
        But here, the FCC has failed on both counts. In terms of timing,
    the Commission has thumbed its nose at Congress for the past eight-and-
    a-half years by refusing to complete a single quadrennial review. This
    is the regulatory equivalent of completing your figure-skating routine
    for the 2010 Vancouver Winter Olympics after the Olympic flame has been
    extinguished at the closing ceremony of the 2016 Games in Rio de
    Janeiro. What took us so long? Based on the ``substance'' of this
    Order, I have no idea, for the agency essentially does nothing but
    stick its head in the sand.
        The changes to the media marketplace since the FCC adopted the
    Newspaper-Broadcast Cross-Ownership Rule in 1975 have been
    revolutionary. Over the last four decades, newspaper circulation and
    advertising revenue have plummeted, and hundreds of publications have
    gone out of business. The Internet has become the go-to source for
    news. National and regional cable news networks have flourished. The
    days of Americans waiting for the morning newspaper to learn about what
    is going on around them are long gone. Yet, instead of repealing the
    Newspaper-Broadcast Cross-Ownership Rule to account for the massive
    changes in how Americans receive news and information, we cling to it.
        And over the near-decade since the FCC last finished a
    ``quadrennial'' review, the video marketplace has transformed
    dramatically. Especially with the rise of over-the-top video, the
    market is now more competitive than ever. Never before have Americans
    been able to choose from such a wide array of content. They now demand
    to view that content when they want and on the device of their choice.
    And high-profile news is increasingly made and distributed on online
    video networks that didn't even exist just a few years ago.\2\ Yet,
    instead of loosening the Local Television Ownership Rule to account for
    the increasing competition to broadcast television stations, we
    actually tighten that regulation.
    ---------------------------------------------------------------------------
        \2\ See, e.g., Daniel Victor & Mike McPhate, ``Critics of Police
    Welcome Facebook Live and Other Tools to Stream Video,'' The New York
    Times (July 7, 2016) (discussing ``the power of [online] video,
    especially when live, in drawing public attention''), available at
    http://nyti.ms/29lMKOS.
    ---------------------------------------------------------------------------
        And instead of updating the Local Radio Ownership Rule, the Radio-
    Television Cross-Ownership Rule, and the Dual Network Rule, we merely
    rubber-stamp them.
        The more the media marketplace changes, the more the FCC's media
    regulations stay the same.
        This ostrich of an Order is not at all what Congress envisioned.
    And it is a thumb in the eye of the United States Court of Appeals for
    the Third Circuit, too. Five years ago, the Third Circuit vacated the
    FCC's definition of ``eligible entity.'' \3\ Earlier this year, the
    Third Circuit said ``enough is enough'' \4\ and demanded that the FCC
    take prompt action on its ``stalled efforts to promote diversity in the
    broadcast industry.'' \5\ So what does the Commission do here in
    response to the court? Precisely one thing: It re-adopts the exact same
    ``eligible entity'' definition that the Third Circuit rejected in 2011!
    ---------------------------------------------------------------------------
        \3\ Prometheus Radio Project v. FCC, 652 F.3d 431, 437 (3d Cir.
    2011).
        \4\ Prometheus Radio Project v. FCC, 824 F.3d 33, 37 (3d Cir. 2016)
    (quoting Public Citizen Health Research Group v. Chao, 314 F.3d 143,
    158 (3d Cir. 2002)) (emphasis and internal quotation marks omitted)
    (Prometheus III).
        \5\ Id.
    ---------------------------------------------------------------------------
        This proceeding is proof of this agency's plenary and purposeful
    abdication of its statutory duty. It shows that this Commission that
    does not believe it is accountable to Congress or the courts. And it is
    evidence that unless Congress or a court steps in and takes action,
    this is the way that it will continue to be: The Commission's media
    ownership regulations will never be relaxed. Efforts to promote
    diversity will remain stalled. The law, the marketplace, and common
    sense will continue to be ignored.
        Today's result is all the more unfortunate because compromise was
    well within reach. For example, a bipartisan majority of commissioners
    was willing to repeal the outdated Newspaper-Broadcast Cross-Ownership
    Rule. But for some reason, we were told that this rule would not be
    repealed unless all commissioners agreed. And sadly, one chose to
    exercise that veto.
        As someone who has been on the losing end of more 3-2 votes than I
    care to remember, I am baffled by this new requirement for unanimity.
    We've been told for years by the FCC's leadership that 3-2 votes are
    what democracy is all about. Except, I guess, when it isn't. Or more
    precisely, 3-2 votes are what democracy is all about so long as the
    commissioners are divided cleanly along party lines. As a result, we
    end up keeping a rule on the books that almost no one at the FCC
    actually believes make sense any longer. This is a shame because our
    regulations should always be shaped only by the facts and law--not
    crass political considerations.
        If I were to detail all of this Order's deficiencies, my dissenting
    statement would be almost as long as the Order itself (161 pages). In
    the interest of space, I'll focus on what I consider to be the Order's
    most problematic aspects: (1) doubling down on the Newspaper-Broadcast
    Cross-Ownership Rule; (2) tightening, rather than loosening, the Local
    Television Ownership Rule; and (3) failing to take meaningful action to
    promote diversity.
                                       I.
        The newspaper industry is in crisis. Since the FCC adopted the
    Newspaper-Broadcast Cross-Ownership Rule in 1975, approximately one-
    quarter of newspapers in the United States have gone out of
    business.\6\ That's over 400 publications.\7\ In the last decade,
    newspapers have shut down in Denver, Tucson, Cincinnati, Honolulu,
    Tampa, and other major cities.\8\ Other newspapers, including the New
    Orleans Times-Picayune and the Birmingham News, no longer publish on a
    daily basis.\9\ Still others, such as the Seattle Post-Intelligencer,
    have abandoned the print medium altogether and now exist only as a
    digital platform.\10\
    ---------------------------------------------------------------------------
        \6\ See Letter from Rick Kaplan, General Counsel and Executive Vice
    President, and Jerianne Timmerman, Senior Vice President and Deputy
    General Counsel, NAB, to Marlene H. Dortch, Secretary, FCC, MB Docket
    No. 14-50, 09-182, at 2 (July 7, 2016) (NAB July 7 Ex Parte Letter).
        \7\ See id.
        \8\ See Newspaper Death Watch: Chronicling the Decline of
    Newspapers and the Rebirth of Journalism, http://
    newspaperdeathwatch.com/ (Aug. 16, 2016).
        \9\ See id.
        \10\ See William Yardley and Richard Perez Pena, ``Seattle Paper
    Shifts Entirely to Web,'' The New York Times (Mar. 16, 2009), available
    at http://nyti.ms/2bM4ytt.
    ---------------------------------------------------------------------------
        Since 1975, the population of the United States has increased 49
    percent while total newspaper circulation is down by one-third, with
    the substantial majority of that decline occurring since 2000.\11\
    Adjusting for inflation, newspaper advertising revenues, both print and
    digital, are down 64 percent since 2000, from $65.8 billion to $23.6
    billion.\12\ And since 2000, employment in newspaper newsrooms has
    dropped by 42 percent.\13\
    ---------------------------------------------------------------------------
        \11\ Daily circulation was 60.655 million in 1975, 55.773 million
    in 2000, and 40.420 million in 2014. See Newspaper Association of
    America, Newspaper Circulation Volume, http://bit.ly/2b2r9f2 (linked
    spreadsheet) (Aug. 16, 2016).
        \12\ See NAB FNPRM Comments at 71.
        \13\ See NAB July 7 Ex Parte Letter at 3-4.
    ---------------------------------------------------------------------------
        Earlier this month, Warren Buffett, whose company owns 32
    newspapers across the country, summarized the bleak picture: ``[L]ocal
    newspapers continue to decline at a very significant rate. And even
    with the economy improving, circulation goes down, advertising goes
    down, and it goes down in prosperous cities, it goes down in areas that
    are having urban troubles, it goes down in small towns--that's what
    amazes me.'' \14\
    ---------------------------------------------------------------------------
        \14\ Jake Sherman and Anna Palmer with Daniel Lippman, ``EXCLUSIVE
    PLAYBOOK INTERVIEW: Warren Buffett!--Dem EMAIL HACK `wider than
    believed'--KASIE HUNT engaged--B'DAY: David Brooks,'' Politico, http://
    politi.co/2aMjqC1 (Aug. 11, 2016).
    ---------------------------------------------------------------------------
        Of course, newspaper reporters continue to do important work
    throughout our country each and every day. Many were recently reminded
    of the impact that their stories can have through the 2015 film
    Spotlight, which won the Academy Award for Best Picture. The movie
    focused on The Boston Globe's investigation into widespread child sex
    abuse by Roman Catholic priests in and around Boston--reporting that
    ended up having a worldwide impact on the Catholic Church. But given
    the newspaper industry's profound financial troubles, it is becoming
    harder and harder for publications to do this type of investigatory
    journalism, hold our elected officials to account, and let Americans
    know what is going on in their communities.
        That's why it makes no sense for the government to be discouraging
    investment in the newspaper industry. In this day and age, if you are
    willing to invest in a newspaper, we should be thanking you, not
    imposing regressive regulations. But that is precisely what the
    Commission is doing in this Order by maintaining the Newspaper-
    Broadcast Cross-Ownership Rule.
        Our action (or, to be more accurate, lack of action) is
    particularly unfortunate because broadcasters are well-situated to
    partner with newspapers. The reason is simple. Investments in
    newsgathering are more likely to be profitable when a company can
    distribute information over multiple platforms. This is not just a
    theory. Because the FCC grandfathered newspaper-broadcast combinations
    that predated the 1975 adoption of the Newspaper-Broadcast Cross-
    Ownership Rule, we have seen this theory play out in practice across
    the United States.
        The National Association of Broadcasters has pointed to no fewer
    than 15 studies demonstrating that newspaper-television cross-ownership
    increases the quantity and/or quality of news broadcast by cross-owned
    television stations.\15\ These studies span almost four decades, and
    some were commissioned by the FCC itself. For example, one FCC-
    sponsored study in 2007 found that newspaper cross-owned TV stations
    supply about 7-10 percent more local news coverage and about 25 percent
    more coverage of state and local politics, on average, than non-cross-
    owned stations.\16\ And another FCC-sponsored study that same year
    found that cross-owned TV stations broadcast 11 percent more news
    programming than non-cross-owned stations.\17\ The same is true with
    respect to newspaper-radio cross-ownership. An FCC-sponsored study
    found that a cross-owned radio station is four to five times more
    likely to have a news format than a non-cross-owned station.\18\
    ---------------------------------------------------------------------------
        \15\ NAB FNPRM Comments at 75-76.
        \16\ See Jeffrey Milyo, The Effects of Cross-Ownership on the Local
    Content and Political Slant of Local Television News (2007).
        \17\ See Daniel Shiman, The Impact of Ownership Structure on
    Television Stations' News and Public Affairs Programming (2007).
        \18\ See Craig Stroup, Factors that Affect a Radio Station's
    Propensity to Adopt a News Format (2007).
    ---------------------------------------------------------------------------
        And we need not rely on statistics alone. The record contains
    numerous unrebutted examples of how newspaper-broadcast cross-ownership
    has provided more comprehensive news coverage to communities throughout
    our nation, including Atlanta, Cedar Rapids, Milwaukee, Phoenix, South
    Bend, Spokane, Topeka, and Amarillo.\19\ In Dayton, for example:
    ---------------------------------------------------------------------------
        \19\ See NAA FNPRM Comments at 3-10; Morris Communications Co., LLC
    FNPRM Comments at 17-23.

            Cox Media Group's cross-ownership of the Dayton Daily News and
            CBS affiliate WHIO-TV helped to uncover one of the most
            prominent stories of [2014]: the mismanagement of the
            Department of Veterans Affairs. Working together, journalists
            at the newspaper and television station analyzed the quality of
            care that veterans were receiving, and discovered that the
            Department had paid more than $36 million to settle claims
            resulting from treatment delays. Months of congressional
            inquiries, national and global media studies, and, ultimately,
            the resignation of the Secretary of Veterans Affairs followed.
            These treatment delays would not have come to light had it not
            been for the dogged efforts of both the newspaper and
            television reporters, working together.\20\
    ---------------------------------------------------------------------------
        \20\ NAA FNPRM Comments at 5-6 (emphasis in original).

        So in the face of all of this data and evidence, why does the
    Commission choose to retain the Newspaper-Broadcast Cross-Ownership
    Rule? It claims that this regulation remains necessary to promote
    viewpoint diversity.\21\ But the evidence overwhelmingly shows that
    there is little if any connection between viewpoint diversity and
    ownership.\22\ Most notably, a 2011 FCC-sponsored study found no
    statistically significant relationship between ownership and viewpoint
    diversity, and a 2012 update to that study actually found viewpoint
    diversity to be positively associated with the number of co-owned
    television stations in a market.\23\ Indeed, research generally shows
    that a media outlet's viewpoint is driven by the preferences of its
    audience rather than ownership.\24\
    ---------------------------------------------------------------------------
        \21\ Order at para. 142.
        \22\ See NAB FNPRM Comments at 79-82, App. C (listing 15 studies).
        \23\ See Adam D. Rennhoff and Kenneth C. Wilbur, Local Media
    Ownership and Viewpoint Diversity in Local Television News (2011); Adam
    D. Rennhoff and Kenneth C. Wilbur, Further Revisions to Local Media
    Ownership and Viewpoint Diversity in Local Television News (2012).
        \24\ See, e.g., Matthew Gentzkow and Jesse M. Shapiro, What Drives
    Media Slant? Evidence from U.S. Daily Newspapers, 78 ECONOMETRICA 35
    (2010); Sendhil Mullainathan and Andrei Shleifer, The Market for News,
    95 AM. Econ. Rev. 1031 (2005).
    ---------------------------------------------------------------------------
        But the larger problem with the Commission's conclusion is that it
    ignores the realities of the modern media marketplace. This isn't the
    1970s anymore. Most Americans don't wait for the morning newspaper or
    the 11:00 PM newscast to learn what's going on around the globe or at
    home. That world set sail with The Love Boat. Today, most Americans get
    the information they want when they want it by going online and
    scouring a wide variety of sources, including digital-only news outlets
    and social networks such as Facebook and Twitter. When it comes to
    news, we can now choose from an amazingly diverse array of options.
    Last year, for example, Pew Research Study counted 143 news providers
    in Denver alone.\25\
    ---------------------------------------------------------------------------
        \25\ See Pew Research Center, Local News in a Digital Age at 4
    (Mar. 5, 2015).
    ---------------------------------------------------------------------------
        The record contains a plethora of statistics detailing how the
    Internet has transformed the American people's consumption of news and
    information, and I don't believe that it is necessary to review all of
    them here. Instead, I'll focus on two other glaring problems with the
    Commission's analysis that render its decision to retain the Newspaper-
    Broadcast Cross-Ownership rule in the name of viewpoint diversity
    fatally flawed.
        First, the Commission contends that newspapers and broadcast
    television stations ``continue to be the predominant providers of local
    news and information upon which consumers rely.'' \26\ But then, in
    order to justify retaining the prohibition against common ownership of
    a newspaper and a radio station, the Commission also claims that
    ``broadcast radio stations continue to be an important source of
    viewpoint diversity in local markets.'' \27\
    ---------------------------------------------------------------------------
        \26\ Order at para. 142.
        \27\ Id.
    ---------------------------------------------------------------------------
        These statements place the Commission on the horns of a dilemma.
    The only reason that the Commission performs a stunning about-face and
    suddenly claims that radio stations are a significant source of
    viewpoint diversity \28\ is so that it can retain the Newspaper-Radio-
    Cross Ownership Rule (which generally prohibits cross-ownership). But
    if radio stations are an important source of viewpoint diversity, then
    they must be included in the total number of voices in the market. And
    if that is true, then there is no way that the agency's Newspaper-
    Broadcast Cross-Ownership Rule can survive.\29\
    ---------------------------------------------------------------------------
        \28\ See, e.g., 2014 Quadrennial Regulatory Review--Review of the
    Commission's Broadcast Ownership Rules and Other Rules Adopted Pursuant
    to Section 202 of the Telecommunications Act of 1996 et al., MB Docket
    No. 14-50, Further Notice of Proposed Rulemaking and Report and Order,
    29 FCC Rcd 4371, 4435-36, paras. 144-45 (2014) (2014 Quadrennial Review
    Notice).
        \29\ Conversely, if radio stations are not an important source of
    viewpoint diversity, then the Newspaper-Radio Cross-Ownership Rule must
    be eliminated.
    ---------------------------------------------------------------------------
        Take the New York City media market, for example. If there are five
    major newspapers, over twenty television stations, and about 60 radio
    stations in the market contributing to viewpoint diversity, then how
    can prohibiting a newspaper from purchasing a single one of those radio
    stations or television stations be necessary to preserve viewpoint
    diversity? With over 80 voices in the market, how can common ownership
    of just two cause a problem?
        Second, the Commission discounts the rise of the Internet by
    arguing that most of the news found there is provided by websites
    affiliated with traditional providers, such as newspapers.\30\ (This
    myopic conclusion itself would be news to a wide variety of popular
    online upstarts, ranging from locally-focused platforms such as The
    Texas Tribune, which earned two Online News Association awards last
    year for explanatory and topical reporting, and Voice of San Diego,
    which has won national awards for its investigative reporting, to more
    nationally-focused platforms like BuzzFeed, Vox Media, and Yahoo!
    News.) But the FCC's regulation only precludes the common ownership of
    a broadcast station and a newspaper if the newspaper publishes at least
    four times a week. So, for example, newspapers such as the Patriot-News
    of Harrisburg, Pennsylvania, or the Press-Register of Mobile, Alabama,
    which print only three days a week but update their websites
    constantly, may be commonly owned with a television station.
    ---------------------------------------------------------------------------
        \30\ See Order at para. 148 & note 389.
    ---------------------------------------------------------------------------
        How does this make any sense? If the content that a newspaper
    provides on its website is critical to the retention of the Newspaper-
    Broadcast Cross-Ownership Rule, why should it matter how many days a
    week it circulates a print edition? So long as newspapers regularly
    update their websites with breaking news and information, why should a
    newspaper that offers a print edition seven days a week be treated
    differently than one that only distributes three print editions a week?
    Or a newspaper that has chosen to go entirely online? Why should we
    create an incentive for newspapers to cut back on print editions in
    order to get more favorable regulatory treatment? The Order offers no
    answers to these questions. That there are no good ones highlights how
    outdated the Newspaper-Broadcast Cross-Ownership Rule has become. At a
    time when more and more content is being consumed over the Internet, it
    makes no sense to base ownership regulations on whether a news outlet
    distributes a print edition and/or how many times a week it does so.
    The product, not pulp, is what matters.
        Perhaps recognizing its difficulty in justifying the retention of
    the Newspaper-Broadcast Cross-Ownership, the Commission purports to
    ``provide for a modest loosening'' of it.\31\ However, the modest steps
    that it sets forth are entirely inadequate and largely illusory.
    ---------------------------------------------------------------------------
        \31\ Order at para. 130.
    ---------------------------------------------------------------------------
        To begin with, the Commission adopts an express exception ``for
    proposed combinations involving a failed or failing newspaper,
    television station, or radio station.'' \32\ But the newspaper industry
    has explained that this standard's specific criteria ``will not open
    any opportunities for newspaper companies to obtain investment from the
    media industry, and certainly will not serve the public interest.''
    \33\ And there is an even more fundamental problem with this exception.
    By the time that a newspaper has failed or is failing, it might be too
    late to save and/or might not be an attractive investment opportunity
    for a broadcaster. Our goal should be to maintain newspapers as healthy
    and vibrant institutions. We shouldn't deprive them of the investment
    they need to thrive until they are at death's doorstep and then hope
    that someone will swoop in at the last minute to save them.
    ---------------------------------------------------------------------------
        \32\ Order at para. 173.
        \33\ Letter from Danielle Coffey and Kurt Wimmer, Newspaper
    Association of America, to Marlene H. Dortch, Secretary, FCC, MB Docket
    Nos. 14-50, 09-182, 07-294, at 2 (Aug. 9, 2016).
    ---------------------------------------------------------------------------
        Additionally, the Commission states that companies may obtain a
    waiver of the Newspaper-Broadcast Cross-Ownership Rule if they are able
    ``to show that their proposed combination would not unduly harm
    viewpoint diversity in the local market.'' \34\ What does this mean?
    Who knows? Curiously, the Commission rejects re-adopting the four-
    factor test that applied to waiver requests under the vacated 2007
    modification of the Newspaper-Broadcast Cross-Ownership Rule because it
    claims that those factors (e.g., whether the combined entity would
    significantly increase the amount of local news in the market) ``would
    be vague, subjective, difficult to verify, and costly to enforce.''
    \35\ But the waiver standard adopted by the Commission today is far
    vaguer and more subjective than the 2007 standard for it lacks any
    objective criteria. ``Knowing it when we see it'' is hardly the stuff
    of administrative precision.
    ---------------------------------------------------------------------------
        \34\ Order at para. 187.
        \35\ Order at note 542.
    ---------------------------------------------------------------------------
        Moreover, we've seen this song-and-dance before. When the
    Commission adopted JSA restrictions two years ago, it set up a similar
    waiver process to preserve beneficial JSAs that it publicly touted when
    useful for defending its new policy.\36\ But that process was a sham.
    For the entire time that the Commission's JSA restrictions were in
    effect, not one waiver request was granted. (That may have been one
    reason why Congress, in an overwhelming bipartisan vote, required that
    the FCC protect existing JSAs.\37\) I have little doubt that the same
    thing will happen here.
    ---------------------------------------------------------------------------
        \36\ See 2014 Quadrennial Review Notice, 29 FCC Rcd at 4540, para.
    364.
        \37\ See Consolidated Appropriations Act, 2016, Sec. 628, Pub. L.
    No. 114-113 (2015).
    ---------------------------------------------------------------------------
        Where does that leave us? In the face of overwhelming evidence of
    the newspaper industry's dire condition, the benefits that newspaper-
    broadcast cross-ownership could bring, and a media marketplace
    transformed by the Internet, the Commission chooses to leave in place
    an absurdly antiquated rule that reduces investment in the newspaper
    business. The FCC's decision is not based on the law or the facts in
    the record. Nor is it based on common sense. For example, does anyone
    seriously believe that allowing a newspaper to buy a single radio
    station in any American city would harm anyone? But politics--in
    particular, fear of partisan special interests in the Beltway that have
    banged the same sad drum for years (ironically, mainly online)--has
    made it impossible for us to repeal this rule.
        At this rate, absent congressional or judicial intervention, the
    Newspaper-Broadcast Cross-Ownership Rule will outlive print newspapers
    themselves.
                                      II.
        In this Order, the Commission refuses to relax its Local Television
    Ownership Rule. This rule prohibits anyone from owning two television
    stations in a Designated Market Area (DMA) unless at least one of those
    stations falls outside the top-four stations in the market (top-four
    prohibition) and there are at least eight independently-owned
    television stations in the DMA (eight-voices test).
        However, record evidence demonstrates that the eight-voices test
    lacks any foundation in economics or the realities of today's
    television marketplace. Indeed, repealing that test would promote
    competition and localism in the video marketplace.
        For one, the eight-voices test has no basis in modern competition
    theory and is inconsistent with fundamental antitrust principles.\38\
    The test often prohibits mergers that ``are unlikely to have adverse
    competitive effects and ordinarily require no further analysis,''
    according to the United States Department of Justice & Federal Trade
    Commission's Horizontal Merger Guidelines.\39\ And it often prohibits
    transactions that do not create a presumption of increased market power
    according to those guidelines.\40\ Simply put, in no other industry
    does the government condition mergers and acquisitions on the
    maintenance of eight independent competitors in a market. Indeed, under
    modern antitrust principles, the government does not impose any rigid
    screen at all.\41\
    ---------------------------------------------------------------------------
        \38\ Kevin W. Caves and Hal J. Singer, An Economic Analysis of the
    FCC's Eight Voices Rule, at 9-16 (July 19, 2016) (Caves & Singer
    Study), attached to Letter from Rick Kaplan, General Counsel and
    Executive Vice President, and Jerianne Timmerman, Senior Vice President
    and Deputy General Counsel, NAB, to Marlene H. Dortch, Secretary, FCC,
    MB Docket Nos. 14-50, 09-182 (July 19, 2016).
        \39\ See Caves & Singer Study at 12, 14.
        \40\ See id. at 14.
        \41\ See id. at 13. Rather, the starting point for merger analysis
    is the Herfindahl-Hirschman Index (HHI), which is used to assess how
    much individualized scrutiny a transaction requires.
    ---------------------------------------------------------------------------
        For this reason, economists Kevin Caves and Hal Singer have
    concluded that the eight-voices test ``does not constitute a reliable
    competitive screening device. Instead, [it] imposes a presumption of
    anticompetitive effects over transactions that would not justify such a
    presumption under standard antitrust practice. [It] compounds this
    error by making its presumption impossible to overturn, regardless of
    evidence of procompetitive merger-driven efficiencies.'' \42\
    ---------------------------------------------------------------------------
        \42\ See id. at 15-16.
    ---------------------------------------------------------------------------
        Caves and Singer's analysis of advertising prices in all local
    television markets bears out their conclusion.\43\ Controlling for
    other factors, they found no statistically meaningful difference
    between advertising rates in markets with eight or more independently
    owned and operated television stations and advertising rates in markets
    with fewer voices.\44\ Moreover, their econometric analysis
    demonstrated that reducing the number of voices in a market has the
    impact of lowering advertising rates rather than raising them, and that
    this effect holds true whether or not there are fewer than eight voices
    in a market.\45\ Specifically, in markets with fewer than eight voices,
    local advertising rates are expected to fall by 2.9 percent with each
    decrease in the voice count. And in markets with eight or more voices,
    such rates are expected to fall by 2.4 percent with each decrease in
    the voice count.\46\
    ---------------------------------------------------------------------------
        \43\ See id. at 21-28.
        \44\ See id. at 24-26.
        \45\ See id. at 26-28.
        \46\ See id. at 28.
    ---------------------------------------------------------------------------
        These findings are fatal to the eight-voices test. First, they
    demonstrate that there is no meaningful competitive difference between
    markets with fewer than eight voices and those with eight or more. In
    each type of market, the response to the reduction in the voice count
    is similar; advertising rates are statistically the same controlling
    for other factors. There is no significance to maintaining eight
    independently owned and operated stations in a market. Thus, that
    number is entirely arbitrary.
        Second, the Caves and Singer findings demonstrate that reducing the
    voice count by one in a market with fewer than eight voices leads to a
    more competitive market, not a less competitive one. As reviewed above,
    when the voice count is reduced by one in such markets, advertising
    prices fall, not rise, in a statistically significant way.\47\
    ---------------------------------------------------------------------------
        \47\ Unable to formulate a substantive response to the Caves &
    Singer Study, the Commission refuses to consider it, claiming that it
    was submitted too late. See Order at note 147. But this study merely
    provides additional empirical support for arguments that the National
    Association of Broadcasters (NAB) has advanced throughout the 2010 and
    2014 Quadrennial Reviews. See, e.g., NAB FNRPM Comments at 39, 55
    (arguing that the eight-voices test is ``arbitrary'' and ``makes no
    sense''). As such, the Commission may not simply disregard it, and the
    authority that the Order relies upon for doing so is inapposite. In
    Verizon v. FCC, 770 F.3d 961, 968 (D.C. Cir. 2014), for example, the
    D.C. Circuit said that the Commission was not obliged to consider a
    late-filed proposal for partial forbearance. Here, however, the Caves &
    Singer Study and NAB's accompanying ex parte letter advanced no new
    proposal. Rather, they provided support for the NAB's longstanding
    proposal in this proceeding for the FCC to eliminate the eight-voices
    test. Similarly, in Globalstar, Inc. v. FCC, 564 F.3d 476, 484 (D.C.
    Cir. 2009), the D.C. Circuit ruled that a party had not provided the
    Commission with a fair opportunity to pass upon an argument by raising
    it the day an order had been adopted. That case, however, deal with an
    entirely new claim of inadequate notice. Here, by contrast, NAB merely
    submitted additional support for a claim that it has advanced for years
    during this proceeding. Moreover, the Caves & Singer Study was
    submitted weeks before this Order was adopted, not the day of adoption.
    While the Commission notes that UCC cites rule 1.415(d) (``No
    additional comments may be filed unless specifically requested or
    authorized by the Commission'') in opposing consideration of the Caves
    & Singer Study, see Order at note 147 (citing 47 C.F.R.
    Sec. 1.1415(d)), the note to that rule specifically provides that in
    some rulemaking proceedings, ``interested persons may also communicate
    with the Commission and its staff on an ex parte basis, provided that
    certain procedures are followed.'' In this proceeding, ex parte
    communications were specifically allowed by the Commission. See 2014
    Quadrennial Review Notice, 29 FCC Rcd at 4546, para. 378. Indeed, this
    Order is replete with references to ex parte communications. See, e.g.,
    Order at note 204. Moreover, NAB indisputably complied with all
    relevant procedures in submitting the Caves & Singer Study. Finally, it
    is important to recognize that the Commission frequently accepts and
    relies upon data and studies that it receives shortly before an order
    is adopted. See, e.g., Amendment of Part 15 of the Commission's Rules
    for Unlicensed Operations in the Television Bands, Repurposed 600 MHz
    Band, 600 MHz Guard Bands and Duplex Gap, and Channel 37 et al., ET
    Docket No. 14-165, Report and Order, 30 FCC Rcd 9551, 9636, 9639,
    nn.523, 539 (2015) (citing and relying upon a 128-page technical study
    and a 16-page technical study that had been submitted to the Commission
    as an ex parte filing seventeen days before the Order's adoption).
    ---------------------------------------------------------------------------
        Another indication that the eight-voices test impedes competition
    and localism in the video marketplace is the mass of record evidence
    showing that common ownership of television stations in local
    television markets leads to more local news and information
    programming.\48\ According to the Commission, ``[t]he data demonstrate
    that the duopolies permitted subject to the restrictions of the current
    rule have created tangible public interest benefits for viewers in
    local television markets that offset any potential harms associated
    with common ownership. Such benefits include substantial operating
    efficiencies, which potentially allow a local broadcast station to
    invest more resources in news or other public interest programming that
    meets the needs of its local community.'' \49\ In other words, common
    ownership increases competition and localism by creating stronger,
    better-funded competitors.
    ---------------------------------------------------------------------------
        \48\ See, e.g., Order at note 86.
        \49\ Order at para. 38.
    ---------------------------------------------------------------------------
        But the eight-voices test denies those benefits produced by common
    ownership to viewers in most of our Nation's television markets. And
    those markets are the ones where the efficiencies of common ownership
    can yield the greatest benefits: smaller markets where advertising
    dollars (typically the source of funding for local programming) are
    scarce.
        In contrast, the Order's justification for maintaining the eight-
    voices test is utterly devoid of factual support. Indeed, all the
    Commission can muster in support of the eight-voices test is two
    paragraphs of unsupported assertions. In the first, the Order says:

            Nearly every market with eight or more full-power television
            stations--absent a waiver of the Local Television Ownership
            Rule or unique circumstances--continues to be served by each of
            the Big Four networks and at least four independent competitors
            unaffiliated with a Big Four network. Competition among these
            independently owned stations serves an important function by
            motivating both the major network stations and the independent
            stations to improve their programming, including increased
            local news and public interest programming. This competition is
            especially valuable during the parts of the day in which local
            broadcast stations do not transmit the programming of
            affiliated broadcast networks and rely on local content
            uniquely relevant to the stations' communities.\50\
    ---------------------------------------------------------------------------
        \50\ Order at para. 56 (footnotes and citations omitted).

        Let's unpack this. The Commission begins by arguing that
    competition between stations affiliated with the Big Four networks and
    at least four independent competitors unaffiliated with a Big Four
    network ``serves an important function by motivating both the major
    network stations and the independent stations to improve their
    programming, including increased local news and public interest
    programming.'' \51\ But what evidence does the Commission cite to
    support this proposition? What evidence does it marshal to show that
    the presence of stations unaffiliated with a Big Four network improves
    the quality of programming in a television market? What evidence does
    it produce to show that such independent stations lead to increased
    local news and public interest programming? The answer to each of these
    questions is the same: None.\52\
    ---------------------------------------------------------------------------
        \51\ Id.
        \52\ Neither does the Order offer any explanation for why stations
    unaffiliated with a Big Four network play a distinct competitive role
    in the marketplace than those affiliated with a Big Four network. Many
    of these stations, after all, are not independent stations. Rather,
    they are affiliated with a national network, such as the CW or
    Univision.
    ---------------------------------------------------------------------------
        And even if the Commission were able to offer some evidence to back
    up its assertions, the question would then become: Why is it important
    to have at least four independent competitors unaffiliated with a Big
    Four network in a market? Why wouldn't two or three suffice? Or, on the
    other hand, why not five or six? The Order makes a feeble attempt to
    address those questions in its next paragraph:

            We continue to believe the minimum threshold maintained by the
            eight-voices test helps to ensure robust competition among
            local television stations in the markets where common ownership
            is permitted under the rule. The eight-voices test increases
            the likelihood that markets with common ownership will continue
            to be served by stations affiliated with each of the Big Four
            networks as well as at least four independently owned and
            operated stations unaffiliated with these major networks. Also,
            because a significant gap in audience share persists between
            the top-four stations in a market and the remaining stations in
            most markets--demonstrating the dominant position of the top-
            four-rated stations in the market--we continue to believe that
            it is appropriate to retain the eight-voices test, which helps
            to promote at least four independent competitors for the top-
            four stations before common ownership is allowed. Accordingly,
            we retain the eight-voices test.\53\
    ---------------------------------------------------------------------------
        \53\ Order at para. 57 (footnotes and citations omitted).

        This explanation brings to mind the classic Peggy Lee song: Is That
    All There Is?
        To be sure, I agree that the eight-voices test ``increases the
    likelihood that markets with common ownership will continue be served
    by stations affiliated with each of the Big Four networks as well as at
    least four independently owned and operated stations unaffiliated with
    these major networks.'' \54\ But again, the key question is: Why is it
    important to have ``four independently owned and operated stations
    unaffiliated with these major networks?'' The only justification the
    Commission provides is the assertion that ``a significant gap in
    audience share persists between the top-four stations in a market and
    the remaining stations in most markets.'' \55\ But even assuming that
    to be true, how does this justify the choice of maintaining ``four
    independently owned and operated stations unaffiliated with the major
    networks,'' as opposed to two, three, five, or six? The Order offers no
    explanation, cites no evidence, and refers to no economic theory. It
    appears that the number four, and thus the eight in the ``eight-voices
    test,'' was plucked out of thin air. Moreover, if there is a
    significant gap in audience share between the top-four stations and the
    other stations in a market, wouldn't that suggest common ownership of
    non-top four stations would be pro-competitive, insofar as it would
    allow for stronger competitors to the top-four stations to emerge?
    ---------------------------------------------------------------------------
        \54\ Id.
        \55\ Id.
    ---------------------------------------------------------------------------
        But it gets even worse. The Commission readopts the restrictions on
    joint sales agreements (JSAs) that were vacated by the Third Circuit in
    Prometheus III--restrictions which have the practical effect of
    tightening the Local Television Ownership Rule. The Commission provides
    little new analysis to justify these limits. Rather, it
    ``incorporate[s] by reference the rationale articulated'' in its 2014
    Order.\56\ As such, rather than repeat at length the arguments that I
    advanced against the Commission's JSA decision two years ago, I
    similarly incorporate by reference the relevant portions of my 2014
    dissenting statement.\57\ However, it is worth emphasizing three
    points.
    ---------------------------------------------------------------------------
        \56\ Order at para. 62.
        \57\ 2014 Quadrennial Review Notice, 29 FCC Rcd at 4590-95, 4597-99
    (Dissenting Statement of Commissioner Ajit Pai).
    ---------------------------------------------------------------------------
        First, just as the Commission is unable to point to any evidence to
    justify retaining the eight-voices test, neither is it able to cite any
    evidence supporting its decision to readopt JSA restrictions. Back in
    2014, the Commission based its decision on its hypothesis that a JSA
    allows one station to exert undue influence over another station's
    programming decision and operations. But as I pointed out at the time,
    the Commission couldn't come up with ``a single example of a station in
    a JSA exercising undue influence over another station.'' \58\ Indeed,
    it couldn't round up ``a single instance where a JSA has allowed one
    station to influence a single programming decision of another
    station.'' \59\
    ---------------------------------------------------------------------------
        \58\ Id. at 4597.
        \59\ Id. (emphasis in original).
    ---------------------------------------------------------------------------
        Flash forward two years. Despite the fact that numerous television
    stations across the country have participated in JSAs for many years,
    the Commission still cannot find a single case in which one station in
    a JSA has exercised undue influence over another station or influenced
    a single programming decision of another station. The Commission's JSA
    analysis remains unjustified jabberwocky.
        Second, in my 2014 dissenting statement, I reviewed at length all
    of the public interest benefits that have been produced by JSAs.\60\ In
    this Order, the Commission does not contest any of those benefits.
    Instead, it claims that ``[t]he arguments that television JSAs should
    not be attributed because they produce public interest benefits are
    essentially indistinguishable from arguments that the ownership limits
    should be relaxed because common ownership produces public interest
    benefits. We acknowledge and address these arguments throughout;
    however, we ultimately determine that the Local Television Ownership
    Rule should be retained with a minor modification to the contour
    standard.'' \61\
    ---------------------------------------------------------------------------
        \60\ See id. at 4592-95.
        \61\ Order at note 176.
    ---------------------------------------------------------------------------
        But here's the problem with that evasion. Maintaining the status
    quo with respect to JSAs is not the equivalent of relaxing the Local
    Television Ownership Rule. Rather, as the Third Circuit recognized,
    ``[a]ttribution of television JSAs modifies the Commission's ownership
    rules by making them more stringent.'' \62\ And the Commission's JSA
    decision here does not contain any rationale whatsoever for why the
    local television ownership rule should be tightened. In fact, it
    concludes that the benefits of making the rule more stringent are
    outweighed by the harms of taking that step.\63\
    ---------------------------------------------------------------------------
        \62\ Prometheus III, 824 F.3d at 58.
        \63\ See Order at para. 38.
    ---------------------------------------------------------------------------
        So on one side of the ledger, we have uncontested evidence of the
    public interest benefits yielded by JSAs. And on the other side of the
    ledger, the Commission points to no evidence of any corresponding harms
    and does not advance any argument for why the Local Television
    Ownership Rule should be made any stricter. Yet, it does just that.
    This deliberate refusal to make a ``rational connection between the
    facts found and the choice made'' defines arbitrary and capricious
    decision-making.\64\
    ---------------------------------------------------------------------------
        \64\ Prometheus III, 824 F.3d at 40 (quoting Motor Vehicle
    Manufacturers Association of the United States, Inc. v. State Farm
    Mutual Automobile Insurance Co., 463 U.S. 29, 43 (1983).
    ---------------------------------------------------------------------------
        Third, the decision to attribute television JSAs is fundamentally
    inconsistent with the Commission's other recent attribution
    decisions.\65\ Consider, for example, last year's repeal of the
    attributable material relationship (AMR) rule in the context of
    wireless spectrum. The AMR rule used to require that the revenues of
    any company leasing or reselling more than 25 percent of the spectrum
    capacity of a small business's wireless license must be attributed to
    that small business. In 2015, however, the same Commission majority as
    here concluded that the AMR rule was ``overbroad'' and ``we no longer
    need[ed] a bright-line, across-the-board, attribution rule to ensure
    that a small business makes independent decisions about its business
    operations.'' \66\ This followed a 2014 decision where the same
    Commission majority as here waived the AMR rule for a private equity
    firm that leased 100 percent of its spectrum capacity to our Nation's
    two largest wireless carriers. There, the Commission reasoned that the
    firm in question would not necessarily be ``unduly influence[d]'' by
    the wireless carriers leasing all of their spectrum capacity because of
    the firm's representation that the ``agreements at issue did not confer
    any'' such influence.\67\
    ---------------------------------------------------------------------------
        \65\ See Letter from Rick Kaplan, General Counsel and Executive
    Vice President, and Jeannine Timmerman, Deputy General Counsel and
    Senior Vice President, NAB, to Marlene H. Dortch, Secretary, FCC, MB
    Docket Nos. 14-50, 09-182, at 2-3 (July 29, 2016).
        \66\ Updating Part 1 Competitive Bidding Rules et al., WT Docket
    Nos. 14-170 et al., Report and Order, Order on Reconsideration of the
    First Report and Order, Third Order on Reconsideration of the Second
    Report and Order, Third Report and Order, 30 FCC Rcd 7493, 7504, para.
    21 (2015).
        \67\ Grain Management, LLC's Request for Clarification or Waiver of
    Section 1.2110(b)(3)(iv)(A) of the Commission's Rules et al., WT Docket
    Nos. 05-211 et al., Order, 29 FCC Rcd 9080, 9084-85, paras. 13-14
    (2014) (Grain Waiver Order).
    ---------------------------------------------------------------------------
        So here is where we are today. Under the Commission's rules, a
    small business can lease 100 percent of its spectrum capacity to a
    Fortune 50 wireless carrier--that is, engage in pure, profitable
    arbitrage--without any attribution requirement being triggered. Yet, as
    a result of today's Order, attribution will automatically kick in
    whenever one television station sells more than 15 percent of another
    television station's advertising time.
        How does this make any sense? The Commission purports to attribute
    television JSAs because selling 16 percent of a station's advertising
    inventory gives licensees ``the opportunity, ability, and incentive to
    exert significant influence over the brokered station.'' \68\ Yet, one
    company leasing all of another company's spectrum does not give rise to
    the same concerns regarding undue influence? A company depending upon a
    100 percent spectrum lease is plainly more subject to undue influence
    than a television station that agrees to let another station sell 16
    percent of its advertising. However, the Order offers no reason why the
    latter relationship, but not the former, triggers an attribution
    requirement. As I've written before in commenting upon the 2014 waiver
    of the AMR rule, ``A foolish consistency may be the hobgoblin of little
    minds, but a deliberate inconsistency is the ogre of arbitrariness.''
    \69\
    ---------------------------------------------------------------------------
        \68\ 2014 Quadrennial Review Notice, 29 FCC Rcd at 4527, para. 340.
        \69\ Grain Waiver Order, 29 FCC Rcd at 9091 (Dissenting Statement
    of Commissioner Ajit Pai).
    ---------------------------------------------------------------------------
                                      III.
        The Commission spends almost 50 pages discussing the issue of
    ownership diversity in this Order. That's certainly a lot of talk. But
    what concrete action does this Commission take to advance diversity in
    the Order? One thing: It reinstates the very same ``eligible entity''
    definition that the Third Circuit rejected five years ago. To describe
    this decision is to discredit it.
        During my time at the Commission, I have made it a priority to
    encourage greater diversity in the broadcast industry. Each summer, for
    example, I meet with those participating in the Broadcast Leadership
    Training (BLT) Program, run by the National Association of Broadcasters
    Education Foundation. The BLT program educates a diverse group of
    executives who aspire to be station owners or managers by exposing them
    to ``the fundamentals of purchasing, owning, and running a successful
    operation of radio and television stations.'' \70\ Each time, I come
    away inspired by their spirit and optimistic about the future of
    broadcasting. These sessions also reinforce my determination to do what
    I can at the FCC to expand opportunities in the industry.
    ---------------------------------------------------------------------------
        \70\ See National Association of Broadcasters Education Foundation,
    Broadcast Leadership Training, http://nabef.org/blt/default.asp (last
    visited Aug. 18, 2016).
    ---------------------------------------------------------------------------
        Occasionally, I have been successful. For example, the progress
    that the FCC has been able to make in revitalizing AM radio, the
    Nation's most diverse broadcast service, has been a big step forward.
    But too often, the Commission has fallen short. The FCC's leadership
    has prioritized setting aside spectrum for unlicensed operations in the
    post-auction television band over saving low-power television stations
    that often serve minority communities. It has allowed the Advisory
    Committee for Diversity in the Digital Age to lay dormant. And in this
    Order, it falls short once again.
        I am particularly disappointed that the Commission refuses once
    again to adopt an incubator program, which would allow established
    broadcasters to provide financing and other forms of assistance to new
    entrants looking to break into the broadcasting business. This proposal
    enjoys the support of civil rights organizations, including the
    National Urban League, LULAC, the Rainbow/PUSH Coalition, the National
    Council of La Raza, the Minority Media and Telecommunications Council,
    and the Asian American Justice Center.\71\ It enjoys the support of
    industry.\72\ One would think that moving forward with this initiative
    would be a no-brainer.
    ---------------------------------------------------------------------------
        \71\ See, e.g., Initial Comments of the Diversity and Competition
    Supporters in Response to the Third Further Notice of Proposed
    Rulemaking, MB Docket No. 07-294, at 19-21 (July 30, 2008).
        \72\ See, e.g., NAB FNPRM Comments at 92-93; NAA FNRPM Comments at
    15.
    ---------------------------------------------------------------------------
        The Commission claims that an incubator program would be too
    difficult to administer and consume too many staff resources.\73\ But
    it is difficult to take that argument seriously. When the FCC's
    leadership thinks that an issue is important, it is more than willing
    to adopt regulations that are difficult to administer and consume an
    enormous amount of staff resources, far more than any incubation
    program would. Moreover, as detailed in the Order itself,\74\ the
    Commission has expended a lot of staff resources studying the broadcast
    diversity issue. If we think that diversity is important, why not spend
    less time researching the issue and more time actually doing something
    to make things better?
    ---------------------------------------------------------------------------
        \73\ See Order at paras. 319-21.
        \74\ See Order at paras. 246-70.
    ---------------------------------------------------------------------------
        In my view, the real reason why the Commission refuses to adopt an
    incubator program is ideological in nature. In order to incentivize
    broadcasters to incubate a new entrant, the FCC would allow
    participating broadcasters to own one more radio station in a market
    than they otherwise could under the local ownership rule. A small
    number oppose this because they fear that this slight and targeted
    relaxation of our ownership rules would promote concentration in the
    radio industry. But my response to them is simple. The benefits of
    incubating a new voice in a market would far outweigh any such harm,
    especially since an incubator is likely to be most valuable in small-
    town markets where finding broadcast spectrum is easy but the economics
    of the broadcast business are hard.
                                     * * *
        As we bring our 2010 Quadrennial Review to an end, it is worth
    stepping back and looking at the FCC's actions over the past few years
    from a broader perspective. In the many years in which the 2010
    Quadrennial Review has been pending, the Commission has approved the
    $13.8 billion purchase by our Nation's largest cable operator (Comcast)
    of one of our Nation's top four broadcast networks (NBC). It 1has
    signed off on the $49 billion merger of our Nation's second and fifth
    largest multichannel video programming distributors (AT&T and DIRECTV).
    And it has blessed a single $79 billion transaction combining our
    Nation's second, third, and sixth largest cable providers (Charter,
    Time Warner Cable, and Bright House).
        Yet today, after many years of delay and ``deliberation,'' the FCC
    tells us the prospect of a newspaper purchasing a single television or
    radio station for relative pocket change still shocks the conscience?
    One television station selling more than 15 percent of another's
    advertising inventory in order to cut costs is a dire threat to
    competition? A program to incubate diverse voices in the broadcast
    industry is a bridge too far because it would allow some companies to
    own an additional radio station in a market? It makes no sense at all.
        Soon, I expect outside parties to deliver us to the denouement: a
    decisive round of judicial review. I hope that the court that reviews
    this sad and total abdication of the administrative function finds,
    once and for all, that our media ownership rules can no longer stay
    stuck in the 1970s consistent with the Administrative Procedure Act,
    the Communications Act, and common sense. The regulations discussed
    above are as timely as ``rabbit ears,'' and it's about time they go the
    way of those relics of the broadcast world. I am hopeful that the
    intervention of the judicial branch will bring us into the digital age.
        For all of these reasons, I dissent.
                                     ______

       Response to Written Questions Submitted by Hon. Amy Klobuchar to
                                 Hon. Ajit Pai
        Question 1. I've heard from local broadcasters in Minnesota who are
    concerned about being able to complete the incentive auction repacking
    process in the required time. In Minnesota we face additional
    challenges because of our short construction season. For example,
    International Falls is home to the coldest annual average temperature
    in the contiguous United States. At 1,505 feet, the KPXM Tower in
    International Falls is also the tallest structure in Minnesota. I can't
    imagine any of us would want to climb to the top of it in February.
    Chairman Pai, how will the FCC work with broadcasters to develop
    resilient repacking plans that take into account local conditions and
    unexpected events like severe weather?
        Answer. FCC staff has actively engaged with the broadcast industry,
    the wireless industry, antenna manufacturers, tower crews, and other
    stakeholders for more than two years to develop the Transition
    Scheduling Plan, which was released in January. The plan details how
    the FCC will determine the order and schedule of stations' channel
    moves. The plan is designed to minimize viewer inconvenience,
    efficiently allocate the resources necessary for broadcasters to
    operate on their new frequencies, and ensure that winning bidders for
    wireless licenses in the forward auction can deploy in the 600 MHz band
    in a timely manner. The Closing and Channel Reassignment Public Notice
    that signals the formal close of the auction will also detail the final
    schedule and explain how the Commission staff adjusted the schedule to
    reflect the realities of weather and major events in places like
    International Falls.

        Question 2. Rural call completion is an important issue for me. It
    is simply unacceptable that residents and businesses in rural areas
    have to cope with calls that never connect. My Improving Rural Call
    Completion and Reliability Act, which I introduced with Senators Tester
    and Thune, passed the Commerce Committee in January. Chairman Pai, how
    could a registry of intermediate providers as is called for in my bill
    help improve service for rural consumers?
        Answer. Wherever you live--whether it's Pittsburg, Kansas, or
    Pittsburgh, Pennsylvania--and whatever technology you use--whether it's
    a landline, a cellphone, or VoIP--your phone should ring shortly after
    your number is dialed. The pending bipartisan rural call completion
    legislation would help the Commission target providers in the path of a
    long distance call, known as intermediate providers, who may not be
    completing calls to rural areas in order to avoid the higher costs
    associated with delivering such calls. The legislation could help
    increase the reliability of intermediate providers by requiring them to
    register with the agency and comply with service quality standards, and
    in the process improve call completion to rural areas. Commission staff
    stands ready to work with your staff and provide technical assistance
    on the proposed legislation.

        Question 3. I have been advancing legislation to make broadband
    deployment easier by requiring coordination between state departments
    of transportation and broadband providers during construction projects
    so that they only have to ``dig once.'' A provision based on my
    legislation passed the Commerce Committee in January as part of the
    MOBILE NOW Act. Chairman Pai, how can dig once policies improve
    broadband access in rural America?
        Answer. I believe we must make dig once policies a central tenet of
    our Nation's transportation policy. The concept is simple: every road
    and highway construction project across America, including those in
    rural areas, should include the installation of the conduit that can
    carry fiber optic cables. Installation is the most expensive part of
    any new broadband deployment, so it's common-sense to leverage
    construction that will take place anyway to put in place the necessary
    conduit. Cities like Seattle enacted dig once policies long ago and now
    have extensive public conduit that the private sector has used to lower
    the cost of deployment. Policies like dig once can provide innovators
    with greater incentives to build out their own broadband networks,
    upgrade their equipment, and focus on serving their customers. That's
    especially important in rural areas, where the private-sector case for
    broadband deployment is much more difficult. Dig once has been
    successful on the local level, and I hope it soon becomes the law of
    the land.

        Question 4. Chairman Pai, you recently announced the formation of
    the Broadband Deployment Advisory Committee to make recommendations and
    offer best practices on accelerating broadband deployment. While best
    practices and policy recommendations can be useful, many local
    governments do not have the resources or expertise to implement them.
    How can the FCC support local governments as they look to implement
    recommendations from the Broadband Deployment Advisory Committee?
        Answer. One of the key tasks the Broadband Deployment Advisory
    Committee will be asked to do is draft for the Commission's
    consideration a model code for broadband deployment, which will cover
    topics like local franchising, zoning, permitting, and rights-of-way
    regulations. The model code will be a particularly valuable tool for
    communities that desire access to broadband but lack, as you note, the
    resources or the expertise to develop policies conducive to deployment.
    The FCC last week announced the membership and structure of the BDAC,
    and it will commence deliberations this month.

        Question 5. As co-chair of the Next Generation 911 Caucus, I know
    our Nation's 911 system is in urgent need of upgrades. I am the Senate
    sponsor of Kari's Law, which would ensure that multi-line telephone
    systems allow direct dial 911 without the need for prefixes. The bill
    passed this Committee in January and I am hopeful it will be considered
    by the full Senate soon. Chairman Pai, I thank you for your advocacy on
    this important issue. Based on your experience, are there technological
    solutions for those that use multiline telephone systems to implement
    the reforms contained in Kari's Law?
        Answer. First, I am heartened to see that Kari's Law is one step
    closer to becoming the law of the land. We all owe Kari's father, Hank
    Hunt, a debt of gratitude for his decision to press forward and help
    ensure that every call to 911 goes through. Second, I look forward to
    working with Congress on these and other important issues as Chairman
    of the FCC, and I salute you for your leadership on this and other
    public safety issues. Third, this is an issue that has been near and
    dear to me and that I've championed for several years at the FCC. As a
    Commissioner, I worked with hotel chains, for example, to promote their
    voluntary efforts to provide 911 direct dial capabilities to hotel
    guests. The FCC itself instituted direct dialing through the basic
    programming parameters of its multi-line telephone system (MLTS). This
    is a simple best practice that should be universally implemented on all
    MLTS and campus/in-building systems.

        Question 6. Today access to broadband is a critical part of
    students' learning. However, 41 percent of those living on rural Tribal
    lands do not have access to broadband. Some have proposed a ``Tribal
    priority'' for the E-Rate program to close the digital divide as it
    relates to Indian education. Chairman Pai, what more can the FCC do to
    make sure that students living on reservations have access to broadband
    in school?
        Answer. I share your concern for closing the digital divide. In my
    first remarks as Chairman of the Federal Communications Commission to
    the agency's staff, I stressed that one of my top priorities would be
    to close the gap between ``those who can use cutting-edge
    communications services and those who do not.''
        In February, the Commission adopted the Tribal Mobility Fund Phase
    II, which will direct approximately $340 million to build out 4G LTE
    coverage on Tribal lands. Additionally, I circulated to my colleagues
    an order that would assist carriers serving Tribal lands in deploying,
    upgrading, and maintaining modern high-speed networks. The proposal
    would allow carriers serving Tribal lands a greater ability to recover
    operating expenses, thus improving the financial viability of operating
    a broadband network serving Tribal lands.
        E-rate plays a vital role in helping schools and libraries connect
    to high-speed Internet. In the past two funding years alone, E-rate
    disbursed over $66 million to schools and libraries identified as
    Tribal. This is why I have called E-rate ``a program worth fighting
    for.''
        Before I became Chairman, I proposed a student-centered E-rate
    program that would reduce the amount of paperwork that E-rate
    applicants must file to receive funds, cut back on the complexity of
    current E-rate regulations, and reduce wasteful spending. Additionally,
    my proposed changes would significantly increase the support that rural
    and remote applicants, many of whom are Tribal schools and libraries,
    receive. Such changes would account for the significant barriers that
    many Tribal schools and libraries face in attempting to connect to
    high-speed broadband. I look forward to working on these issues further
    during my tenure as Chairman.

        Question 7. Chairman Pai, what can we do to increase broadband
    coverage on Tribal lands more broadly?
        Answer. I share your desire to address the digital divide on Tribal
    lands, where approximately 40 percent of the population live in census
    blocks lacking fixed broadband of 25/3 Mbps. In the first three months
    of my Chairmanship, we've already taken a number of actions to connect
    those on Tribal lands. As discussed above, at the February Open
    Meeting, we adopted the Tribal Mobility Fund Phase II, which will
    direct approximately $340 million to build out 4G LTE coverage on
    Tribal lands. I have also asked the Commission's Office of Native
    Affairs and Policy to coordinate with the Wireless Telecommunications
    Bureau and the Wireline Competition Bureau to help direct that funding
    to reach Tribal members in remote areas that would otherwise be without
    access to next generation services.
        Additionally, in early February, I circulated to my colleagues an
    order that would assist carriers serving Tribal lands in deploying,
    upgrading, and maintaining modem high-speed networks. The order
    recognizes that carriers serving Tribal lands incur costs that other
    rural carriers do not face, resulting in significantly higher operating
    expenses to serve very sparsely populated service areas. The proposal
    would allow carriers serving Tribal lands a greater ability to recover
    operating expenses, thus improving the financial viability of operating
    a broadband network serving Tribal lands. I also directed the Universal
    Service Administrative Company to give additional time to Tribal
    families living in the remote reaches of the Navajo Nation to comply
    with a certification deadline for the Lifeline program. We must work to
    bring the benefits of the digital age to all Americans, and we will
    continue to pursue common-sense regulatory reforms to close the digital
    divide on Tribal lands.

        Question 8. A provision based on my Rural Spectrum Accessibility
    Act--which I introduced last Congress with Senator Fischer--was
    included in the MOBILE NOW Act that passed the Commerce Committee in
    January. This provision would require the FCC to explore ways to
    provide incentives for wireless carriers to lease unused spectrum to
    rural or smaller carriers in order to expand wireless coverage in rural
    communities. Chairman Pai, what incentives could be useful for
    encouraging large carriers to lease spectrum to smaller, rural
    carriers?
        Answer. Promoting the deployment of robust mobile broadband service
    in rural communities is one of my top priorities as Chairman. High-
    speed mobile coverage is increasingly critical to rural America for
    everything from the app economy to precision agriculture.
        The Commission's spectrum licensing rules are intended to lower
    regulatory barriers to spectrum leasing for small and rural carriers,
    including rules that streamline the regulatory process for leasing
    spectrum. Our rules also provide parties with great flexibility in the
    partitioning and disaggregation of licensed spectrum. We will continue
    to explore ways to eliminate unnecessary rules and regulatory barriers
    in order to encourage small rural carriers (among others) to expand
    wireless coverage in rural communities to deliver mobile broadband to
    all Americans.
        In addition, because deployment by rural carriers on leased
    spectrum counts toward the primary licensee's construction benchmark,
    adopting and enforcing meaningful construction requirements that
    require licensees to build out in rural parts of their license area in
    order to keep their license at the end of the term incentivizes
    carriers to lease spectrum to rural carriers. In other words, in these
    situations, large carriers have incentives to lease spectrum to rural
    carriers that have the ability and expertise to deploy coverage in
    rural areas.
        We also need to continue to think about further steps in this area.
    For instance, in my September 2016 speech outlining my Digital
    Empowerment Agenda, I proposed to increase the buildout obligation
    associated with an initial license to 95 percent and extend license
    terms from 10 to 15 years. This would substantially increase rural
    coverage and also make build-out more economically feasible for
    carriers by providing an additional five years of certainty.

        Question 9. The FCC has taken a number of enforcement actions
    against companies for cramming, including a record level joint FCC-FTC
    settlement with AT&T. Consumers have enough to worry about with ever-
    changing technologies and plan options. They need to know that they are
    being billed fairly. Chairman Pai, how do you plan to combat cramming
    and prevent scammers from moving on to new technologies?
        Answer. Cramming often results in significant consumer harm because
    the unauthorized charges are often small amounts and can go undetected
    by consumers for many months, and they are typically not disclosed
    clearly or conspicuously on a multipage telephone bill. Further,
    consumers who receive electronic bills or who have authorized automatic
    deductions from their bank accounts for payment of monthly invoices are
    especially vulnerable, because they may not even look at their bills
    prior to payment. Under Section 201(b) of the Act, the Commission can
    pursue action against telecommunications service providers that bill
    for unauthorized services or assess other unauthorized charges on
    consumer telephone bills. As you note, the Commission has taken a
    number of enforcement actions to protect consumers in this area, and we
    will continue to aggressively pursue companies that seek to scam and
    cram consumers in violations of our rules. In addition, we have
    actively been monitoring consumer complaints and other sources of
    information to determine whether scammers are migrating to other
    platforms or technologies to cram charges on customers' bills. As
    scammers extend cramming-like actions to other technologies, we will
    carefully explore our authority to take enforcement action against this
    type of behavior.

        Question 10. Consumers have made it clear they do not want
    robocalls invading their privacy and disrupting their lives. Earlier
    this year, I joined Senator Markey and several other Senators on this
    Committee in calling for the FCC to protect consumers from receiving
    unwanted and intrusive robocalls. Chairman Pai, I was glad to see in
    your response that you share our commitment to combatting robocalls.
    One particular strategy that has been effective is the Robocall Strike
    Force made up of more than 30 companies in the telecommunications
    industry. Will you commit to continue to convene the Robocall Strike
    Force with the support of the FCC?
        Answer. Robocalls are consistently a top consumer complaint to the
    FCC from the public. It is reported that U.S. consumers have been
    bombarded by an estimated 2.4 billion robocalls in a single month. Last
    month, the Commission took important next steps to combat the scourge
    of robocalls by proposing rules to permit providers to block spoofed
    robocalls when the caller uses an unassigned or invalid phone number.
    The proposed rules also would allow providers to block spoofed
    robocalls when the subscriber to a particular telephone number requests
    that calls originating from that number be blocked (sometimes called a
    ``Do-Not-Originate'' request). We also seek comment on further steps
    the Commission could take to protect consumers and empower voice
    service providers to block illegal robocalls. I strongly support the
    good work done by the industry-led Robocall Strike Force, which made
    significant progress toward arming consumers with call blocking tools
    and identifying ways voice providers can proactively block illegal
    robocalls before they ever reach the consumer's phone. The Commission
    is committed to helping industry and consumers stop unwanted robocalls,
    including by encouraging companies to adopt robocall blocking
    technologies and working to develop comprehensive solutions to prevent,
    detect, and filter unwanted robocalls.
                                     ______

     Response to Written Questions Submitted by Hon. Richard Blumenthal to
                                 Hon. Ajit Pai
        Introduction. FCC rulemaking is governed by the Administrative
    Procedure Act (``APA''). Before adopting the 2015 Open Internet Order,
    the agency established a clear record demonstrating the need for the
    rules. The FCC also explained the legal framework governing its
    conclusion that broadband Internet access service (``BIAS'') should be
    reclassified as a telecommunications service.
        The order found that consumers make decisions on broadband
    primarily based on the service's speed and ability to transmit their
    data. BIAS providers market and price their services based on this
    transmission capability--and not on any sort of information storage and
    processing function that BIAS providers may offer on the side (such as
    e-mail).
        And consumers do not confuse their broadband provider with their e-
    mail provider or the websites they visit. They are able to distinguish
    between content on the Internet and the provider of their access to
    that content.
        Therefore, the FCC rightly concluded that ``broadband Internet
    access service is marketed today primarily as a conduit for the
    transmission of data across the Internet.'' For that reason, broadband
    Internet access is a telecommunications service that offers the public
    the ability to transmit information of users' choosing, rather than an
    information service.
        As the Open Internet Order explained, this legal classification is
    essential to the adoption of rules prohibiting Internet blocking and
    other forms of unreasonable discrimination by broadband providers. When
    it struck down previous iterations of the Open Internet rules finally
    upheld last year, the DC Circuit Court of Appeals explained that the
    rules against blocking ``impos[e] de facto common carrier status on
    providers of broadband Internet access service in violation of the
    Commission's [earlier] classification of those services as information
    services.''
        In other words, there is no clear path--under the Commission's
    current statutory authority and controlling judicial precedent--to
    preserve the FCC's rules against blocking, throttling, and paid-
    prioritization in the absence of the telecommunications services
    classification.
        You have suggested that you view the Open Internet Order and its
    classification decisions as a mistake. Yet you testified that you
    understand the value of the open internet, which the order's legal
    framework and rules protect.
        As you know, any steps you take to undo the rules and the
    Commission's prior legal interpretations would be governed by the APA,
    just as the adoption of those rules were.

        Question 1. Do you agree that a change in administration alone is
    not a sufficient basis to undo an independent regulatory agency's
    rulemaking?
        Answer. I fully support and will abide by the Supreme Court's
    decision in FCC v. Fox Television Stations, in which the Court laid out
    the legal standard for reversing an agency's rulemaking: ``An agency
    may not . . . depart from a prior policy sub silentio or simply
    disregard rules that are still on the books. . . . And of course the
    agency must show that there are good reasons for the new policy. But it
    need not demonstrate to a court's satisfaction that the reasons for the
    new policy are better than the reasons for the old one; it suffices
    that the new policy is permissible under the statute, that there are
    good reasons for it, and that the agency believes it to be better,
    which the conscious change of course adequately indicates.'' 556 U.S.
    502, 515 (2009) (emphasis in original).

        Question 2. Do you agree that you would need a factual record and
    legal analysis sufficient to reverse course yet again, just two years
    after the order was adopted and less than one year after it was upheld
    in court, should you decide to pursue your promise to undo the Open
    Internet Order?
        Answer. As stated above, the FCC is bound by the standard outlined
    by the Supreme Court in FCC v. Fox Television Stations governing the
    legality under the Administrative Procedure Act of agency action that
    represents a policy change.

        Question 3. Do you agree that if an independent commission reviews
    a past decision, it should do so with an open mind and not pre-judge
    whether facts and circumstances have changed?
        Answer. Yes.

        Question 4. In light of the DC Circuit's several decisions on this
    issue, can you articulate any basis for retaining rules that prohibit
    broadband providers from blocking, throttling, and prioritizing
    websites unreasonably in the absence of the telecommunications services
    classification you so often attack? Or is it your intention to
    eliminate these rules--ignoring the factual record and legal analysis
    that undergirds them--based on your disagreement with that legal
    framework?
        Answer. I support a free and Open Internet and I oppose Title II. I
    am currently reviewing the Commission's options for moving forward with
    respect to this issue.
                                     ______

        Response to Written Questions Submitted by Hon. Brian Schatz to
                                 Hon. Ajit Pai
        Question 1. Have you asked for information from either AT&T or Time
    Warner about the transaction, including information related to how any
    spectrum licenses presently held by Time Warner or its subsidiaries
    will be dealt with in the transaction?
        Answer. Congress has not tasked the Commission with reviewing
    mergers or transactions generally. Instead, section 310 of the
    Communications Act extends our authority only to transfers of licenses
    or the transfer of a control of a corporate entity that holds FCC
    licenses. With respect to AT&T's proposed acquisition of Time Warner,
    the companies have not filed any application for the transfer of
    control of a license or transfer of control of a corporate entity that
    holds a license, and the companies have stated they do not anticipate
    that Time Warner will transfer any of its FCC licenses to AT&T. As a
    result, the Commission has not asked for information from either party.

        Question 2. Has the FCC conducted its own analysis of the
    transaction to make sure that it was not set up to evade FCC review? If
    not, please conduct such an analysis.
        Answer. Because the companies have not filed and apparently will
    not file any application for the transfer of control of a license or
    transfer of control of a corporate entity that holds a license, the
    Commission has not conducted an analysis pursuant to section 310 of the
    Communications Act of the kind you describe.

        Question 3. What is the FCC's authority over a transaction that has
    been structured to evade FCC review?
        Answer. The test for FCC jurisdiction remains whether the parties
    to a transaction seek a transfer of control of a license, or of a
    corporate entity that holds a license. If there is no such transfer
    sought, the agency lacks jurisdiction under the Communications Act to
    review the matter. However, should a party transfer FCC licenses
    without having first obtained any required regulatory pre-approvals,
    the FCC would have authority to take action, including by issuing
    monetary forfeitures and/or revoking any unlawfully transferred
    licenses. For example, if Time Warner were to transfer a broadcast
    license to AT&T without first seeking Commission approval, the
    Commission could revoke that license and prohibit AT&T from
    broadcasting in that licensed area on that licensed channel.

        Question 4. The FCC has recognized that there is a need for
    providers to have access to low, mid and high-band spectrum. Each meets
    different requirements because, among other things, they have different
    propagation characteristics. I was very encouraged that the Commission
    made high-band spectrum available for unlicensed use in the recent
    Spectrum Frontiers proceeding. But, I understand that recent studies
    from the Wi-Fi Alliance and others indicate that there will be a
    significant shortfall of mid-band unlicensed spectrum in the upcoming
    years.
        Do you agree that there is a need to identify additional mid-band
    spectrum for unlicensed use?
        Answer. Yes.

        Question 5. What options are the Commission exploring to meet this
    now-well documented need?
        Answer. The Commission is exploring a number of paths toward
    meeting the need for more unlicensed spectrum that could be used for
    innovative technologies like Wi-Fi and Bluetooth.
        For instance, we continue to work aggressively to identify
    additional unlicensed spectrum in the 5 GHz band. Currently, we are
    performing testing to determine whether unlicensed might share the 5.9
    GHz band with transportation services. This band is particularly
    attractive because it is adjacent to spectrum that is already used by
    unlicensed.
        We also have made spectrum available at 3.5 GHz that includes
    provisions for ``licensed-light'' operation that is similar to
    unlicensed. And, we have made an additional 7 GHz available for
    unlicensed at 64-71 GHz, which together with existing rules permitting
    unlicensed operations in the 57-64 GHz creates a huge 14 GHz band ripe
    for innovative use.
        Finally, we stand ready to work with Congress to identify more
    opportunities to free up spectrum for unlicensed use. One bill we've
    actively engaged on is the ``MOBILE NOW Act,'' which calls for
    identifying 100 MHz of spectrum for unlicensed below 6 GHz.

        Question 6. In the Middle Class Job and Tax Relief Act, Congress
    identified the need for additional unlicensed spectrum and requested
    the FCC and NTIA to conduct studies on 5350-5470 MHz and 5850-5925 MHz
    bands. I understand that after 5 years, the studies have not provided
    us with a way forward at 5350 MHz, and the FCC continues to examine
    prospects for sharing at 5850 MHz. In the meantime, the need for
    additional unlicensed spectrum has continued to grow, as evidenced by
    recent spectrum needs studies.
        If sharing in the 5350-5470 MHz band is not feasible, what are the
    alternatives?
        Answer. As I've noted several times before, this Committee deserves
    credit for drawing attention to the 5 GHz band in the 2012 Act.
    Congress directed the affected agencies to evaluate known and proposed
    spectrum sharing technologies and risks to Federal users if unlicensed
    wireless devices were allowed to operate in the 5.850-5.925 GHz band.
        But right now, this band is designated for vehicle to vehicle use.
    I have directed the Commission's staff to move ahead expeditiously with
    this matter while maintaining a data-driven process designed to elicit
    the best engineering solutions and allay concerns about co-existence.
        There are also a number of bands the FCC teed up in its Spectrum
    Frontiers proceeding, which focuses on spectrum above 24 GHz. Some of
    this spectrum could be used for unlicensed operations; the agency is
    actively studying this issue.

        Question 7. A number of Wi-Fi companies believe that 6 GHz is a
    potential opportunity for unlicensed designation. Would you agree that
    this is a good band to examine for unlicensed use?
        Answer. I favor examining as many bands as possible for potential
    innovative uses, and would be happy to work with you on the 6 GHz band
    in particular.

        Question 8. What are the next steps you'd recommend to move forward
    here?
        Answer. I am aware that the Wi-Fi industry is exploring ideas for
    accessing spectrum above 6 GHz. It is far too early to know whether
    this effort will bear fruit, but I can assure you we will encourage
    innovation and consider any potential new technologies and services
    within the one year period that I have mentioned in previous
    statements. The lack of service rules will not impede technological
    development or innovative band use--we will do whatever is necessary to
    get the spectrum out there, put the bands on the table and let the
    engineers and the marketplace help us decide the best use.
                                     ______

        Response to Written Question Submitted by Hon. Edward Markey to
                                 Hon. Ajit Pai
        Question. In 2015, I sent a letter to the FCC urging the Commission
    to keep the Boston FCC office open. This office promotes public safety
    by preventing communications interference involving local police
    departments and emergency response organizations, among other
    functions. I shared my concern that reducing and relocating Boston's
    agents could disconnect the FCC from local incidents, potentially
    challenging the FCC's ability to maintain the 24-hour response
    standard. Instead of eliminating this office, the FCC restructured its
    local field offices and maintained the Boston office. What are your
    future plans for this important Boston office?
        Answer. I agree with you on the importance of FCC field offices. As
    I stated in my statement on the 2015 field reorganization plan, ``The
    Enforcement Bureau's field agents perform essential work. They resolve
    interference that threatens public safety communications. They ferret
    out pirate radio operators. And they play a critical role in ensuring
    that everyone complies with the Commission's rules.'' (My statement is
    available at https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-
    81A2.pdf.) Regarding the Boston field office, a Senior Agent was
    recently selected for that office and is responding to area signal
    interference complaints. The Enforcement Bureau is monitoring the
    office workload and if necessary, will make staffing modification
    recommendations.
                                     ______

        Response to Written Questions Submitted by Hon. Cory Booker to
                                 Hon. Ajit Pai
        Question 1. As you know, I recently joined Senator Blumenthal on a
    letter asking you to explain your decision to revoke Lifeline Broadband
    Provider status for nine companies. Thank you for your response, but
    given your directive to revoke Lifeline Broadband Provider (LBP) status
    for nine carriers, whose petitions for LBP status now return to
    ``pending,'' I wanted to ask you additional questions.
        The very first issue you addressed in your written testimony is
    closing the Digital Divide. The Universal Service Fund is designed to
    do exactly that. Will you commit not to cap the budget for, or
    otherwise curtail, Universal Service programs?
        Answer. As you know, the Universal Service Fund comprises four
    different programs under one umbrella: the rural healthcare program,
    the high-cost program, the E-Rate program, and the Lifeline program.
    Currently, the first three of these programs are subject to caps, based
    on the bipartisan decisions of past Commissions. Going forward, the FCC
    must balance the goals of universal service with the fact that dollars
    are scarce and need to be directed in a fiscally responsible way. As
    Chairman, I intend to continue to balance these factors as the FCC
    implements the statute and aims to close the digital divide.

        Question 2. Broadband providers who saw your recent decision may
    worry that the rug will be pulled out from under their investments if
    they try to enter the market for Lifeline broadband services. What is
    your plan to encourage broadband providers to participate in Lifeline
    so that low-income households have the choice and competition that
    helps us close the Digital Divide?
        Answer. As I said in my statement last month on Lifeline, ``I want
    to make it clear that broadband will remain in the Lifeline program so
    long as I have the privilege of serving as Chairman. And we will
    continue to look for ways to make the program work even better.'' I
    also explained that ``as we implement the Lifeline program--as with any
    program we administer--we must follow the law. . . . Congress gave
    state governments, not the FCC, the primary responsibility for
    approving which companies can participate in the Lifeline program under
    Section 214 of the Communications Act.'' Hundreds of companies have
    been approved to participate in the Lifeline program through a lawful
    process which properly allows the state to designate Lifeline providers
    if they so choose. Indeed, over 99.6 percent of Americans currently
    participating in the broadband portion of the program receive service
    from a company designated within the strictures of the law. New
    companies can enter the program using existing processes, and I
    encourage them to continue to do so.

        Question 3. Former Chairman Wheeler spoke often about competition
    in the wireless broadband market, and that the FCC, Congress,
    companies, and communities must always foster more competition, because
    it is important for lowering prices and fostering innovation. How do
    you view competition in the wireless market right now? Would
    consolidation reduce competition and give consumers in my state less
    choice?
        Answer. I believe the current wireless marketplace is highly
    competitive. The national wireless carriers compete vigorously on price
    and service (recently, all national carriers either introduced new
    unlimited data plans or expanded old ones), and many smaller carriers
    compete to serve consumers in cities and towns across the country. I'm
    committed to fostering continued innovation and investment across the
    mobile ecosystem to promote consumer welfare. Whether consolidation
    would benefit or burden competition is a fact-specific question; for my
    part, I will continue to prioritize regulatory decisions that further
    advance consumer benefits like lower prices, broader availability, and
    more flexible service options.

        Question 4. The FCC blocked broadband policy rules that were set to
    go into effect in March 2017. Among the rules to go into effect were
    data security practices to require ISPs and phone companies to take
    ``reasonable'' steps to protect consumers' information, like Social
    Security numbers, financial and health information, and such. The rules
    were not prescriptive, but would require these companies to basically
    show they had a plan. What is the plan now to protect consumers?
        Answer. Section 222 of the Communications Act gives the FCC
    authority to address violations by a common carrier of its customers'
    privacy. The FCC's Enforcement Bureau has existing guidance in place
    governing how ISPs must comport with this requirement. Since the
    privacy rules never went into effect, consumer privacy protections
    remain as they were over the past two years.
        Going forward, I intend to work closely with the Federal Trade
    Commission to ensure that consumers continue to be protected under a
    uniform privacy regime for the entire online ecosystem.

        Question 5. In 2015, researchers at Rutgers University studied the
    impacts of journalism in three New Jersey communities. They found that
    lower-income communities suffer from a lack of local news sources, and
    generally receive their news from a smaller range of sources than
    wealthier communities.
        I am deeply concerned about the lack of diversity in media
    ownership. The FCC is supposed to collect data on media ownership every
    other year, but the 2015 data has not been released.
        Now that the FCC's 2017 deadline for data collection is
    approaching, what is your plan to ensure that this data is
    expeditiously collected, analyzed, and released to the public?
        Answer. The Commission collects broadcast ownership data on a
    biennial basis and immediately makes the collected data available to
    the public via the Commission's website. In addition, the Media Bureau
    releases a biennial report that analyzes the submitted data in various
    ways.
        We anticipate that recent modifications to the Commission's
    broadcast ownership report forms will improve the quality of the data
    submitted to the Commission and enable us to analyze submitted data
    more quickly and accurately. The Commission is in the process of
    implementing changes to the Form 323 and Form 323-E to ensure that they
    reflect the changes adopted by the Commission in 2016, as well as any
    modifications that may be adopted by the Commission at the April 20,
    2017 open agenda meeting. These revised forms should simplify the
    filing process for licensees, increase the response rate, improve the
    quality of submitted ownership data, and facilitate the Commission's
    analysis of that data.

        Question 6. In order to unlock the full benefits of Gigabit Wi-Fi,
    American consumers need access to more unlicensed spectrum in the 5 GHz
    band. As pointed out in a new study for the Wi-Fi Alliance, we need
    more contiguous unlicensed spectrum to support the 160 MHz wide
    channels used by Gigabit Wi-Fi. What is the Commission's plan for
    moving forward in the near term to authorize shared unlicensed use of
    the 5.9 GHz band to bring American consumers faster, better Wi-Fi?
        Answer. As you know, we are performing testing to determine whether
    unlicensed operations might share the 5.9 GHz band with transportation
    services. This band is particularly attractive because it is adjacent
    to spectrum that is already used by unlicensed operators. I am
    confident that we will conclude this testing process in the near term
    and move forward using engineer-based solutions to maximize the
    opportunities for efficient spectrum use, including by expanding
    unlicensed access to spectrum.

        Question 7. As you know, in the previous Congress, I joined with
    Senator Marco Rubio to introduce bipartisan legislation that would have
    explored whether it's possible to safely share unlicensed spectrum with
    vehicle safety technology in the 5.9 GHz band. I'm pleased that your
    agency, with DOT and the Commerce Department have been testing
    prototype technology to determine if it is possible to safely share
    this precious band, and see whether it can be used without interfering
    with V2V--or vehicle-to-vehicle communications. How will the Commission
    move forward with this project? What are next steps?
        Answer. Right now, this band is designated for vehicle-to-vehicle
    and vehicle to infrastructure use. Wi-Fi stakeholders have proposed
    alternatives to share this band while protecting most of the
    applications that are being considered, and I am confident that we can
    find a solution.
        This band is attractive for Wi-Fi because it's contiguous with the
    lower adjacent band already used for Wi-Fi. Also, if you look higher or
    lower in the spectrum chart, I think you'd be hard pressed to find a
    band that has fewer hurdles to getting it into consumers' hands. Both
    Qualcomm (with its re-channelization approach) and Cisco (with its
    detect and avoid approach) have identified paths forward.
        The Commission is working collaboratively with other government
    agencies, such as the U.S. Department of Transportation and the U.S.
    Department of Commerce's National Telecommunications and Information
    Administration, to ensure appropriate testing in the 5.9 GHz band to
    mitigate the risk of harmful interference with Intelligent
    Transportation Systems (a component of which is the transportation-
    related technology called Dedicated Short-Range Communications, or
    DSRC).
        The cooperating agencies developed a three-phased testing plan that
    would involve reviewing equipment in the FCC's Columbia Lab, testing
    sample/prototypes off-campus utilizing DOT facilities and procedures,
    and tests in real-world scenarios. We received nine devices for testing
    from five different companies and performed most of the bench tests as
    planned.
        Although we had hoped to conclude and submit the Phase 1 test
    results by January 15, 2017, the results of those tests showed a clear
    need for supplemental testing. We need to better understand the
    potential interactions between U-NII and DSRC devices. To date, we've
    generated thousands of data points that our engineers are analyzing.
    Our staff is also working with DOT and NTIA looking towards the next
    steps of field testing.
        We need to finish these additional tests before moving on to Phase
    2. Our engineers have been in touch with engineers at DOT to begin
    planning Phase II which will involve some basic field testing and then
    Phase III will involve real-world testing.
        The collection of relevant empirical data will assist the FCC, DOT,
    and NTIA in their ongoing collaboration to analyze and quantify the
    interference potential introduced to DSRC receivers from unlicensed
    transmitters operating simultaneously in the 5.850-5.925 GHz band.

        Question 8. I understand that on July 28, 2016, a group of managed
    care providers petitioned the FCC seeking declaratory ruling and/or
    clarification of the TCPA to reconcile the regulation of a health plan
    member's telephone number under the TCPA with the regulation of the
    same use under the Health Insurance Portability and Accountability Act
    (``HIPAA'').
        The Petitioners argue that a clarification is necessary to
    harmonize the TCPA, HIPAA, and prior Commission rulings to protect
    member health care communications. The calls covered by these
    clarifications fall within categories recognized by the Department of
    Health and Human Services as covered by HIPAA to enhance the
    individual's access to quality health care. HIPAA, as you know,
    regulates the privacy practices of covered entities and expressly
    encourages and permits such calls to be made. Congress passed HIPAA in
    1996 and the HITECH Act in 2009, well after the TCPA, which was enacted
    in 1991. HIPAA and the HITECH Act, therefore, represent the more recent
    intent of Congress in regulating these specific types of
    communications.
        What is the Commission's view on protecting non-telemarketing calls
    allowed under HIPAA in light of their unique value to and acceptance by
    consumers?
        What is the Commission's view on acting to protect these calls
    expeditiously so that beneficiaries' access to health care is not
    jeopardized, rather than waiting for a larger ``omnibus'' TCPA ruling
    that could take much longer?
        Answer. The treatment of non-telemarketing healthcare calls
    subjected to HIPAA has been raised in a Joint Petition filed by
    WellCare Health Plan (WellCare), among others. The petition is under
    consideration by the Commission and we have sought public comment on
    the matter. The comment cycles have been completed and Commission staff
    is carefully reviewing the record in the proceeding. And FCC staff have
    met with WellCare and the other petitioners several times to discuss
    their request. I can assure you that we will take into consideration
    the issues and concerns presented by all stakeholders as the Commission
    makes every effort to conclude its review as quickly and equitably as
    possible.
                                     ______

         Response to Written Questions Submitted by Hon. Tom Udall to
                                 Hon. Ajit Pai
        Question 1. The FCC website and Universal Licensing System (ULS)
    database indicate that the FCC has issued more than 50 licenses for
    antennas located on Trump Organization properties across the country,
    from the Trump National Golf Club in New Jersey to the Trump
    International Hotel in Washington, D.C. These licenses seem to cover
    uses such as local radio systems for business purposes (``Industrial/
    Business Pool'') to microwave TV broadcast translators (``TV Intercity
    Relay''). Please submit for the hearing record a complete list of all
    current and pending FCC licensing, regulatory, and other matters
    dealing with Trump Organization properties and President Trump-
    connected businesses.
        Answer. After a rigorous search, Commission staff have identified
    29 licenses classified as Industrial/Business Radio Pool, which is used
    to support business operations, that appear responsive to your request.
    They are as follows: WQIN529, WQQY855, WQMZ782, WQYP438, WPPH436,
    WQTJ467, WQKM691, WQRA547, WQNT571, WQTH485, WQNC924, WQIG662, WQHT553,
    WQHP632, WQJA413, WQOU575, WQTG225, WQCR619, WQIS558, WQVW586, WQJP502,
    WQVK323, WQLA781, WQLI397, WQBF905, WPIX211, WPRL940, WQVW586, and
    WQSI465. Staff was unable to identify any pending applications that
    appeared responsive to your request.
        Staff also found 42 active licenses held by individuals that either
    have the last name ``Trump'' or a last name including ``Trump.''
    However, none of these individuals appears to be President Donald J.
    Trump. Finally, we note that the above question references ``TV
    Intercity Relay'' service but our search for the name ``Trump'' did not
    result in any active licenses that are used for this service.

        Question 2. Will you inform this committee in writing of any new
    FCC licensing, regulatory, and other matter dealing with Trump
    Organization properties and President Trump-connected businesses that
    arises?
        Answer. Commission staff stands ready to repeat this search upon
    request, and I am happy to inform the Committee in writing of any such
    results.

        Question 3. Will you inform this committee in writing if President
    Trump or any member of the Trump Administration discusses any
    licensing, regulatory, or other matter before the FCC that concerns a
    Trump Organization property and President Trump-connected business?
        Answer. Yes.

        Question 4. Will you commit to ensuring that the FCC will continue
    to be a truly independent agency when it comes to licensing,
    regulatory, and other matters before the FCC that concern Trump
    Organization properties and President Trump-connected businesses?
        Answer. Yes.

        Question 5. The FCC regulates cable and wireless companies that
    have a poor reputation when it comes to customer service. So I was
    pleased when the FCC implemented a new consumer complaints database
    system following a letter that Senator Nelson and I sent in 2014 to
    then Chairman Wheeler. The FCC's Consumer Complaint Data Center website
    is much more functional than the old complaints web page. How is the
    FCC using the data from this new tool to identify emerging consumer
    issues, analyze trends and inform FCC policymaking?
        Answer. The Consumer Complaint Data Center (CCDC) expands the data
    the Commission produces from a handful of charts and graphs to a
    comprehensive database of individual complaints filed at the Commission
    since 2015. The CCDC allows users to easily track, search, sort and
    download information. Consumers can build their own visualizations,
    charts and graphs. The data is also available via application
    programming interface, which allows developers to build applications,
    conduct analyses and perform research. The data can also be embedded on
    other websites. The CCDC includes visualizations of various
    communications issues profiled in the consumer complaints, as well as
    geographic search features by city, state and zip code. The Commission
    has used its enhanced data to inform both policy and consumer
    education. For example, the Commission recently issued several consumer
    robocalls advisories based in part on our data center's improved
    abilities. And third party developers of robocall blocking apps use the
    enhanced data to arm consumers with better tools to stop unwanted
    robocalls.

        Question 6. Your testimony makes clear that you want to reduce
    ``regulatory burden'' on corporations. Please describe what specific
    actions you have taken as a Commissioner to help protect consumers and
    what actions you plan to take to protect consumers now that you are
    Chairman?
        Answer. As FCC Commissioner, I have been an ardent supporter for
    the American consumer. For example, to ensure the safety and life of
    all Americans, I have voted to adopt rules to help first responders
    better locate wireless 911 callers. I have also voted to ensure that
    Americans with disabilities are not ignored by supporting actions to
    improve the closed-captioning of television so that hard of hearing
    consumers are afforded the same quality of life opportunities as non-
    hard of hearing consumers.
        Since becoming Chairman, the Commission has ``hit the ground
    running'' and have acted on several pro-consumer initiatives. By
    establishing the Broadband Deployment Advisory Committee (BDAC), I have
    taken a crucial step to ensure that all Americans will have the
    opportunity to enjoy reliable, high-speed internet, by reducing
    regulatory barriers to infrastructure investment and streamlining
    processes. In late March, I also took steps to protect the American
    consumers from fraudulent, illegal, or spoofed robocalls. During this
    same time, I also issued improvements to the video relay services to
    better ensure that deaf and hard-of-hearing individuals experience
    service that is functionally equivalent to voice services available to
    hearing individuals. As Chairman, I remain committed to ensuring that
    the rules and policies of the FCC protect the interests of all
    Americans. And I look forward to taking further actions to close the
    digital divide, to protect consumers from unwanted and illegal
    robocalls, and ensure that disabled individuals have a full opportunity
    to participate in the 21st century economy.

        Question 7. You stated in a speech on First amendment issues last
    year that ``our cultural consensus on the importance of being able to
    speak one's mind is eroding. And nowhere is that consensus more at risk
    than on college campuses.'' You further stated that ``[e]lected
    officials should intervene to defend free speech when it is under
    attack at public universities'' (Commissioner Pai's Remarks at Media
    Institute's 2016 Awards Banquet available at https://www.fcc.gov/
    document/commissioner-pais-remarks-media-institutes-2016-awards-
    banquet). President Trump seemed to threaten to withdraw Federal
    funding from the University of California at Berkeley following its
    decision to cancel an event that featured a provocative speaker, Milo
    Yiannopoulos, who wrote for the far-right Breitbart News. Do you
    support withholding Federal funds from universities like UC Berkeley
    for a matter like this?
        Answer. Federal funding for universities is not a matter within the
    FCC's jurisdiction. However, with over 20 million students currently
    attending school in an American post-secondary educational institution,
    it is a problem that liberty seems to find no refuge on the modern
    American campus. I believe that the cause of free speech has no
    partisan affiliation. Consider these words by Janet Napolitano,
    President of the University of California system and former Obama and
    Clinton Administration official: ``[W]e have moved from freedom of
    speech on campuses to freedom from speech. If it hurts, if it's
    controversial, if it articulates an extreme point of view, then speech
    has become the new bete noire of the academy.'' And I hope all
    administrators would heed the words of the University of Chicago's
    Committee on Free Expression, which states that ``[I]t is not the
    proper role of the University to attempt to shield individuals from
    ideas and opinions they find unwelcome, disagreeable, or even deeply
    offensive. . . . [C]oncerns about civility and mutual respect can never
    be used as a justification for closing off discussion of ideas, however
    offensive or disagreeable those ideas may be to some members of our
    community.''

        Question 8. My understanding is that the FCC issues radio and
    antenna licenses to universities. Will you exercise your authority as
    chairman of the FCC in an impartial manner when it comes to licensing,
    regulatory and other matters related to colleges and universities?
        Answer. Yes.

        Question 9. Section 254 of the Communications Act charges the
    Commission with ensuring that ``Consumers in all regions of the
    Nation'' have access to telecommunications and information services
    ``that are reasonably comparable'' to those in urban areas. The latest
    FCC data show that 96 percent of American in urban areas have access to
    fixed broadband. This compares to just 59 percent of those on tribal
    lands. Given this gap, has the FCC failed to live up to its duties
    under Section 254 of the Communications Act?
        Answer. Yes. I believe closing the digital divide should be the
    FCC's top priority, and nowhere does that hold more true than with
    respect to rural, remote, and Tribal areas. Unfortunately, the state of
    digital access on Tribal lands is far inferior to those on non-Tribal
    lands. This is not consistent with Section 254, and I'm committed to
    improving the situation now that I have the privilege of serving as
    Chairman.

        Question 10. Will you assure me that the FCC will prioritize
    tackling the digital divide in Indian country?
        Answer. Yes--closing the digital divide for all Americans,
    including those living in Indian country, is my top priority.

        Question 11. In 2010, then FCC Chairman Julius Genachowski stood up
    the Office of Native Affairs and Policy (ONAP). This tribal liaison
    office is vital for ensuring robust tribal consultation and better
    input from tribes on important FCC actions that impact them. So I am
    very disappointed that the FCC did not provide ONAP even the modest
    $300,000 in funding that Congress directed for tribal consultation in
    Fiscal Years 2015 and 2016. Will you assure me that FCC will not repeat
    this mistake for the current fiscal year?
        Answer. As head of the agency, I take my responsibility for Tribal
    consultation seriously, and I will ensure that the agency allocates the
    resources it needs to fulfill that engagement responsibility.

        Question 12. Does the Federal hiring freeze impact the FCC's
    ability to fill any open positions within ONAP?
        Answer. The Commission is blessed with an excellent staff that has
    hit the ground running. I am not aware of any impacts of the hiring
    freeze thus far on the ability of the agency, including ONAP, to carry
    out its responsibilities.

        Question 13. The National Congress of the American Indian and
    others believe ONAP could be more effective if it were located within
    the Chairman's office rather than within an FCC bureau. Do you agree?
        Answer. The staff of the Office of Native Affairs and Policy are
    hardworking professionals who have effectively engaged with Native
    Nations, Tribal representatives, and others to provide the outreach and
    education needed to improve broadcast and broadband opportunities on
    Tribal lands. I look forward to continuing to work with the office, and
    always welcome recommendations for how the agency can be more effective
    in its efforts. However, I generally do not support incorporating other
    offices into the Chairman's office.

        Question 14. The Mobility Fund II order and further notice issued
    by the FCC on March 7th announced up to $34 million per year for a
    Tribal Mobility Fund Phase II. Please provide the calculations
    undertaken by the FCC to reach a conclusion that $34 million per year
    will provide Tribal lands with access to services that are reasonably
    comparable in quality and price to those available in our Nation's
    urban areas, as contemplated by Section 254 of the Communications Act.
        Answer. The budget for the Tribal Mobility Fund will be determined
    by applying the ratio of square miles in eligible Tribal Lands
    (adjusting for a terrain factor) to square miles of all eligible areas
    (adjusting for a terrain factor) to the total $4.53 billion budget for
    Mobility Fund Phase II. The preliminary estimate of $340 million for
    the Tribal Mobility Fund is based on analysis of current Form 477 data,
    which concluded that ratio is approximately 7 percent. Eligible areas
    for both Tribal and non-Tribal lands will be finalized after a
    comprehensive challenge process, at which point the ratio will be
    recalculated and applied to the total Mobility Fund Phase II budget.
    Notably, the Tribal Mobility Fund Phase II budget serves as a floor,
    not a ceiling, on the potential support in Tribal lands.

        Question 15. At a rate of $34 million in annual universal service
    investment, how long will it take to achieve reasonable comparability
    between tribal lands and urban areas for mobile broadband?
        Answer. The Tribal Mobility Fund Phase II envisions a ten-year term
    of support with a final buildout benchmark at the six-year mark, at
    which point a winning bidder must demonstrate reasonably comparable
    advanced mobile services in the support area.

        Question 16. What amount of annual universal support would be
    necessary to achieve reasonable comparability between tribal lands and
    urban areas for mobile broadband within five years?
        Answer. Shortening the buildout benchmark by one year would likely
    increase the amount of support demanded by competitors in the Mobility
    Fund Phase II and Tribal Mobility Fund Phase II, and likely reduce the
    total coverage of Indian country by participants in the auction.
    Because these auctions will rely on market forces to determine the
    specific funding required to serve any area, the precise impact of such
    a change is at this point in time unknowable.

        Question 17. In a September 2016 interview on the Sean Hannity
    Show, you spoke about concerns about the long-planned expiration of
    NTIA's Internet Assigned Numbers Authority (IANA) functions. You
    reportedly stated that, ``[I]f you cherish free expression, and free
    speech rights generally, you should be worried, I think, when there's--
    this oversight role's going to be ceded to potentially, foreign
    governments who might not share our values'' (see Hanchett, Ian. ``FCC
    Commissioner on Internet Oversight Switch: `If You Cherish Free
    Expression,' `You Should Be Worried,' This Is `Irreversible'.''
    available at http://www.breitbart.com/video/2016/09/28/fcc-
    commissioner-on-internet-oversight-switch-if-you-cherish-free-
    expression-you-should-be-worried-this-is-irreversible/). This
    expiration occurred on October 1, 2016. Do you still have these
    concerns about the IANA transition?
        Answer. The previous model of Internet governance was a tremendous
    success. Under American stewardship, the Internet became an
    unprecedented platform for free expression, innovation, and
    democratization. In my view, those favoring a change had a burden of
    proof to show why such a momentous change would benefit Internet users.
    In any event, now that the transition has occurred, we must continue to
    be vigilant to ensure that the Internet is free from unwarranted
    government intrusion.

        Question 18. At a May 12, 2015 hearing of the Financial Services
    and General Government Subcommittee of the Committee on Appropriations,
    you testified that you ``do not believe that funds for moving the FCC's
    headquarters . . . should be included within the FCC's general budget
    authority.'' You further stated that ``Congress should provide [FCC]
    with specific budget authority for this purpose.'' What specific budget
    authority will you seek from Congress for moving the FCC's
    headquarters?
        Answer. We received adequate funds in Fiscal Year 2016 to initiate
    the FCC's headquarters move and/or facilities restacking. We expect to
    receive the remaining funds in the final Fiscal Year 2017
    appropriations bill. We have continued to work with GSA to ensure an
    orderly transition; however, there is an outstanding appeal from the
    initial U.S. Court of Federal Claims decision granting authority for
    moving our headquarters. Accordingly, we will continue to work with the
    Appropriations Committee to ensure that we have the appropriate level
    to handle this process and any related matters in the next year.

        Question 19. At a March 27, 2014 hearing of the Financial Services
    and General Government Subcommittee of the Committee on Appropriations,
    we discussed your idea of having an FCC ``dashboard'' to improve
    transparency and accountability. Do you plan to implement such a
    dashboard?
        Answer. Yes, I am still interested in implementing such a
    dashboard.

        Question 20. I am interested in learning your thoughts about how to
    craft spectrum policy that is ``future proof.'' The United States
    Frequency Allocation Chart (available at https://www.ntia.doc.gov/
    files/ntia/publications/january_2016_spec
    trum_wall_chart.pdf) indicates that essentially all available spectrum
    has already been allocated. So the challenge today seems to be finding
    efficiencies and repurposing spectrum when new uses become important.
    How do we ensure that allocations made today do not unintentionally
    prevent us from meeting spectrum needs in the future?
        Answer. The spectrum allocation table is likely here to stay for
    the foreseeable future, but we have had incredible success enabling the
    various radio services the ability to innovate and deploy new
    technologies as they become available. Two examples stand out. The
    flexibility of our technical rules for commercial wireless spectrum
    have allowed the transition from the first through fourth and soon the
    fifth generation technologies without the need for continual FCC
    approvals. Similarly, Wi-Fi and Bluetooth were developed and deployed
    in successive generations due to the flexibility of our unlicensed
    rules.
        I am committed to building on this foundation by identifying and
    eliminating any unnecessary rules that may stand in the way of
    innovation. One key to this process is encouraging the rapid deployment
    of innovative technologies and opening up previously underutilized
    spectrum bands for use. This can be accomplished through a variety of
    accelerated agency actions as well as nimble market-based approaches,
    such as a streamlined secondary market.

        Question 21. Astronomers from around the world use the Very Large
    Array (VLA) radio telescope located outside Socorro, New Mexico to make
    observations of stars, quasars, pulsars, and galaxies that are not
    possible with optical telescopes. Current law allocates certain radio
    frequencies for such scientific use and protects against harmful
    interference. This is critical for radio astronomers to be able to do
    their research. Do you agree that Federal policy should continue to
    ensure that radio astronomers have access to spectrum needed for their
    research?
        Answer. Yes.

        Question 22. Unlicensed use of the TV ``white spaces'' spectrum has
    the potential to enable low cost fixed broadband connectivity in rural
    areas. My understanding is that proponents of using TV white spaces
    believe it is essential that there be adequate access to useable 6 MHz
    channels in every U.S. market. Will you commit to making this issue a
    priority as you finalize the remaining policy issues in the TV white
    space related proceedings and petitions for reconsideration?
        Answer. I am a strong believer in unlicensed use of spectrum, which
    has led to innovations such as Wi-Fi. I agree that unlicensed access is
    especially critical in rural markets, and I agree that the Commission
    must do what it can to ensure that the repacking of the TV bands does
    not foreclose wireless Internet service providers and others from
    increasing broadband deployment in rural America through the use of
    white-space devices.

        Question 23. What steps will you take as FCC Chairman to create new
    opportunities for Tribal Nations to access spectrum?
        Answer. As stated above, one of my top priorities as Chairman is to
    close the digital divide, including on Tribal lands. I've proposed that
    we increase buildout obligations (in conjunction with extending license
    terms) in order to ensure that licensees build out on Tribal lands and
    other areas that don't have coverage. The Tribal Mobility Fund also
    will play an important part of ensuring Tribal areas have coverage. I
    have also announced the formation of the Broadband Deployment Advisory
    Committee to explore ways to accelerate deployment of high-speed
    broadband nationwide and close the digital divide.

        Question 24. Windstream declined almost $28 million in Connect
    America funding for rural broadband in New Mexico. Windstream and other
    companies will be able to bid in a ``reverse auction'' process to bring
    broadband service to these customers. When will this reverse auction
    take place?
        Answer. The Commission is working through the pre-auction process,
    with the expectation of conducting the CAF II auction in early 2018.
    Following the Commission's bipartisan vote on February 23, the auction
    will offer almost $2 billion to bidders to connect the unserved over
    the next decade. It incorporates rules to induce new entrants to
    participate--competitive entrants like wireless Internet service
    providers, small-town cable operators, and electric utilities. The CAF
    II auction order adopted auction weights designed to give every
    bidder--no matter what technology they use--a meaningful opportunity to
    compete for Federal funds, while ensuring the best value for the
    American taxpayer. These weights account for the value of higher
    speeds, higher usage allowances, and low latency, but also balance
    these preferences against our objective of maximizing the effectiveness
    of finite USF funds to serve consumers in unserved areas.

        Question 25. I am very concerned that, even after a ``reverse
    auction'' process for Connect America funding for rural broadband in
    New Mexico, the most costly areas to deploy service will still be left
    behind. It seems to me that if FaceBook and Google can bring Internet
    service to developing countries, it should be within our means to make
    sure all New Mexicans have access to broadband. Could you share your
    thoughts on how the FCC could use pilot projects or encourage new
    technologies to bring broadband service to remote rural areas?
        Answer. While the Commission previously decided to include areas
    that are deemed to be extremely high-cost in the CAF II auction, it
    recognized that not all areas will receive bids. Therefore, the
    Commission has concluded that it will award support in a subsequent
    Remote Areas Fund competitive bidding process with respect to areas
    that, after the CAF II auction, remain unserved. The Commission's goal
    is to commence the Remote Areas Fund auction within a year of the close
    of the CAF II auction. Both the CAF II and the Remote Areas auctions
    are technology neutral, meaning providers using new technologies that
    can offer voice and the minimum level of broadband service are eligible
    to participate.

        Question 26. The Federal agency overseeing broadband providers and
    Internet policy should be a flagship agency when it comes to using the
    best IT tools available. Yet when record numbers of Americans tried to
    submit comments on net neutrality, the FCC's electronic filing system
    crashed. How do you plan to prioritize the FCC's IT reform efforts
    moving forward?
        Answer. I am working with the Office of Managing Director to review
    all IT projects for the next fiscal year to determine the success/fail
    ratio of prior year projects. However, I believe that the Commission
    has made considerable progress since the system crash described by you,
    including appropriate upgrades and maintenance improvements. I look
    forward to working with our Office of Managing Director and our CIO to
    pinpoint the cause of past deficiencies and develop leadership tools to
    avoid system breakdowns. Also, the FCC will work with OMB and Congress
    to ensure that we have adequate funds to prioritize essential projects
    going forward.

        Question 27. What are the most important FCC IT systems that need
    to be modernized?
        Answer. The FCC systems supporting Auctions (ISAS/ABS), Equipment
    Authorization (EAS/ELS), and Licensing (ULS/CDBS).

        Question 28. Describe the role of the FCC Chief Information Officer
    (CIO) in the development and oversight of the IT budget. How is the CIO
    involved in the decision to make an IT investment, determine its scope,
    oversee its contract, and oversee continued operation and maintenance?
        Answer. As you know, the Commission is a very small agency, with
    less than 1,600 FTEs and a relatively limited budget for IT projects.
    The FCC has a small permanent IT staff of 45 with approximately 275
    contractors--although we have been increasing the staff-to-contractor
    ratio during the past few years. Accordingly, we do not have the
    structure or apparatus to support a large, independent office of Chief
    Information Officer (CIO) as some larger agencies have established. The
    CIO at the FCC oversees the IT budget process and reports directly to
    the Managing Director, who in turn reports directly to the Chairman's
    Chief of Staff.
        The agency's Chief Financial Officer is on the same level as the
    CIO within the Office of Managing Director (OMD), and provides
    budgetary expertise to ensure that proposed projects are properly
    evaluated.
        The CIO supervises staff within the office tasked with developing
    project concepts, and requests funds from the Managing Director in
    consultation with the CFO and procurement staff. The final decision on
    priority projects and funding is made by the Chairman's Chief of Staff
    with recommendations by the Managing Director. Once a project is
    approved and the procurement processed, the CIO has operational
    supervision over implementation and is responsible for programmatic
    results.

        Question 29. Describe the existing authorities, organizational
    structure, and reporting relationship of the Chief Information Officer.
        Answer. The CIO reports directly to the Managing Director, who
    reports directly to the Chairman's Chief of Staff. The CIO leads and
    oversees all IT programs, functions and proposals within the
    Commission. The CIO is responsible for the supervision of 45 FTEs and
    275 contractors. The IT team's resources are organized under two deputy
    CIOs. The CIO coordinates programmatic financial analysis with the CFO,
    who is on the same level within the Office of Managing Director.

        Question 30. According to the Office of Personnel Management, 46
    percent of the more than 80,000 Federal IT workers are 50 years of age
    or older, and more than 10 percent are 60 or older. Just four percent
    of the Federal IT workforce is under 30 years of age. Does the FCC have
    such demographic imbalances? How is it addressing them?
        Answer. The FCC does not consider age to be an impediment to a
    successful workforce. We strive to maintain a balance of more
    experienced employees to serve as supervisors and mentors for less
    experienced employees, and we hire for positions based on specific,
    demonstrated agency needs.

        Question 31. How much of the FCC's budget goes to Demonstration,
    Modernization, and Enhancement of IT systems as opposed to supporting
    existing and ongoing programs and infrastructure? How has this changed
    in the last five years?
        Answer. The FCC has steadily reduced Operations and Maintenance
    (O&M) spending and has increased investment in Demonstration,
    Modernization, and Enhancement (DM&E). The five-year historical
    reporting is as follows:

       FY14--86 percent O&M, 14 percent DM&E

       FY15--73 percent O&M, 27 percent DM&E

       FY16--48 percent O&M, 52 percent DM&E

       FY17--49 percent O&M, 51 percent DM&E

       FY18--49 percent O&M, 51 percent DM&E (projected)

        Question 32. What are the 10 highest priority IT investment
    projects that are under development at the FCC? Of these, which ones
    are being developed using an ``agile'' or incremental approach, such as
    delivering working functionality in smaller increments and completing
    initial deployment to end-users in short, six-month time frames?
        Answer. Although we are currently reviewing all management
    practices within the FCC, I have been advised that all FCC IT efforts
    have been delivered under an ``agile'' process, emphasizing short
    sprints of three weeks or less. The IT staff, under the direction of
    OMD, uses an ``adapt first, purchase second, develop last'' methodology
    to reduce cost and complexity in modernization efforts. According to
    the CIO, solutions are ideally adapted or reused from existing
    capabilities; purchased off-the-shelf; and otherwise developed, when
    not readily available. The 10 highest priority efforts are as follows:

       1.  Mobility Fund 2

       2.  Connect America Phase II

       3.  Reimbursement Fund Administration System

       4.  Integrated Spectrum Auction System AM Revitalization

       5.  Incentive Auction Form 399 Modernization

       6.  SaaS Platform Migration/ULS 2.0

       7.  Universal Licensing System Forms 603 & 608

       8.  Universal Licensing System 700 MHz

       9.  Cybersecurity Enhancements and Modernization/Identify
            Management/Single Sign-On

      10.  Windows 10/Office 2016 Migration

        Question 33. What are the 10 oldest IT systems or infrastructures
    in your department and how old are they? Would it be cost-effective to
    replace them with newer IT investments?
        Answer. The Office of Managing Director has provided the following
    list of legacy systems and needed actions:

       1.  Equipment Authorization System, launched 1998, hardware most
            recently upgraded at least 6 years ago, needs to be moved from
            commercial service provider currently hosting it to a public
            cloud.

       2.  Experimental Licensing System, launched 1998, hardware most
            recently upgraded at least 6 years ago, needs to be moved from
            commercial service provider currently hosting it to a public
            cloud.

       3.  International Bureau Filing System, launched 1998, hardware most
            recently upgraded at least 6 years ago, needs to be moved from
            commercial service provider currently hosting it to a public
            cloud.

       4.  Universal Licensing System, launched 2004, hardware most
            recently upgraded at least 6 years ago, needs to be moved from
            commercial service provider currently hosting it to a public
            cloud.

       5.  Legacy Server Infrastructure, launched 2005, most recently
            upgraded at least 6 years ago will be eliminated by cloud
            migration

       6.  Integrated Spectrum Auction System, launched 2005, hardware most
            recently upgraded at least 6 years ago, needs to be moved from
            commercial service provider currently hosting it to a public
            cloud.

       7.  Consolidated Database System, launched 2007, hardware most
            recently upgraded at least 6 years ago, needs to be moved from
            commercial service provider currently hosting it to a public
            cloud.

       8.  Canadian Co-Channel Serial Coordination System, launched 2008,
            hardware most recently upgraded at least 6 years ago, needs to
            be moved from commercial service provider currently hosting it
            to a public cloud.

       9.  Broadband Map, launched 2009, hardware most recently upgraded at
            least 6 years ago, needs to be moved from commercial service
            provider currently hosting it to a public cloud.

      10.  Enforcement Bureau Activity Tracking System, launched 2011,
            hardware most recently upgraded at least 6 years ago, needs to
            be moved from commercial service provider currently hosting it
            to a public cloud.

        The dates above reflect the year the application was originally
    designed and launched. The software components are continuously
    updated.

        Question 34. How does FCC's IT governance process allow for FCC to
    terminate or ``off ramp'' IT investments that are critically over
    budget, over schedule, or failing to meet performance goals? Similarly,
    how does FCC's IT governance process allow for your department to
    replace or ``on-ramp'' new solutions after terminating a failing IT
    investment?
        Answer. The Managing Director has advised me that the CIO's senior
    management team uses a robust governance process that provides a
    consistent and results-focused investment review. On a weekly basis,
    the managers review projects for roadblocks and risks. On a monthly
    basis, they review all active projects and provide an internal
    Information Technology Review (ITR).
        The staff examines projects showing risk in cost, schedule, or
    performance to determine viability and return on investment. When they
    determine that projects are in a ``failure status,'' they realign and
    resources immediately to prioritize ongoing and future corrective
    efforts, including replacement of the failed project. Performance
    within a 10 percent variance of cost and schedule are considered
    healthy. Replacement solutions are evaluated on an individual basis,
    with customer engagement and risk factors considered before resources
    are assigned.
        As a small, non-CFO Act agency with limited budgetary resources for
    IT projects, the entire spending on IT during the past year was
    approximately $78 million. The FCC has a small permanent IT staff of 45
    with approximately 275 contractors--although we have been increasing
    the staff to contractor ratio during the past few years. The use of
    permanent, highly qualified FTEs to evaluate projects has helped with
    the quality control process and enhanced our ability to move forward
    with the most cost-effective IT projects.

        Question 35. What IT projects has FCC decommissioned in the last
    year? What are FCC's plans to decommission IT projects this year?
        Answer.

       Consumer Complaint Management System (Legacy)--
            decommissioned

       Broadcast Public Inspection File--decommissioned

       Broadband Map Infrastructure (Legacy)--decommissioned

       VIZMO Broadband Reporting--decommissioned

       FCC.gov Internet Service (Legacy)--decommissioned

       FCC E-mail Infrastructure (Legacy)--decommissioned

       Network Outage Reporting System (Legacy)--decommissioned

       SharePoint On-Premises Infrastructure--scheduled for
            decommissioning

       BMC Remedy Auctions Hotline--scheduled for decommissioning

       Legacy Cybersecurity Tools (5+ systems)--scheduled for
            decommissioning

       ISAS Legacy Components--scheduled for decommissioning

       Electronic Comments Filing System (Legacy)--scheduled to be
            decommissioned

        Question 36. Please describe FCC's efforts to identify and reduce
    wasteful, low-value or duplicative information technology (IT)
    investments as part of these portfolio reviews.
        Answer. The Commission has established an internal Technology
    Review Board (TRB) for this purpose. On a monthly basis, the TRB
    reviews the Technology Reference Model, which includes all of the
    approved technology applications within the FCC, and carries out
    thorough quarterly reviews to ensure the technology portfolio is
    optimized for the Commission. All new proposals are evaluated against
    existing services and ideally matched with current services when
    possible. By using established Software-as-a-Service (SaaS) and
    Platform-as-a-Service (PaaS) capabilities, which provide the
    foundations of the modernized applications and systems being rolled out
    to the Commission and the public, we have reduced complexity and
    achieved cost reductions.

        Question 37. In 2011, the Office of Management and Budget (OMB)
    issued a ``Cloud First'' policy that required agency Chief Information
    Officers to implement a cloud-based service whenever there was a
    secure, reliable, and cost-effective option. How many of the FCC's IT
    investments are cloud-based services (Infrastructure as a Service,
    Platform as a Service, Software as a Service, etc.)? What percentage of
    the department's overall IT investments are cloud-based services? Does
    FCC have a Cloud strategy to encourage the use of Cloud computing
    solutions? If not, by when do you plan to have such a strategy in
    place?
        Answer. The FCC IT Strategic Plan details the Commission's
    commitment to cloud sourcing as follows:

            ``We will leverage cloud service offerings to the fullest
            extent possible, ensuring the service provider meets all
            government requirements for security, privacy, and reliability.
            The FCC will leverage commercial solutions that drive improved
            performance, security, and availability. By leveraging managed
            security solutions and partnerships with the commercial market,
            the FCC is able to reduce costs and improve security by
            capitalizing on the economies of scale through a managed
            security provider.''

        As a result, almost all of our IT investments are cloud-based
    services. All of the remaining infrastructure was transferred to a
    commercial service provider in 2015, with a small remaining contingent
    of FCC-owned infrastructure at the Commission's COOP site. The FCC uses
    a combination of IaaS, PaaS, and SaaS across the breadth of the IT
    services it provides. All new applications are configured using SaaS or
    PaaS solutions, whichever best fits the business requirements.
    Applications developed using IaaS foundational solutions are
    situational and are only applicable if SaaS or PaaS solutions do not
    meet the business requirements. No new applications are considered for
    development and deployment to on-premises infrastructure or systems.

        Question 38. Congress passed the MEGABYTE Act (PL 114-210) to
    encourage agencies to achieve significant savings in managing IT assets
    including software licenses. What policies or processes are in place at
    FCC to improve software management?
        Answer. The FCC takes advantage of blanket purchasing agreements,
    volume licensing models, consumption based cloud services, and variable
    cost models for cloud computing as part of the process to reduce
    licensing and hardware/software costs. The Senior Procurement
    Executive, in coordination with the Chief Information Officer, has
    published a policy memorandum on how the FCC will gain efficiencies
    under the MEGABYTE Act. Additionally, the specific guidance addresses
    responsibility after the purchase by specifying ``This shall include a
    complete inventory of software licenses and maintenance of a mechanism
    to track, maintain, and analyze software use.''

        Question 39. Provide short summaries of three recent IT program
    successes--projects that were delivered on time, within budget, and
    delivered the promised functionality and benefits to the end user. How
    does FCC define ``success'' in IT program management? What ``best
    practices'' have emerged and been adopted from these recent IT program
    successes? What have proven to be the most significant barriers
    encountered to more common or frequent IT program successes?
        Answer. A review of the Commission's most recent spending shows an
    emphasis on IT. I plan to continue this trend while also ensuring that
    it is accomplished using business practices that are results-oriented.
    Success is only achieved when the customer can speak directly to the
    value of the IT team's work. To deliver these results, OMD's IT staff
    has partnered with Bureaus and Offices to define project success prior
    to initiating a project, and continually reviews progress and
    performance to ensure goals are met. Below are three recent IT program
    successes cited by OMD:

       FCC Consumer Helpdesk. FCC IT delivered a cloud-based
            consumer helpdesk solution, but instead of the $3.2 million
            quote to internally build a new system over two years, FCC
            spent $450,000 for a system that was ready to go in six months.
            Additionally, the new solution has annual operations costs of
            $100,000 a year instead of an estimated $640,000 to maintain an
            on-premise system with FCC contract staff and government-owned
            equipment and software.

       Office365 and Virtual Desktop Infrastructure. The FCC IT
            team completed a 100 percent migration of the Commission staff
            to a Microsoft Office365 cloud environment in August of 2015.
            The Commission now has a virtual desktop infrastructure in
            place that supports remote computing for nearly the entire
            staff. In addition to improving accessibility and remote
            capabilities, these improvements delivered a robust platform
            for information sharing and collaboration, and eliminated
            nearly a dozen legacy servers.

       FCC.gov Modernization. FCC IT conducted a complete overhaul
            of FCC.gov. Work included upgrading the web content management
            system, upgrading the design to be mobile-friendly and modern-
            looking, as well as completely redoing the information
            architecture to improve site navigation. All of these efforts
            were informed by extensive user research with internal and
            external stakeholders. The FCC.gov site search was also
            replaced with a federated application that indexes FCC.gov and
            EDOCS content.
                                     ______

        Response to Written Questions Submitted by Hon. Gary Peters to
                                 Hon. Ajit Pai
        Introduction. Connected and automated vehicles have the potential
    to greatly improve safety, reduce energy consumption, and enhance
    mobility. Dedicated Short Range Communications (DSRC) technology allows
    our vehicle fleet to communicate seamlessly, improving our
    transportation system, and offers vehicles a wireless sensor capable of
    providing 360 degree awareness to support vehicle safety and automated
    driving. Vehicle-to-vehicle technology, which utilizes DSRC, requires
    secure and reliable communications without harmful interference or
    delay. Safety messages sent to warn drivers must be sent without
    interruption--even fractions of a second matter with automotive safety.
    DSRC, operating in the 5.9 band, has been proven to deliver that
    fraction of a second communication, and can save lives now.
        Over 35,000 Americans died on our roads last year. As the Federal
    Communications Commission continues to study whether the band can be
    shared, we must not lose sight of the critical safety benefits DSRC can
    bring.
        We need clear Federal leadership to ensure that we have a uniform
    vehicle safety policy that promotes innovation and leads to the
    responsible deployment of the connected and automated vehicles. The
    Commission has been updating and refreshing the record since summer
    2016 in the 5GHz band specifically looking at the viability of
    potential sharing solutions between high-power WiFi and DSRC
    operations. It is also my understanding that you have looked at several
    prototypes to see if sharing in the band can work.

        Question 1. Do you support vehicle-to-vehicle and vehicle-to-
    infrastructure communications? If yes, why? If no, why?
        Answer. I support safety enhancements for vehicles. Indeed, I had a
    chance to learn about some of the technological development in this
    area during a recent visit to General Motors in Detroit. Going forward,
    I believe it is important to have a data-driven, objective process for
    evaluating spectrum use and interference issues.

        Question 2. Do you agree with the National Highway and Traffic
    Safety's assessment of vehicle-to-vehicle and vehicle-to-infrastructure
    communications that these technologies have the potential to mitigate
    or eliminate up over 80 percent of non-impaired crashes?
        Answer. Our agency's expertise relates to the engineering
    components of the proposal and whether commercial spectrum can be
    shared without harmful interference. I cannot say, based on my own
    independent judgment, whether NHTSA's assessment is correct.

        Question 3. With the conclusion of the U.S. Department of
    Transportation's Smart City Challenge, and municipalities around the
    country already developing and deploying vehicle to infrastructure
    communications, do you agree that it is especially important to ensure
    that the 5.9 GHz band and DSRC services remain clear from harmful
    interference?
        Answer. Our objective with respect to our examination of potential
    spectrum sharing between unlicensed devices and DSRC is to prevent
    harmful interference. We intend to work with the relevant stakeholders
    to develop engineering solutions that support this goal.

        Question 4. Please provide an overall update on the status of the
    5.9 GHz interference testing. Please provide a description of the
    prototypes received to date and the results of any initial testing,
    including results on co-channel and cross-channel interference.
        Answer. We have received nine devices to date--two each, including
    an access point and client device, from KEA Technologies, Cisco,
    Qualcomm, and Broadcom, and a roadside reflector from CAV Technologies.
    These devices are all designed to work with the current 5.9 GHz band
    plan to evaluate the proposed detect and vacate sharing scheme. We also
    are anticipating another device from Broadcom in early April that is
    designed to operate on a modified 5.9 GHz band plan to evaluate the
    proposed rechannelization sharing scheme.
        The ongoing Phase I testing consists of three components: RF
    characterization, benchtop interference testing, and investigation of
    interference mitigation. Most of the tests have been completed. The
    data generated during the tests is currently being analyzed.

        Question 5. Please explain how the FCC is working with the
    Department of Transportation and the National Telecommunications and
    Information Administration (NTIA) as they examine sharing around this
    life-saving technology.
        Answer. The Department of Transportation and the NTIA have been our
    partners throughout the testing process. Each organization provided
    input to develop the test plan. The Department of Transportation also
    helped secure some DSRC devices for testing.

        Question 6. What is the FCC's target date for completion of Phase 1
    of testing?
        Answer. We just recently received the device that will allow us to
    fully evaluate the re-channelization sharing scheme. We are currently
    evaluating it under the same process as the previous devices we
    examined. I have been advised by our Office of Engineering and
    Technology that based on their experience with those devices, they
    anticipate that it will take four to six weeks to complete testing and
    analyze the data. I understand that because this device functions
    differently from the previous devices tested, there may be additional
    tests that we need to conduct to fully understand how it may interact
    with DSRC devices.

        Question 7. What is the FCC's target date for completion of Phase 2
    and Phase 3 of testing?
        Answer. Phases 2 and 3 will require additional input and resources
    from the Department of Transportation and NTIA. More specifically,
    because those phases include installing and testing devices on actual
    vehicles in motion, they will need to be conducted on test ranges and
    under real world conditions. We will have a better idea of the timing
    once we complete the Phase 1 testing, and will work with our partners
    at DOT and NTIA to finalize the additional test plans.

        Question 8. Will you include industry stakeholders in Phase 2 and
    Phase 3 testing to ensure a complete understanding before making any
    decisions, given their more than a decade of development, availability
    of equipment and understanding of vehicle-to-vehicle applications?
        Answer. The Commission's staff met with the industry stakeholders
    to discuss the test plan prior to its finalization and subsequently to
    discuss some of our early test results. I understand that plans are
    underway to meet the parties again to review Phase 1 results and plan
    for Phases 2 and 3. Additionally, any rule changes the Commission may
    consider are subject to public comment, so industry stakeholders will
    have ample opportunity to weigh-in prior to any final decision.

        Question 9. Will you commit to making public all of the data
    collected by the FCC during the bench and field testing phases?
        Answer. The Commission will make all non-proprietary or non-
    confidential data available to the public.

        Question 10. What is the Commission's target date for making a
    final determination on spectrum sharing in the 5.9 GHz band with
    unlicensed devices?
        Answer. The Commission's staff is working to make a decision as
    expeditiously as possible. Because the testing is ongoing, it is
    difficult to set a date for final determination at this time.

        Question 11. If proven that the ``re-channelization'' proposal will
    cause harmful interference to DSRC services within the 5.9 GHz band,
    will you still move forward with allowing for unlicensed Wi-Fi to share
    that band of spectrum? If yes, why?
        Answer. Under our rules, unlicensed devices may not cause harmful
    interference. Any rules the Commission were to adopt would be designed
    to ensure that DSRC devices do not receive harmful interference from
    unlicensed devices.

        Question 12. If both the ``detect and vacate'' and ``re-
    channelization'' proposals are proven to cause harmful interference to
    DSRC services will you continue the status quo and allow DSRC to
    operate in the 5.9 GHz band on their own without sharing the spectrum?
    If not, why?
        Answer. I cannot commit to any course of action without having a
    full, concrete set of facts. And the Commission has not proposed to
    change the DSRC rules.

        Question 13. It is critical that the FCC evaluate the sharing
    proposals based on facts, not opinions. Subjective judgements about
    what will or will not work are no substitute for solid engineering
    data, which has undergone rigorous and open review. Will you commit
    that the FCC's final determination on spectrum sharing in the 5.9 GHz
    band will be based on sound engineering data, which has undergone
    rigorous and open review?
        Answer. Yes. We will comply with the Administrative Procedure Act
    and our own rules as we move forward with this matter. Accordingly,
    industry stakeholders will have an opportunity to review the
    engineering data and weigh-in prior to any final decision by the
    Commission.

        Introduction. On March 1, 2017, the Senate Commerce Committee held
    a hearing entitled, ``Connecting America: Improving Access to
    Infrastructure for Communities Across the Country'' to examine the
    challenge of connecting Americans, particularly in rural areas, to
    transportation and information networks. The Committee heard from
    several witnesses about how DSRC technology has improved traffic
    congestion and reduced pedestrian accidents in their communities. The
    witnesses also stressed the need to preserve the use of the 5.9 GHz
    spectrum for DSRC safety critical applications. Many states, including
    my own, have a real interest in the benefits that connected cars and
    autonomous vehicles can bring to our communities. NHTSA has released a
    draft regulation that would require DSRC on 50 percent of all new
    vehicles by 2021 model year and GM is already selling cars that are
    equipped with DSRC services. There are DSRC deployments in several
    states underway, including a ``SPAT-challenge'' to deploy DSRC-equipped
    intersections that would broadcast signal phase and timing in corridors
    in all 50 states by 2020.

        Question 14. Are we moving in a direction where we will see this
    technology and spectrum used for the lifesaving applications as it was
    intended--or are we running the risk of these investments being wasted
    due to spectrum interference?
        Answer. The Commission has a responsibility to accommodate the
    introduction and growth of new radio communications services and
    technologies while also considering whether there may be any adverse
    impact to incumbent radio services. Our staff has always seriously
    considered any such evaluations and focus on potential risks of harmful
    interference to safety-based services or applications, and I intend for
    that to continue under my Chairmanship.
                                     ______

      Response to Written Questions Submitted by Hon. Tammy Duckworth to
                                 Hon. Ajit Pai
        Introduction. As Commissioner Clyburn noted in her testimony, I
    authored the Video Visitation in Prisons Act last Congress to increase
    oversight of telecommunications in prisons and permit prisoners who
    demonstrate good behavior to stay in touch with their family through
    video conferencing. Because the vast majority of prisoners will
    eventually be released, it is not a matter of if we need to prepare
    these individuals to rejoin society, but rather, a matter of how well
    we do it. And the FCC has a critical role to play in this important
    national challenge. Across the country, jails and prisons have begun
    implementing a new way for families and friends to stay in touch with
    their incarcerated loved ones: video conferencing.
        In Illinois, remote video conferences have provided the only way
    for some families to stay in touch, one example is the Menard
    Correctional Center, which is more than 300 miles from Chicago, where
    many of its prisoners come from and still have family who live there.
        Studies show that prisoners who remain in close contact with family
    members achieve better post-release outcomes and lower rates of
    recidivism. Yet, too often, prisoners and their families struggle to
    maintain regular contact, whether through in-person visits, calls or
    ``video visitation.''

        Question 1. Would you agree that the prison video visitation
    service industry remains a largely unregulated area of commerce, which
    has led to low-quality service paired with exorbitant, cost-prohibitive
    fees that prisoners and their families cannot afford?
        Answer. Video visitation is an emerging service in the ICS market.
    At this point, we are still learning about the potential, positive role
    this service can play. The Commission has adopted annual reporting
    requirements and will be collecting data from ICS providers regarding
    their services, including video visitation. The providers' reports will
    offer us further insight into video visitation services and pricing.
    Generally speaking, I've long believed, as I publicly stated in 2013,
    that with respect to this market ``we cannot necessarily count on
    market competition to keep prices for inmate calling services just and
    reasonable.''

        Question 2. As technology changes and more prisons start using
    video conferencing, what are some of your recommendations for the
    future of this technology?
        Answer. Video conferencing offers some very valuable opportunities
    for inmates' families to stay connected. We are hopeful that this
    emerging service will continue to evolve in a manner consistent with
    the needs of inmates and their families.

        Question 3. Why is it important that video visitation supplement--
    not supplant--in-person visitation?
        Answer. Family support plays an important role in helping released
    prisoners reenter society and in reducing recidivism. In-person
    visitation has historically been an important component to ensuring
    that inmates stay connected with their families and maintain a sense of
    well-being prior to their re-entry into society.

        Introduction. Chairman Pai, one of your first actions was to direct
    the Wireline Competition Bureau to overturn an order designating nine
    wireless companies to provide Lifeline Broadband service through the
    USF Lifeline program, which provides support to low-income households
    in order to gain phone and broadband access.
        One of the wireless companies that lost its Lifeline designation
    was Applied Research (AR) Designs, a certified Minority Business
    Enterprise and African-American owned company in Chicago. AR Designs
    applied for a first-time designation with the FCC as a Lifeline
    Broadband Provider with streamlined consideration and was approved on
    January 18, 2017.
        But last month, you revoked their designation based on concerns
    about ``waste, fraud and abuse'' and now will be limited in providing
    affordable Lifeline-supported broadband service to Chicago's low-
    income, underserved communities.
        This program would allow access for schoolchildren to complete
    homework assignments and parents who are unemployed, to seek employment
    and economic development. The designation would also benefit Veterans
    and seniors, who are on fixed incomes and cannot otherwise, afford
    higher priced plans. Non-eligible Lifeline customers would be offered
    the same plan at a fixed price of $9.25.

        Question 4. Revoking these Lifeline designations, with immediate
    action to address the loss of access to affordable broadband service,
    harms my constituents residing in low-income and underserved Chicago
    communities.
        Please provide a detailed explanation as to why you revoked
    designations for AR Designs and the other firms.
        Answer. As the Wireline Competition Bureau explained in its Order
    on Reconsideration, giving the agency additional time to review these
    designations ``would promote program integrity by providing the Bureau
    with additional time to consider measures that might be necessary to
    prevent further waste, fraud, and abuse in the Lifeline program''
    because ``[p]otential waste, fraud, and abuse through the use of the
    independent economic household worksheet, identity verification dispute
    resolution processes, address verification, and discrepancies between
    reimbursement requests and subscriber listings in the National Lifeline
    Accountability Database (NLAD) raise concerns that the [designations]
    fail[ed] to resolve.'' In addition, the Bureau agreed with the National
    Tribal Telecommunications Association the ``certain providers seeking
    designation as an LBP failed to fulfill their obligations under section
    54.202(c) of the Commission's rules'' and that the ``designation [of]
    FreedomPop and KonaTel prior to the 30-day public comment period
    deadline represents a clear and obvious error.'' Finally, the law here
    is clear: Congress gave state governments, not the FCC, the primary
    responsibility for approving which companies can participate in the
    Lifeline program under Section 214 of the Communications Act. This is
    how the program worked over two decades, over three Administrations,
    and over eight Chairmanships. By letting states take the lead on
    certification as envisioned by Congress, we will strengthen the
    Lifeline program and put the implementation of last year's order on a
    solid legal footing. This will benefit all Americans, including those
    participating in the program.

        Question 5. Please provide a justification as to why you did not
    have the full Commission vote on these revocations.
        Answer. In the Lifeline Modernization Order, the Commission
    delegated authority to the Wireline Competition Bureau to act on
    Lifeline Broadband Provider (LBP) designations. Just as the prior
    Administration used this delegated authority to direct the Bureau to
    designate these providers, the current Bureau relied upon that
    authority in returning these LBP applications to the queue.

        Question 6. Please attach to your response all materials that the
    FCC relied on to make the determination to revoke these designations.
        Answer.

       Total Call Mobile, Inc., Order, 31 FCC Rcd 13204 (EB 2016).

       Testimony of FCC Commissioner Ajit Pai Before the
            Subcommittee on Communications and Technology of the United
            States House of Representatives Committee on Energy and
            Commerce, Oversight of the Federal Communications Commission,
            at 4-5 (July 12, 2016), available at https://www.fcc.gov/
            document/commissioner-pai-statement-house-oversight-hearing
            (Pai Testimony).

       Petition for Reconsideration of National Tribal
            Telecommunications Association of the Lifeline Broadband
            Designation Order, WC Docket No. 09-197, et al., (filed Jan. 3,
            2017)

       Response and Opposition of Boomerang Wireless, LLC DBA
            enTouch Wireless to the Petition for Reconsideration of
            National Tribal Telecommunications Association, WC Docket No.
            09-197, et al., (filed Jan. 19, 2017).

       Response and Opposition of KonaTel, Inc. to the Petition for
            Reconsideration of National Tribal Telecommunications
            Association, WC Docket No. 09-197, et al., (filed Jan. 19,
            2017).

       Response and Opposition of STS Media, Inc. DBA FreedomPop to
            the Petition for Reconsideration of National Tribal
            Telecommunications Association, WC Docket No. 09-197, et al.,
            (filed Jan. 19, 2017).

       47 CFR Sec. 54.202(c).

        Question 7. Will you commit to an on-time implementation of the
    Lifeline Modernization Order's third-party eligibility verifier, which
    will provide an additional layer of safeguards against any waste, fraud
    and abuse? In addition, please provide a detailed implementation status
    update.
        Answer. USAC, overseen by Commission staff, continues to work on a
    National Verifier that will create a more effective, efficient, and
    fiscally responsible program by having USAC take responsibility for
    determining subscriber eligibility. I am confident that the launch of
    the National Verifier will help root out waste, fraud, and abuse in the
    program. USAC, the FCC staff, states, and numerous other interested
    parties have made progress on designing and implementing the National
    Verifier in order to meet the timing commitments made by the Commission
    last year.
                                  Attachments
                          Federal Communications Commission--DA 16-1399
                                   Before the
                       Federal Communications Commission
                              Washington, DC 20554

    In the Matter of                              )
                                                  )
    Total Call Mobile,                            )   File No.: EB-IHD-14-
     Inc.                                              00017650
                                                  )   Acct. No.:
                                                       201632080004
                                                  )   FRN: 0017274911
                                                  )
                                                  )

                                     ORDER

    Adopted: December 22, 2016           Released: December 22, 2016

    By the Chief, Enforcement Bureau:

        1. The Enforcement Bureau (Bureau) of the Federal Communications
    Commission (Commission) and Total Call Mobile, Inc. (TCM), have entered
    into a Consent Decree as part of a global settlement totaling
    $30,000,000 to fully resolve the Notice of Apparent Liability for
    Forfeiture and Order the Commission issued against TCM,\1\ the
    Commission's Investigation into whether TCM violated the Commission's
    Lifeline program rules (Rules),\2\ and the FCC's forfeiture penalty
    claims, as well as claims related to the Covered Conduct as defined and
    specified in the settlement between TCM and the U.S. Attorney's Office
    for the Southern District of New York (SDNY Settlement).
    ---------------------------------------------------------------------------
        \1\ Total Call Mobile, Inc., Notice of Apparent Liability for
    Forfeiture and Order, 31 FCC Rcd. 4191 (2016) (TCM NAL).
        \2\ Investigation means the investigation commenced by the Bureau
    in File No. EB-IHD-14-00017650, and the TCM NAL.
    ---------------------------------------------------------------------------
        2. As part of the Universal Service Fund (USF), the Lifeline
    program assists qualified low-income consumers in obtaining the
    opportunities and security that phone service brings, including
    connecting to jobs, family members, and emergency services. The
    Lifeline program is administered by the Universal Service
    Administrative Company (USAC), which is responsible for, among other
    things, support calculation and disbursement payments for the Lifeline
    program. An ETC, like TCM, may receive $9.25 per month for each
    qualifying low-income consumer receiving Lifeline service (Basic
    Support), and up to an additional $25 per month if the qualifying low-
    income consumer resides on Tribal Lands.\3\ Before receiving such
    support reimbursements, however, an ETC must meet stringent
    requirements under the Commission's Lifeline Rules.\4\
    ---------------------------------------------------------------------------
        \3\ See 47 CFR Sec. 54.403(a); 47 CFR Sec. 54.400(a), (e). See also
    47 CFR Sec. 54.409.
        \4\ See 47 CFR Sec. Sec. 54.400-54.422.
    ---------------------------------------------------------------------------
        3. In response to concerns about TCM's participation in the
    Lifeline program, the Enforcement Bureau's USF Strike Force conducted
    an extensive investigation into the company's compliance with the
    Commission's Rules, including whether TCM enrolled duplicate and
    ineligible consumers in the Lifeline program through the misuse of
    eligibility documents such as temporary Supplemental Nutrition
    Assistance Program (SNAP) cards, including enrolling ``phantom''
    consumers who were created by using the identity information of an
    individual without the individual's consent, and the accuracy of the
    consumer data TCM provided in support of its USF reimbursement
    requests. In addition, the Commission's Wireline Competition Bureau
    (WCB) directed USAC to hold Lifeline disbursements to TCM beginning
    with the May 2016 data month.\5\
    ---------------------------------------------------------------------------
        \5\ Total Call Mobile, Inc., Order Directing Temporary Hold of
    Payments (DA 16-708) (June 22, 2016).
    ---------------------------------------------------------------------------
        4. On April 7, 2016, the Commission issued the TCM NAL against TCM
    alleging violations of the Commission's Rules that govern the Lifeline
    program.\6\ To settle this matter, as well as a civil False Claims Act
    matter with the U.S. Attorney's Office for the Southern District of New
    York, TCM agrees to pay $30,000,000 in connection with this global
    settlement, admits that it violated the Commission's Rules governing
    the Lifeline program, relinquishes its Federal and state Eligible
    Telecommunications Carrier (ETC) designations, and agrees to no longer
    participate or seek to participate in the Lifeline program. Pursuant to
    this settlement agreement, TCM will withdraw and not pursue any
    objections presently before USAC and the Commission related to claims
    involving the $7,460,884 in Lifeline reimbursements held by USAC,
    including the Letter from Steve Augustino, Counsel for TCM, Kelley Drye
    & Warren, LLP, to Michelle Garber, USAC (May 9, 2016) and Total Call
    Mobile, Inc., NAL/Acct. No. 201632080004, Response to Paragraph 102 of
    the Notice of Apparent Liability for Forfeiture, FCC 16-44 (2016). The
    $7,460,884 shall be deemed to be part of the global settlement amount
    paid by TCM.
    ---------------------------------------------------------------------------
        \6\ TCM NAL.
    ---------------------------------------------------------------------------
        5. After reviewing the terms of the Consent Decree and evaluating
    the facts before us, we find that the public interest would be served
    by adopting the Consent Decree and terminating the referenced
    investigation of TCM.\7\
    ---------------------------------------------------------------------------
        \7\ Investigation means the investigation commenced by the Bureau's
    USF Strike Force in File No. EB-IHD-14-00017212 and the TCM NAL.
    ---------------------------------------------------------------------------
        6. We do not set for hearing the question of TCM's basic
    qualifications to hold or obtain any Commission license or
    authorization, as TCM with this Consent Decree is agreeing to withdraw
    from, and not participate again in, the Lifeline program.
        7. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), and
    503(b) of the Act \8\ and the authority delegated by Sections 0.111 and
    0.311 of the Rules,\9\ the attached Consent Decree IS ADOPTED and its
    terms incorporated by reference.
    ---------------------------------------------------------------------------
        \8\ 47 U.S.C. Sec. Sec. 154(i), 503(b).
    ---------------------------------------------------------------------------
        8. IT IS FURTHER ORDERED that the above-captioned matter IS
    TERMINATED and the NAL and Order are CANCELLED.
        9. IT IS FURTHER ORDERED that a copy of this Order and Consent
    Decree shall be sent by first class mail and certified mail, return
    receipt requested, to Yasunori Matsuda, Chief Executive Officer, Total
    Call Mobile, LLC, 1411 W. 190th Street, Gardena, CA 90248, to Patrick
    O'Donnell and Brita Stransberg, Harris, Wiltshire & Grannis, LLP,
    counsel for Total Call Mobile, Inc., 1919 M Street, NW, 8th Floor,
    Washington, DC. 20036, and to Steven A. Augustino, Kelley Drye & Warren
    LLP, Washington Harbour, Suite 400, 3050 K Street, NW, Washington, D.C.
    20007.

                              FEDERAL COMMUNICATIONS COMMISSION
                                                Travis LeBlanc,
                                             Chief, Enforcement Bureau.
                                     ______

                          Federal Communications Commission--DA 16-1399
                                   Before the
                       Federal Communications Commission
                              Washington, DC 20554

    In the Matter of                              )
                                                  )
    Total Call Mobile,                            )   File No.: EB-IHD-14-
     Inc.                                              00017650
                                                  )   Acct. No.:
                                                       201632080004
                                                  )   FRN: 0017274911
                                                  )
                                                  )

                                 CONSENT DECREE
        1. The Enforcement Bureau of the Federal Communications Commission
    and Total Call Mobile, LLC (TCM),\1\ by their authorized
    representatives, hereby enter into this Consent Decree for the purposes
    of terminating the Bureau's Notice of Apparent Liability for Forfeiture
    and Order and the Bureau's investigation, as defined below, into
    whether TCM violated Sections 54.405, 54.407, 54.409, and 54.410 of the
    Commission's rules governing the provision of Lifeline service to low-
    income consumers,\2\ from at least November 2012 through April 2016.
    ---------------------------------------------------------------------------
        \1\ On March 31, 2015, Total Call Mobile was re-organized as a
    limited liability corporation under the laws of Delaware. The FCC was
    notified of this pro forma transfer of control by letter dated April
    30, 2015. See Notification, pursuant to Section 63.24(f) of the
    Commission's Rules, of a pro forma transfer of control of Total Call
    Mobile, LLC which holds international Section 214 authority et al.,
    File No. ITC-ASG-20150430-00114 (Apr. 30, 2015).
        \2\ See 47 CFR Sec. Sec. 54.405, 54.407, 54.409, 54.410.
    ---------------------------------------------------------------------------
        2. On December 19, 2016, TCM, along with affiliated entities,
    entered into a Stipulation and Order of Settlement and Dismissal (the
    ``SDNY Settlement'') with the United States Attorney's Office for the
    Southern District of New York to resolve claims that TCM engaged in
    certain fraudulent conduct in connection with the Lifeline program and
    a qui tam action that was filed in the United States District Court for
    the Southern District of New York pursuant to the False Claims Act, as
    amended, 31 U.S.C. Sec. 3729 et seq. (FCA).\3\
    ---------------------------------------------------------------------------
        \3\ The scope of the releases in the SDNY Settlement are specified
    in that agreement.
    ---------------------------------------------------------------------------
    I. DEFINITIONS
        3. For the purposes of this Consent Decree, the following
    definitions shall apply:

         (a)  ``Act'' means the Communications Act of 1934, as amended.\4\
    ---------------------------------------------------------------------------
        \4\ 47 U.S.C. Sec. 151, et seq.

         (b)  ``Adopting Order'' means an order of the Bureau adopting the
                terms of this Consent Decree without change, addition,
    ---------------------------------------------------------------------------
                deletion, or modification.

         (c)  ``Basic Support'' means Lifeline support of $9.25 per month
                for eligible Lifeline consumers.

         (d)  ``Bureau'' means the Enforcement Bureau of the Federal
                Communications Commission.

         (e)  ``Commission'' and ``FCC'' mean the Federal Communications
                Commission and all of its bureaus and offices.

         (f)  ``Communications Laws'' means collectively, the Act, the
                Rules, and the published and promulgated orders and
                decisions of the Commission to which TCM is subject by
                virtue of its business activities, including but not
                limited to the Lifeline Rules.

         (g)  ``SDNY'' means the United States Attorney's Office for the
                Southern District of New York.

         (h)  ``Effective Date'' means the date by which both the Bureau
                and TCM have signed the Consent Decree and the U.S.
                District Court for the Southern District of New York has
                approved the proposed Stipulation and Order of Dismissal,
                whichever is later.

         (i)  ``ETC'' means an eligible telecommunications carrier
                designated under, or operating pursuant to, Section 214(e)
                of the Communications Act, as amended, 47 U.S.C.
                Sec. 214(e), as eligible to offer and receive support for
                one or more services that are supported by the Federal
                universal support mechanisms.

         (j)  ``Investigation'' means the investigation commenced by the
                Bureau in File No. EB-IHD-14-00017650, and in Total Call
                Mobile, Inc., Notice of Apparent Liability for Forfeiture
                and Order, 31 FCC Rcd. 4191 (2016) (TCM NAL) regarding
                whether TCM violated the Lifeline Rules.

         (k)  ``Lifeline Rules'' means Title 47, Code of Federal
                Regulations, Sections 54.400-54.422, Section 254 of the
                Act, and Commission orders related to the provision of
                Lifeline service.

         (l)  ``Monies Held'' means the Lifeline support payments to Total
                Call Mobile temporarily held by USAC pursuant to the notice
                provided to the company on April 8, 2016, and order issued
                by the Wireline Competition Bureau dated June 22, 2016 (DA
                16-708).

        (m)  ``NLAD'' means the National Lifeline Accountability Database
                that ETCs are required to use, unless otherwise provided,
                pursuant to 47 CFR Sec. 54.404. NLAD is a third-party
                independent verification system used by the Universal
                Service Administrative Company that was designed to
                identify and deny the enrollment of any potential intra-
                company duplicate Lifeline consumers.

         (n)  ``Parties'' means TCM and the Bureau, each of which is a
                ``Party.''

         (o)  ``Person'' shall have the same meaning defined in Section
                153(39) of the Communications Act, as amended, 47 U.S.C.
                Sec. 153(39).

         (p)  ``Rules'' means the Commission's regulations found in Title
                47 of the Code of Federal Regulations.

         (q)  ``TCM'' or ``Company'' means Total Call Mobile, LLC, and its
                predecessors in interest and successors in interest,
                including Total Call Mobile, Inc.

         (r)  ``USAC'' means the Universal Service Administrative Company,
                which serves as the administrator for the Federal Universal
                Service Fund.\5\
    ---------------------------------------------------------------------------
        \5\ See 47 CFR Sec. 54.701.
    ---------------------------------------------------------------------------
    II. BACKGROUND
        3. Lifeline is part of the Federal Universal Service Fund (USF or
    the Fund) and helps qualified consumers have the opportunities and
    security that essential communications service brings, including being
    able to connect to jobs, family members, and emergency services.\6\
    Lifeline service is provided by ETCs designated pursuant to the Act.\7\
    An ETC may seek and receive reimbursement from the USF for revenues it
    forgoes in providing the discounted services to eligible consumers in
    accordance with the Rules. Section 54.403(a) of the Lifeline Rules
    specifies that an ETC may receive $9.25 per month in Basic Support for
    each qualifying low-income consumer receiving Lifeline service.\8\
    ---------------------------------------------------------------------------
        \6\ See Lifeline and Link Up Reform and Modernization et al.,
    Report and Order and Further Notice of Proposed Rulemaking, WC Dkt. No.
    11-42 et al., FCC Rcd 6656, 6662-66, paras. 11-17 (2012) (2012 Lifeline
    Reform Order); see also 47 CFR Sec. Sec. 54.400-54.422.
        \7\ See 47 U.S.C. Sec. 254(e) (providing that ``only an eligible
    telecommunications carrier designated under section 214(e) of this
    title shall be eligible to receive specific Federal universal service
    support''); see also 47 U.S.C. Sec. 214(e) (prescribing the method by
    which carriers are designated as ETCs).
        \8\ See 47 CFR Sec. 54.403(a).
    ---------------------------------------------------------------------------
        4. The Lifeline Rules establish explicit requirements that ETCs
    must meet to receive Lifeline support reimbursements.\9\ Section
    54.407(a) of the Lifeline Rules provides that ``[u]niversal service
    support for providing Lifeline shall be provided to an eligible
    telecommunications carrier based on the number of actual qualifying
    low-income consumers it services[.]'' \10\
    ---------------------------------------------------------------------------
        \9\ See 47 CFR Sec. Sec. 54.400-54.422.
        \10\ See 47 CFR Sec. 54.407(a).
    ---------------------------------------------------------------------------
        5. The Lifeline Rules prohibit an ETC from seeking reimbursement
    for providing Lifeline service to a consumer unless the ETC has
    confirmed the consumer's eligibility to receive Lifeline service.\11\
    Section 54.410 requires an ETC to receive a certification of
    eligibility from a subscriber demonstrating that the consumer meets the
    income-based or program-based eligibility criteria for receiving
    Lifeline service prior to seeking reimbursement from the USF. Section
    54.410(a) further requires ETCs to ``implement policies and procedures
    for ensuring that their Lifeline subscribers are eligible to receive
    Lifeline services.'' \12\
    ---------------------------------------------------------------------------
        \11\ See 47 CFR Sec. 54.410(b), (c).
        \12\ See 47 CFR Sec. 54.410(a).
    ---------------------------------------------------------------------------
        6. ETCs that provide qualifying low-income consumers with Lifeline
    discounts file a Form 497 with USAC to request reimbursement for
    providing service at the discounted rates. Section 54.407(d) provides
    that an ETC may receive reimbursement from the Fund if the ETC
    certifies as part of its reimbursement request that it is in compliance
    with the Lifeline Rules and, to the extent required under that subpart,
    has obtained valid certifications for each consumer for whom the ETC
    seeks reimbursement.\13\ An ETC may revise its Form 497 data within 12
    months after the data is submitted.\14\
    ---------------------------------------------------------------------------
        \13\ See 47 CFR Sec. 54.407(d).
        \14\ See 2012 Lifeline Reform Order, 27 FCC Rcd at 6788, para. 305.
    ---------------------------------------------------------------------------
        7. TCM is an ETC designated to provide wireless Lifeline service in
    at least 19 states and territories. TCM offered eligible low-income
    Lifeline consumers a plan that allowed it to seek reimbursements from
    the Fund. TCM solicited and enrolled consumers for its Lifeline-
    supported services by contracting with master agents, who were based
    throughout the United States. These TCM master agents in turn recruited
    individual TCM sales agents, who performed the individual Lifeline
    enrollments and were supervised by TCM master agents; since early 2014,
    enrollments performed by TCM sales agents were reviewed by TCM in real
    time.
        8. In response to a referral made by the Commission's Wireline
    Competition Bureau and USAC, the Bureau's USF Strike Force (Strike
    Force) initiated and conducted the Investigation of TCM's Lifeline
    consumer enrollment practices.
        9. TCM relied primarily on in-person sales events to enroll
    consumers in the Lifeline program. TCM solicited and enrolled consumers
    by contracting with several distributors based throughout the country,
    referred to as ``master agents,'' who in turn hired individual ``field
    agents'' to engage in face-to-face marketing at public events and
    spaces. The field agents collected the consumer's information and
    performed individual enrollments. TCM paid the master agents based in
    part on the number of subscribers successfully enrolled, and the master
    agents in turn paid their field agents primarily or exclusively on a
    commission basis.
        10. TCM received and reviewed the vast majority of its Lifeline
    applications electronically. Using tablet computers, field agents were
    required to enter a consumer's demographic information (e.g., name,
    address, date of birth, last four digits of Social Security number) and
    capture images of the consumer's proof of identification and proof of
    eligibility (e.g., Supplemental Nutrition Assistance Program (SNAP)
    card, Medicaid card). TCM had electronic access to the documentation,
    information, and data entered during the enrollment process, and was
    responsible for verifying the eligibility of Lifeline applicants.
        11. For much of the time from September 2012 to May 2016, TCM
    failed to adequately screen and train the field agents who acted on the
    company's behalf. Although TCM provided training to its master agents,
    from September 2012 until late 2014, TCM relied on the master agents to
    train field agents and did not ensure that such training was provided.
    TCM started to directly train field agents thereafter.
        12. TCM failed to implement effective policies and procedures to
    ensure the eligibility of the subscribers for whom TCM requested
    reimbursement for Lifeline discounts, as required by Lifeline Rules.
    Although TCM had certain policies and procedures that improved over
    time, TCM did not effectively monitor compliance with these policies
    and procedures and failed to prevent the enrollment of ineligible
    individuals. For much of the time from September 2012 to May 2016, TCM
    allocated insufficient staff and resources to verifying the eligibility
    of Lifeline subscribers. For example, pursuant to TCM's 2013 business
    plan, one staff member was expected to review the eligibility of 6,000
    prospective Lifeline customers each month.
        13. Hundreds of TCM field agents engaged in fraudulent practices to
    enroll consumers who were duplicate subscribers \15\ or who were
    otherwise not eligible for the Lifeline program. For example:
    ---------------------------------------------------------------------------
        \15\ A ``duplicate subscriber'' refers to an individual enrolled to
    receive Lifeline services from TCM even though the individual or
    someone in the individual's household also received Lifeline services
    from TCM, in violation of the one-benefit-per-household requirement.

      a.  Certain field agents repeatedly used the same benefit program
            eligibility proof to enroll multiple consumers. Agents
            frequently enrolled several different individuals by submitting
            an image of the same improperly obtained program eligibility
            card or, in some instances, a fake program eligibility card.
            Field agents relied on temporary SNAP cards to enroll consumers
            because these cards did not include the actual benefit
            recipient's name. Although TCM and Locus managers received
            numerous reports that field agents were relying on the same
            program eligibility card repeatedly, they failed to put in
            place adequate systems and procedures to prevent this practice
    ---------------------------------------------------------------------------
            for much of the time from September 2012 to May 2016.

      b.  Certain field agents slightly altered the way in which a
            subscriber's demographic information was input to avoid having
            TCM identify the application as a duplicate. TCM knew that
            field agents developed ways to manipulate the consumer's data
            to bypass the limited automated duplicate checks in place, and
            failed to put in place an adequate system for screening out
            duplicate subscribers. TCM enhanced its duplicate check system
            during the latter portion of the time from September 2012 to
            May 2016, but some duplicate subscribers continued to be
            enrolled.

      c.  Certain field agents tampered with identification or program
            eligibility cards, and intentionally transmitted blurry or
            partial images of the documentation, to try to conceal the fact
            that the information on the documentation did not match the
            subscriber's actual name or the other information on the
            Lifeline application. TCM enrolled individuals in the Lifeline
            program and sought reimbursement for discounts provided to them
            notwithstanding clear legibility issues with the proof
            submitted.

      d.  Certain field agents provided their own signature, printed their
            own name, or wrote a straight or curvy line where the
            prospective subscriber's signature was supposed to appear on
            Lifeline applications. TCM enrolled individuals in the Lifeline
            program and sought reimbursement for discounts provided to them
            even though the field agents had completed the required
            customer certification instead of the actual consumer.

      e.  Certain field agents submitted false consumer addresses and
            social security numbers to enroll duplicate or otherwise
            ineligible subscribers. TCM failed to take sufficient actions
            to identify this false information during its review, and
            enrolled these individuals in the Lifeline program and sought
            reimbursement for discounts provided to them.

        14. TCM failed to put in place effective mechanisms to oversee the
    conduct of field agents and detect and prevent field agent abuses.
    Further, during much of the time from September 2012 to May 2016, even
    when managers learned that field agents were using the same program
    eligibility card repeatedly or engaging in some other type of improper
    practice, TCM often allowed the field agent to continue to enroll
    subscribers. TCM rarely took corrective actions against field agents
    who engaged in improper conduct until the latter portion of the time
    from September 2012 to May 2016, when it enhanced its oversight of
    field agent practices and deactivated a number of field agents.
        15. During the time from September 2012 to May 2016, TCM submitted
    hundreds of monthly reimbursement requests on Form 497s to USAC that
    listed the purported total number of qualifying low-income Lifeline
    subscribers served and the total reimbursement claimed for the month.
    In each Form 497, TCM certified that the company was in compliance with
    all of the Lifeline rules and that it had obtained valid certification
    forms for each subscriber for whom TCM sought reimbursement. At the
    time that TCM submitted many of these Form 497s, TCM knew that its
    policies and procedures for reviewing Lifeline applications, verifying
    consumer eligibility, conducting duplicate checks, and detecting
    duplicate subscribers were deficient. Although TCM revised some of its
    Form 497s to correct errors or remove subscribers who were subsequently
    determined to be potentially ineligible, these revised forms still
    included consumers who did not meet the Lifeline eligibility criteria.
        16. TCM sought and received reimbursement for tens of thousands of
    consumers who did not meet the Lifeline eligibility requirements.
        17. On April 7, 2016, based upon these violations of the Lifeline
    Rules, the Commission released the TCM NAL charging TCM with apparently
    violating Sections 54.405, 54.407, 54.409, and 54.410 of the Lifeline
    Rules.\16\
    ---------------------------------------------------------------------------
        \16\ See Total Call Mobile, Inc., Notice of Apparent Liability for
    Forfeiture and Order, 31 FCC Rcd. 4191 paras. 6, 73, 83, 103 (2016).
    ---------------------------------------------------------------------------
        18. On April 8, 2016, USAC issued a letter to TCM notifying it of
    the impending hold of all Lifeline Program funding to the Company in
    light of the evidence outlined in the TCM NAL and requiring the Company
    to provide sufficient documentation demonstrating its compliance with
    the Lifeline Rules.\17\ On May 9, 2016, TCM submitted a response to
    USAC objecting to the impending hold of Lifeline funding.\18\ Also on
    May 9, 2016, as directed in Paragraph 102 of the TCM NAL, TCM submitted
    a report explaining why the Commission should not take certain actions,
    including suspension of all Lifeline reimbursements to TCM.\19\ On June
    1, 2016, the Wireline Competition Bureau issued a letter to TCM seeking
    additional documentation and information relating to TCM's Paragraph
    102 Response. TCM responded to that letter on June 13, 2016, June 22,
    2016, and June 27, 2016. TCM responded to a supplemental letter from
    the Wireline Competition Bureau, dated June 30, 2016, with responses on
    July 6, 2016, July 8, 2016, July 13, 2016 and July 22, 2016.
    ---------------------------------------------------------------------------
        \17\ See Letter from USAC to Mr. Hideki Kato, President, Total Call
    Mobile, Inc. (Apr. 8, 2015).
        \18\ Letter from Steve Augustino, Counsel for TCM, Kelley Drye &
    Warren, LLP, to Michelle Garber, USAC (May 9, 2016).
        \19\ Total Call Mobile, Inc., NAL/Acct. No. 201632080004, Response
    to Paragraph 102 of the Notice of Apparent Liability for Forfeiture,
    FCC 16-44 (May 9, 2016) (TCM Paragraph 102 Response).
    ---------------------------------------------------------------------------
        19. On June 22, 2016, the Wireline Competition Bureau issued a
    temporary suspension of TCM's USF reimbursements, pending its review of
    TCM's responses to the WCB's request(s) for information (WCB Temporary
    Hold Order).\20\ On July 22, 2016, TCM filed a Petition for
    Reconsideration of the WCB Temporary Hold Order, which remains pending.
    TCM responded to the TCM NAL on July 5, 2016.\21\
    ---------------------------------------------------------------------------
        \20\ Total Call Mobile, Inc., Order Directing Temporary Hold of
    Payments, DA 16-708 (Wireline Comp. Bur., June 22, 2016).
        \21\ See Total Call Mobile, LLC's Response to the Notice of
    Apparent Liability for Forfeiture (July 5, 2016) (TCM NAL Response).
    ---------------------------------------------------------------------------
        20. The agreed final amount of Lifeline funding held by USAC is
    $7,460,884. In the event that there are any additional Monies Held as a
    result of post-settlement filings or adjustments by TCM, TCM waives its
    right to the additional Monies Held.
        21. The parties negotiated the following terms and conditions of
    settlement and hereby enter into this Consent Decree as provided below.
    III. TERMS OF AGREEMENT
        22. Adopting Order. The provisions of this Consent Decree shall be
    incorporated by the Bureau in an Adopting Order.
        23. Jurisdiction. For purposes of this Consent Decree, TCM agrees
    that the Bureau has jurisdiction over it and the matters contained in
    this Consent Decree and has the authority to enter into and adopt this
    Consent Decree.
        24. Effective Date. The Parties agree that this Consent Decree
    shall become effective on the Effective Date as defined herein. As of
    the Effective Date, the Parties agree that the Adopting Order and this
    Consent Decree shall have the same force and effect as any other order
    adopted by the Commission. Any violation of the Adopting Order or of
    the terms of this Consent Decree shall constitute a separate violation
    of a Commission order, entitling the Commission to exercise any rights
    and remedies attendant to the enforcement of a Commission order. If the
    Bureau determines that TCM made any material misrepresentation or
    material omission relevant to the resolution of this Investigation, the
    Bureau retains the right to seek modification of this Consent Decree.
        25. Termination of Investigation. In express reliance on the
    covenants and representations in this Consent Decree and to avoid
    further expenditure of public resources, the Bureau agrees to terminate
    the Investigation and resolve the TCM NAL. In consideration for the
    termination of the Investigation, TCM agrees to the terms, conditions,
    and procedures contained herein. The Bureau further agrees that, in the
    absence of new material evidence, it will not use the facts developed
    in the Investigation through the Effective Date, or the existence of
    this Consent Decree, to institute, on its own motion, any new
    proceeding, formal or informal, or take any action on its own motion
    against TCM concerning the matters that were the subject of the
    Investigation. This Consent Decree is contingent upon court approval of
    the SDNY Settlement, but otherwise does not terminate any other
    investigations that have been or might be conducted by other law
    enforcement agencies or offices.
        26. Admission of Liability. TCM admits for the purpose of this
    Consent Decree and for the Commission's civil enforcement purposes, and
    in express reliance on the provisions of paragraph 25 herein, that its
    actions in paragraphs 9 through 16, and that were the subject of the
    TCM NAL violated Sections 54.405, 54.407, 54.409, and 54.410 of the
    Commission's Rules.\22\
    ---------------------------------------------------------------------------
        \22\ See 47 CFR Sec. Sec. 54.405, 54.407, 54.409, 54.410.
    ---------------------------------------------------------------------------
        27. Relinquishment of License. In consideration for the termination
    of the Investigation, and in express reliance on the provisions of
    paragraph 25 herein, TCM agrees to: (1) transfer its Lifeline customers
    and cease providing Lifeline service on or before December 31, 2016;
    (2) not participate in the Lifeline program after December 31, 2016;
    (3) no longer apply for or receive Lifeline universal service support
    on or after December 31, 2016; (4) relinquish its ETC designation from
    the Commission and all respective ETC designations TCM has received
    from all states and territories of the United States, and withdraw any
    applications TCM submitted for ETC designation, on or before December
    31, 2016; and (5) not reapply for ETC designations from the Commission
    or any state or territory of the United States after the Effective Date
    of this Agreement. TCM shall submit copies of all requests to
    relinquish its ETC designations and withdraw its applications for ETC
    designation to Loyaan Egal, Director, Strike Force, Enforcement Bureau,
    Federal Communications Commission, 445 12th Street, SW, Washington DC
    20554, with copies submitted electronically to Loyaan Egal at
    Loyaan.Egal@fcc.gov, to Rakesh Patel at Rakesh.Patel@fcc.gov, to David
    M. Sobotkin at David.Sobotkin@fcc.gov, and to Dangkhoa Nguyen at
    Dangkhoa.Nguyen@fcc.gov.
        28. Section 208 Complaints; Subsequent Investigations. Nothing in
    this Consent Decree shall prevent the Commission or its delegated
    authority from adjudicating complaints filed pursuant to Section 208 of
    the Act \23\ against TCM or its affiliates for alleged violations of
    the Act, or for any other type of alleged misconduct, regardless of
    when such misconduct took place. The Commission's adjudication of any
    such complaint will be based solely on the record developed in that
    proceeding. Except as expressly provided in this Consent Decree, this
    Consent Decree shall not prevent the Commission from investigating new
    evidence of noncompliance by TCM with the Communications Laws.
    ---------------------------------------------------------------------------
        \23\ 47 U.S.C. Sec. 208.
    ---------------------------------------------------------------------------
        29. Settlement Amount. TCM agrees to a Global Settlement Amount
    with the FCC and SDNY with a value of $30,000,000.00 (Global Settlement
    Amount) to fully resolve the TCM NAL, the Investigation, and the FCC's
    forfeiture penalty claims, as well as claims related to the Covered
    Conduct as defined and specified in the SDNY Settlement. The Global
    Settlement Amount addresses the loss to the Fund. A percentage of the
    Global Settlement Amount will be paid to the Relator in the qui tam
    action to resolve the Relator's claim to a portion of the Global
    Settlement Amount pursuant to 31 U.S.C. Sec. 3730(d)(1).

      a.  In furtherance of the foregoing, TCM will withdraw its Petition
            for Reconsideration and not pursue any objections presently
            before USAC and the Commission related to claims involving the
            $7,460,884 in Lifeline reimbursements held by USAC, including
            the Letter from Steve Augustino, Counsel for TCM, Kelley Drye &
            Warren, LLP, to Michelle Garber, USAC (May 9, 2016) and Total
            Call Mobile, Inc., NAL/Acct. No. 201632080004, Response to
            Paragraph 102 of the Notice of Apparent Liability for
            Forfeiture, FCC 16-44 (2016). The $7,460,884 shall be deemed to
            be part of the Global Settlement Amount paid by TCM and shall
            be deemed part of the amount repaid to the Fund.

        30. Waivers. As of the Effective Date, TCM waives any and all
    rights it may have to seek administrative or judicial reconsideration,
    review, appeal or stay, or to otherwise challenge or contest the
    validity of this Consent Decree and the Adopting Order. TCM shall
    retain the right to challenge Commission interpretation of the Consent
    Decree or any terms contained herein. If either Party (or the United
    States on behalf of the Commission) brings a judicial action to enforce
    the terms of the Consent Decree or the Adopting Order, neither TCM nor
    the Commission shall contest the validity of the Consent Decree or the
    Adopting Order, and TCM shall waive any statutory right to a trial de
    novo. TCM hereby agrees to waive any claims it may otherwise have under
    the Equal Access to Justice Act \24\ relating to the matters addressed
    in this Consent Decree.
    ---------------------------------------------------------------------------
        \24\ See 5 U.S.C. Sec. 504; 47 CFR Sec. Sec. 1.1501-1.1530.
    ---------------------------------------------------------------------------
        31. Severability. The Parties agree that if any of the provisions
    of the Consent Decree shall be held unenforceable by any court of
    competent jurisdiction, such unenforceability shall not render
    unenforceable the entire Consent Decree, but rather the entire Consent
    Decree shall be construed as if not containing the particular
    unenforceable provision or provisions, and the rights and obligations
    of the Parties shall be construed and enforced accordingly.
        32. Invalidity. In the event that this Consent Decree in its
    entirety is rendered invalid by any court of competent jurisdiction, it
    shall become null and void and may not be used in any manner in any
    legal proceeding.
        33. Subsequent Rule or Order. The Parties agree that if any
    provision of the Consent Decree conflicts with any subsequent Rule or
    Order adopted by the Commission (except an Order specifically intended
    to revise the terms of this Consent Decree to which TCM does not
    expressly consent) that provision will be superseded by such Rule or
    Order.
        34. Successors and Assigns. TCM agrees that the provisions of this
    Consent Decree shall be binding on its successors, assigns, and
    transferees.
        35. Final Settlement. The Parties agree and acknowledge that this
    Consent Decree shall constitute a final settlement between the Parties
    with respect to the Investigation. In furtherance of settlement, and
    subject to the other terms of this Consent Decree, the Parties agree as
    follows:

      a.  This Consent Decree is contingent upon court approval of the SDNY
            Settlement, but, otherwise, does not settle any other
            investigations that have been or might be conducted by other
            law enforcement agencies or offices;

      b.  TCM will withdraw its Petition for Reconsideration and not pursue
            any other objections presently before USAC and the Commission
            related to claims involving the $7,460,884 in Lifeline
            reimbursements held by USAC, including the Letter from Steve
            Augustino, Counsel for TCM, Kelley Drye & Warren, LLP, to
            Michelle Garber, USAC (May 9, 2016) and Total Call Mobile,
            Inc., NAL/Acct. No. 201632080004, Response to Paragraph 102 of
            the Notice of Apparent Liability for Forfeiture, FCC 16-44
            (2016); and

      c.  TCM agrees not to initiate any additional actions or proceedings,
            including before any court or tribunal, seeking payments for
            Lifeline services that are the subject of the Investigation.

        36. Modifications. This Consent Decree cannot be modified without
    the advance written consent of both Parties.
        37. Paragraph Headings. The headings of the paragraphs in this
    Consent Decree are inserted for convenience only and are not intended
    to affect the meaning or interpretation of this Consent Decree.
        38. Authorized Representative. Each Party represents and warrants
    to the other that it has full power and authority to enter into this
    Consent Decree. Each person signing this Consent Decree on behalf of a
    Party hereby represents that he or she is fully authorized by the Party
    to execute this Consent Decree and to bind the Party to its terms and
    conditions.
        39. Counterparts. This Consent Decree may be signed in counterpart
    (including electronically or by facsimile). Each counterpart, when
    executed and delivered, shall be an original, and all of the
    counterparts together shall constitute one and the same fully executed
    instrument.

    ____________________

    Travis LeBlanc
    Chief
    Enforcement Bureau

    ____________________

    Date
    ____________________

    Yasunori Matsuda
    Chief Executive Officer
    Total Call Mobile, LLC

    ____________________

    Date
                                     ______

             Testimony of FCC Commissioner Ajit Pai--July 12, 2016
        Chairman Walden, Ranking Member Eshoo, and Members of the
    Subcommittee, thank you for giving me the opportunity to testify this
    morning. Since 2012, it has been an honor to work with you on a wide
    variety of issues, from freeing up more spectrum for consumer use to
    encouraging the deployment of high-speed broadband.
        I want to begin by expressing my gratitude to the Members of this
    Subcommittee for the bipartisan leadership you have shown on a number
    of important matters, particularly those involving public safety.
        The Kari's Law Act of 2016 is one such example. Dialing 911 should
    always connect someone in need with emergency personnel who can help.
    But this doesn't always happen. In some hotels, offices, college dorms,
    and other large buildings, calls to 911 won't go through because the
    multi-line telephone systems (MLTS) in use in those facilities require
    callers to dial a ``9'' before placing the call. The Kari's Law Act of
    2016 would help fix this problem by requiring MLTS systems to have a
    default configuration that allows direct 911 calling.
        I want to thank the Subcommittee for holding a hearing on the
    Kari's Law Act three months ago. I can say that your efforts, along
    with the courageous work of Hank Hunt, Kari's father, and many others,
    are making a difference. Indeed, just one month after your hearing,
    this legislation passed the House. I hope the Senate moves quickly to
    pass the companion legislation introduced by Senators Deb Fischer, Amy
    Klobuchar, John Cornyn, Ted Cruz, and Brian Schatz, and that this
    common-sense, bipartisan public safety measure soon becomes law.
        I would like to focus the rest of my testimony on two other
    important topics: the FCC's set-top box proposal and the waste, fraud,
    and abuse that have plagued the FCC's Lifeline program.
        Set-Top Box.--I am deeply concerned about the FCC's proposed set-
    top box rules. The public input submitted to the agency in recent weeks
    makes clear that I am not alone. During my time at the Commission, I've
    never seen such a large and diverse coalition come together with
    respect to any other issue. Chairman Wheeler's proposal has united
    content creators and cable operators. It has brought together Democrats
    and Republicans, conservatives, moderates, and liberals. And it has led
    to civil rights organizations,\1\ privacy advocates,\2\ environmental
    organizations,\3\ and free-market proponents \4\ making common cause--
    all in opposition to the FCC's proposal. The breadth and depth of
    opposition signal how badly the FCC's scheme misses the mark. I cannot
    put it any better than Commissioner Rosenworcel did last month when she
    said that the FCC's proposal has ``real flaws'' and ``[w]e need to find
    another way forward.'' \5\
    ---------------------------------------------------------------------------
        \1\ See, e.g., Letter from Brent Wilkes, National Executive
    Director, League of United Latin American Citizens, to the Honorable
    Tom Wheeler, Chairman, FCC, MB Docket No. 15-64 (Feb. 17, 2016).
        \2\ See, e.g., Electronic Privacy Information Center Comments, MB
    Docket No. 16-42 and CS Docket No. 97-80 (Apr. 22, 2016).
        \3\ See, e.g., Noah Horowitz, FCC Proposal Could Undermine Efforts
    to Bring Down National Set-Top Box Energy Use, NRDC (May 04, 2016),
    https://www.nrdc.org/experts/noah-horowitz/fcc-proposal-could-
    undermine-efforts-bring-down-national-set-top-box-energy (last visited
    July 7, 2016).
        \4\ See, e.g., TechFreedom and Competitive Enterprise Institute
    Comments, MB Docket No. 16-42 and CS Docket No. 97-80 (Apr. 22, 2016).
        \5\ David Shephardson, U.S. Cable Industry Proposes Allowing
    Consumers to Scrap Set-Top Boxes, Reuters (June 17, 2016), http://
    www.reuters.com/article/us-fcc-tv-regulations-idUSKC
    N0Z32DK.
    ---------------------------------------------------------------------------
        What should that way forward look like?
        First, it must protect the intellectual property of content
    creators. Currently, video programmers use licensing and contractual
    agreements with cable operators to protect and control their content.
    But as Senate Minority Leader Harry Reid has pointed out, under the
    FCC's proposal, it is ``unclear what . . . duty [third-party set-top
    box providers] would have to protect programming content or otherwise
    comply with the licensing agreements'' and whether ``programmers would
    have any ability to enforce these agreements directly with the third-
    party providers.'' \6\ This, according to Senator Dianne Feinstein,
    raises concerns about whether ``third-parties could create devices that
    enable piracy and hinder the ability of content providers to control
    their creative work.'' \7\ Senator Bill Nelson, the Ranking Member of
    the Senate Commerce Committee, has said that FCC rules should not ``be
    the means by which third parties gain, for their own commercial
    advantage, the ability to alter, add to, or interfere with programming
    provided by content providers.'' \8\ But unfortunately, that's just
    what the FCC's proposed rules would do. They would facilitate piracy.
    They would allow third-party set-top box manufacturers to insert their
    own advertising into programmers' content. And they would allow those
    same manufacturers to remove advertising from that content--all without
    the programmers' consent.
    ---------------------------------------------------------------------------
        \6\ Letter from Senator Harry Reid to the Honorable Tom Wheeler,
    Chairman, FCC (June 14, 2016).
        \7\ Letter from Senator Dianne Feinstein to the Honorable Tom
    Wheeler, Chairman, FCC (May 25, 2016).
        \8\ Letter from Senator Bill Nelson to the Honorable Tom Wheeler,
    Chairman, FCC (Feb. 12, 2016).
    ---------------------------------------------------------------------------
        Relatedly, we must pay special attention to the concerns that have
    been raised about the impact of the FCC's proposal on minority
    programmers. As Reverend Jesse Jackson has put it, the FCC's proposed
    rules would allow third-party set-top box manufacturers to ``pull
    networks apart, ignore copyright protections and dismantle the local
    and national advertising streams that have traditionally supported high
    quality, multicultural content.'' \9\ He continued, ``[t]he result
    [would be] a deep threat to the entire creative ecosystem, and
    especially smaller, independent and diverse networks and programmers
    that often lack the deep pocket resources to weather this type of
    transition.'' \10\ Moreover, the FCC's proposal would allow third-party
    set-top box manufacturers to rearrange cable operators' channel
    lineups, to the detriment of minority programmers. This digital
    redlining shouldn't be permitted.
    ---------------------------------------------------------------------------
        \9\ Jesse L. Jackson, Future of TV Must Not Sacrifice Minority
    Media: Jesse Jackson, USA Today (June 6, 2016), http://
    www.usatoday.com/story/opinion/2016/06/06/fcc-set-top-box-proposal-
    minority-impact-opposition-media-diversity-column/85301308l.
        \10\ Id.
    ---------------------------------------------------------------------------
        That's why Representative Yvette Clarke of this Subcommittee and
    many other members of the Congressional Black Caucus have called for
    the FCC to stop pushing this proposal until it analyzes the ``impact of
    the proposed rules on diversity of programming, [and] independent and
    minority television programming.'' \11\ A similar request has been made
    by major civil rights organizations, including the League of United
    Latin American Citizens (LULAC) and the National Urban League.\12\ The
    FCC should listen to what these voices are saying.
    ---------------------------------------------------------------------------
        \11\ Letter from Representative Yvette Clarke et al., to the
    Honorable Tom Wheeler, Chairman, FCC (Apr. 22, 2016).
        \12\ See Letter from Marc H. Morial, President and CEO, National
    Urban League et al., to the Honorable Tom Wheeler, Chairman, FCC, MB
    Docket No. 16-42, CS Docket No. 97-80, and MB Docket No. 16-41 (Mar.
    21, 2016).
    ---------------------------------------------------------------------------
        Second, we must address the special challenges faced by small video
    providers. The record makes clear that it would be very expensive for
    all video providers to comply with the Commission's proposed rules. And
    as is so often the case, these rules would have a disproportionate
    impact on small companies. Indeed, the American Cable Association has
    stated that the FCC's proposed rules would force over 200 small cable
    operators to either go out of business or stop offering video
    service.\13\ And the message from small telecommunications carriers
    that are in the video business has been similar.\14\ Small wonder,
    then, that Capitol Hill is also concerned. A bipartisan group of 61
    U.S. Congressmen, led by Representative Kevin Cramer, recently told the
    Commission that it is ``concerned the proposal threatens the economic
    welfare of small pay-TV companies providing both vital communications
    services to rural areas and competitive alternatives to consumers in
    urban markets.'' \15\ This concern was reiterated by another bipartisan
    group of ten U.S. Senators who stressed that ``[s]mall providers will
    not be able to afford the costs that could be associated with building
    new architecture to comply with the proposed rule.'' \16\
    ---------------------------------------------------------------------------
        \13\ ACA Applauds Senate Letter Asking FCC to Press Pause on Set-
    Top Box Proceeding, American Cable Association (May 27, 2016), http://
    www.americancable.org/node/5736 (last visited July 7, 2016).
        \14\ See generally NTCA-The Rural Broadband Association Comments,
    MB Docket No. 16-42 and CS Docket No. 97-80 (Apr. 22, 2016); WTA-
    Advocates for Rural Broadband Comments, MB Docket No. 16-42 and CS
    Docket No. 97-80 (Apr. 22, 2016).
        \15\ Letter from Representative Kevin Cramer et al., to the
    Honorable Tom Wheeler, Chairman, FCC (May 5, 2016).
        \16\ Letter from Senator Steve Daines et al., to the Honorable Tom
    Wheeler, Chairman, FCC (May 26, 2016).
    ---------------------------------------------------------------------------
        The impact of the FCC's proposed rules would thus be particularly
    severe for rural Americans because they are disproportionately served
    by smaller operators. They will be left with fewer choices for video
    service. Moreover, the FCC's rules will hamper rural broadband
    deployment as small operators devote limited funds to complying with
    the FCC's set-top box rules rather than delivering better, faster, and
    cheaper Internet access.
        Third, we must protect Americans' privacy. Senate Minority Leader
    Harry Reid has pointed out that many third-party manufacturers will
    find ``real value . . . not in producing or selling the [set-top] box
    but in the data that the box will collect.'' \17\ That is why Senator
    Patrick Leahy, Ranking Member of the Senate Judiciary Committee, has
    stressed that the ``same Federal privacy protections and enforcement
    mechanisms that apply to proprietary set-top boxes today should apply
    to third-party navigation systems as well.'' \18\ Unfortunately, the
    FCC's proposal fails this basic test. There should not be one set of
    privacy rules for cable operators' set-top boxes and another for third-
    party boxes. There should not be one enforcement mechanism for cable
    operators' set-top boxes and another for third-party boxes. The
    regulatory playing field should be level. All customers should have the
    same privacy protections.
    ---------------------------------------------------------------------------
        \17\ Supra note 6.
        \18\ Letter from Senator Patrick Leahy to the Honorable Tom
    Wheeler, Chairman, FCC (May 26, 2016).
    ---------------------------------------------------------------------------
        Fourth, we must embrace the technology of the future rather than
    cling to the hardware of the past. I don't believe that the American
    people want more set-top boxes in their homes. But that's precisely
    what the FCC's plan would produce. To comply with the proposed rules,
    video providers would likely place a new gateway device into each
    subscriber's home to join the set-top box or boxes that are already
    there. Thus, the FCC's proposal would shackle us to an old technology
    that nobody seems to want. Echoing the sentiments of Senator Nelson, I,
    and millions of others, ``long for the day when the clunky set-top box
    fades away.'' \19\
    ---------------------------------------------------------------------------
        \19\ Supra note 8.
    ---------------------------------------------------------------------------
        We need to focus on the future. Our goal should not be to have more
    boxes. Nor should it be to ``unlock the box.'' It should be to get rid
    of the set-top box altogether. And that goal is now within our grasp.
    Americans are increasingly accessing video programming through apps.
    And with an app, there is no need to have a set-top box. So instead of
    paying a monthly fee to rent a box from a cable operator, your
    smartphone, tablet, or smart television can be your navigation device.
        I believe that the FCC should welcome and encourage the market's
    movement in the direction of apps. That's why I thought that the
    Commission's Notice of Proposed Rulemaking should have given equal and
    fair treatment to the app-based solution set forth by the FCC's
    Downloadable Security Technology Advisory Committee, rather than
    dismissing it in three cursory and critical paragraphs. And that's why
    I note with interest the recent industry proposal that embraces an app-
    based approach. My office is currently reviewing that proposal and
    meeting with a wide range of stakeholders to see what they think about
    it. I look forward to hearing the views of the Members of this
    Subcommittee on this alternative proposal, too.
        Lifeline Abuse.--The FCC must be vigilant in stopping abuse of the
    Universal Service Fund. Recall that this program is funded by a tax on
    the phone bills that consumers pay each month. That tax is now at 17.9
    percent, nearly double what it was in January 2009. Hard-working
    Americans deserve to know that the money they contribute each month to
    the Fund is not wasted or put to fraudulent use. So I applaud the
    decision of House Energy and Commerce Committee Chairman Fred Upton to
    launch an investigation into the waste, fraud, and abuse in the
    Lifeline program.
        Unfortunately, the Commission's recent investigation of Total Call
    Mobile revealed much about the dubious practices of many wireless
    resellers. We learned, for example, how Total Call Mobile's sales
    agents repeatedly registered duplicate subscribers (that is,
    individuals receiving multiple subsidies) and used fake Social Security
    numbers to register duplicate subscribers--all resulting in the
    Universal Service Administrative Company (USAC) finding 32,498 enrolled
    Lifeline duplicates. We learned how Total Call Mobile's sales agents
    repeatedly overrode the safeguards of the National Lifeline
    Accountability
        Database (NLAD)--abuse so far-reaching that at one point, 99.8
    percent of Total Call Mobile's new subscribers were a result of
    overrides. We also learned that Total Call Mobile was not alone. Its
    sales agents testified that they worked side-by-side with sales agents
    and supervisors who worked at various points with other Lifeline
    wireless resellers.
        After the revelations of the Total Call Mobile case, I began
    investigating the effectiveness of our Federal safeguards. What I have
    found so far is disturbing.
        Some background. Duplicate subscribers have long plagued Lifeline.
    To combat this problem, the FCC in 2012 prohibited a single household
    from obtaining more than one Lifeline subscription. It also established
    the NLAD. Administered by the USAC at the FCC's direction, the NLAD is
    designed to help carriers identify and prevent duplicate claims for
    Lifeline service. But is it really stopping such duplicate claims?
        Although my investigation is still ongoing, initial results suggest
    that American taxpayers should be concerned. The extent of waste,
    fraud, and abuse in the program appears greater than I imagined.
        First, USAC explained that the NLAD determines whether a Lifeline
    subscription would duplicate another at that same address. But wireless
    resellers may override a duplicate determination, called an independent
    economic household (IEH) override, and may do so without USAC
    oversight. An applicant (or, more likely, an unscrupulous wireless
    reseller) need only check a box. USAC's data reveal that wireless
    resellers enrolled 4,291,647 subscribers using the IEH override process
    since October 2014. That's more than 35.3 percent of all subscribers
    enrolled in NLAD-participating states during that period. That's more
    than the population of the State of Oregon. And the annual price to the
    taxpayer is steep--about $476 million.
        Second, USAC reported that at least 16 other major Lifeline
    wireless resellers have used similar tactics as Total Call Mobile. I
    asked USAC whether these wireless resellers enrolled duplicate
    subscribers, and indeed they did. Between October 2014 and May 2015,
    USAC discovered 213,283 duplicates among these wireless resellers. One
    year of service for these duplicates costs taxpayers almost $23.7
    million.
        Third, USAC explained that the NLAD does not prevent wireless
    resellers from requesting and receiving Federal subsidies for
    subscribers who are not enrolled in the NLAD. In other words, a
    wireless reseller may seek Federal funds for phantom subscribers--
    subscribers who aren't subject to Federal safeguards at all--and can
    get away with it unless they're caught after the fact. And in a 16-
    state sample, these wireless resellers exploited that loophole 460,032
    times, costing taxpayers almost $4.3 million.
        Fourth, USAC explained that the NLAD verifies the identity of an
    applicant using a third-party identity verification (TPIV) process in
    which an applicant's first name, last name, date of birth, and the last
    four digits of his or her Social Security number are matched against
    official records. But wireless resellers can override that safeguard,
    and before February 2, 2015, they did so without any Federal oversight.
    From October 2014 through February 2015, 10 wireless resellers overrode
    Federal safeguards more than half the time, with seven--like Total Call
    Mobile--overriding the TPIV process more than 90 percent of the time.
    Roughly one-third of applicants enrolled by wireless resellers during
    that period, or 821,482 subscribers, were enrolled using a TPIV
    override.
        On February 2, 2015, USAC implemented a new process for TPIV
    overrides. Now, a wireless reseller is supposed to review the
    appropriate documents for an applicant and certify to USAC that it has
    done so. USAC staff reviews that certification--but not the actual
    underlying documents--before authorizing a TPIV override. USAC's data
    reveal that wireless resellers enrolled 277,599 subscribers through the
    new TPIV process, with some wireless resellers relying on that process
    much more heavily than others. In all, the annual cost of subscribers
    enrolled through TPIV overrides approaches $122 million.
        Fifth, USAC explained that the NLAD authenticates an applicant's
    address with the U.S. Post Office database but that wireless resellers
    can override a failed address authentication without any review by USAC
    staff. USAC's data reveal that wireless resellers enrolled 494,921
    subscribers through the address override process since October 2014,
    with some wireless resellers relying on that process much more heavily
    than others. The annual cost of subscribers enrolled through address
    overrides is almost $55 million.
        Putting these numbers together, wireless resellers provided service
    to 213,283 known duplicates, claimed support for up to 460,032 phantom
    customers, and enrolled 5,885,649 subscribers by overriding Federal
    safeguards between October 2014 and April 2016. That likely resulted in
    hundreds of millions of Universal Service Fund money--taxpayer money--
    going not to deserving low-income consumers but to wireless resellers.
    That's outrageous. I plan to work with this Committee and my colleagues
    to stop this spending spree immediately.
                                     * * *
        Chairman Walden, Ranking Member Eshoo, and Members of the
    Subcommittee, thank you again for holding this hearing and inviting me
    to testify. I look forward to answering your questions, listening to
    your views, and continuing to work with you and your staff in the days
    ahead.
                                     ______

                                                        January 3, 2017
                                   Before the
                       Federal Communications Commission
                             Washington, D.C. 20554

    In the Matter of                                )
                                                    )
    Lifeline and Link Up Reform                     )   WC Docket No. 11-42
     and
    Modernization                                   )
                                                    )
    Telecommunications Carriers                     )   WC Docket No. 09-197
     Eligible for
    Universal Service Support                       )

                PETITION FOR RECONSIDERATION OF NATIONAL TRIBAL
                         TELECOMMUNICATIONS ASSOCIATION
    I. Introduction
        Pursuant to Section 1.429 of the Commission's rules, the National
    Tribal Telecommunications Association (``NTTA'') submits this Petition
    for Reconsideration of the Wireline Competition Bureau's (``Bureau'')
    Order adopted in the Federal Communications Commission's (``FCC'' or
    ``Commission'') above-captioned proceeding conditionally granting
    designation to certain mobile wireless resellers to be Lifeline
    Broadband Providers (``LBP'') under the Commission's Lifeline universal
    service support mechanism.\1\
    ---------------------------------------------------------------------------
        \1\ Lifeline and Link Up Reform and Modernization et al., WC Docket
    No. 11-42 et al., Order, DA 16-1325 (Dec. 1, 2016) (LBP Designation
    Order).
    ---------------------------------------------------------------------------
        NTTA's member companies consist of Tribally-owned communications
    companies including Cheyenne River Sioux Telephone Authority, Fort
    Mojave Telecommunications, Inc., Gila River Telecommunications, Inc.,
    Hopi Telecommunications, Inc., Mescalero Apache Telecom, Inc.,
    Saddleback Communications, San Carlos Apache Telecommunications
    Utility, Inc., Tohono O'odham Utility Authority, and Warm Springs
    Telecom. NTTA's mission is to be the national advocate for
    telecommunications service on behalf of its member companies and to
    provide guidance and assistance to members who are working to provide
    modern telecommunications services to Tribal lands.
        NTTA members have long served their tribal communities and helped
    advance the communications priorities and goals of those communities as
    articulated by their tribal governments. The Commission has recognized
    this right of tribal governments since it determined that carriers
    seeking to be designated as eligible telecommunications carriers
    (``ETC'') to serve tribal lands should petition the Commission, instead
    of state jurisdictions, which in turn would work with tribal
    governments to ensure the Commission's fiduciary duties were
    fulfilled.\2\ Protection of tribal sovereign rights to determine how to
    advance communications priorities and goals coupled with a showing of
    the failure by the Bureau to follow procedures established by the
    Commission and set forth in its rules, form the basis of this petition
    for reconsideration.
    ---------------------------------------------------------------------------
        \2\ See Federal-State Joint Board on Universal Service; Promoting
    Deployment and Subscribership in Unserved and Underserved Areas,
    Including Tribal and Insular Areas, CC Docket No. 96-45, Twelfth Report
    and Order, Memorandum Opinion and Order, and Further Notice of Proposed
    Rulemaking, 15 FCC Rcd 12208 (2000) (2000 Tribal Lifeline Order).
    ---------------------------------------------------------------------------
        In considering a petition for reconsideration, the Commission
    requires that petitioners ``shall state with particularity the respects
    in which petitioner believes the action taken should be changed.'' \3\
    As will be demonstrated, there are particular violations of Commission
    rules that warrant the reconsideration of the Bureau's decision in the
    LBP Designation Order. Further, the facts NTTA puts forward below are
    ones that were made to and known by the Commission. NTTA filed comments
    in the proceeding and explained that the rule at issue in this petition
    was not complied with by either the applicants for LBP designation or
    the Commission.\4\ NTTA, therefore, respectfully requests that the
    Commission consider the merits of this petition and reverse the
    Bureau's decision. NTTA further requests that the Commission make clear
    that any LBP applicant seeking to serve Tribal lands must comply with
    the requirements of section 54.202(c) and acknowledge its own need to
    comply with this rule.
    ---------------------------------------------------------------------------
        \3\ 47 C.F.R. Sec. 1.429(c).
        \4\ 47 C.F.R. Sec. 1.429(l)(2).
    ---------------------------------------------------------------------------
    II. PURSUANT TO COMMISSION RULES, TRIBAL GOVERNMENTS AND TRIBAL
            REGULATORY AUTHORITIES SHOULD HAVE RECEIVED
            NOTICE FROM THE APPLICANTS AND THE COMMISSION SHOULD HAVE
            PROVIDED NOTICE THAT IT WAS SEEKING COMMENT ON THE PETITIONS
            FOR DESIGNATION TO BE LBPs.
        In the 2016 Lifeline Modernization Order, the Commission retained
    the requirement that Lifeline providers be designated as ETCs, but it
    streamlined procedures for entities to be designated as LBPs.\5\
    Streamlining of the process, however, did not relieve filing carriers
    of their obligation to provide a copy of their petition to affected
    tribal government and tribal regulatory authorities at the time they
    filed their petition with the Federal Communications Commission, nor
    did it relieve the Commission of its obligation to notify tribal
    governments and tribal regulatory authorities of requests made by
    carriers to serve tribal lands.\6\ The requirements of section
    54.202(c) are important obligations the Commission must uphold as they
    are grounded in the Commission's Federal trust obligation and the
    tribes' sovereignty and self-determination rights. There is no evidence
    in the record of compliance with section 54.202(c) by the carriers
    granted LBP status in the LBP Designation Order. For this reason, the
    Commission should reconsider and reverse the Bureau's granting of LBP
    status to those petitioners that seek to serve on tribal lands.
    ---------------------------------------------------------------------------
        \5\ See Lifeline and Link Up Reform and Modernization et al., WC
    Docket No. 11-42 et al., Third Report and Order, Further Report and
    Order, and Order on Reconsideration, 31 FCC Rcd 3962, 4063, para. 223
    (2016) (2016 Lifeline Modernization Order).
        \6\ Id. at 4067, para. 284 (``All LBPs, regardless of whether they
    qualify for streamlined treatment, must meet the requirements for
    designation as a Lifeline-only ETC established in Section 214(e) of the
    Act and section 54.201 and 54.202 of the Commission's rules.''). See 47
    C.F.R. Sec. 54.202(c) (``A common carrier seeking designation as an
    eligible telecommunications carrier under section 214(e)(6) for any
    part of Tribal lands shall provide a copy of its petition to the
    affected tribal government and tribal regulatory authority, as
    applicable, at the time it files its petition with the Federal
    Communications Commission. In addition, the Commission shall send any
    public notice seeking comment on any petition for designation as an
    eligible telecommunications carrier on Tribal lands, at the time it is
    released, to the affected tribal government and tribal regulatory
    authority, as applicable, by the most expeditious means available.'').
    ---------------------------------------------------------------------------
    A. Important Tribal Rights are Embodied in Section 54.202(c)
        Section 54.202(c) of the Commission's rules traces its genesis back
    to a series of decisions made by the Commission beginning in 2000 that
    have continued through its 2016 decision in this proceeding. In 2000,
    the Commission took concrete steps to formalize its recognition of
    tribal sovereignty, self-determination, and its Federal trust
    obligation. The Commission recognized, through its Tribal Policy
    Statement, the unique legal relationship and Federal trust relationship
    it, as part of the Federal Government, has with tribal governments. It
    further recognized the tribal governments' ``inherent sovereign powers
    over their members and territory.'' \7\ In order to foster better
    coordination between the FCC and tribal governments, the Commission
    committed to ``consult[ing] with tribal governments prior to
    implementing any regulatory action or policy that will significantly or
    uniquely affect Tribal governments, their land and resources.'' \8\
    ---------------------------------------------------------------------------
        \7\ See Statement of Policy on Establishing Government-to-
    Government Relationship with Indian Tribes, Policy Statement, 16 FCC
    Rcd 4078, 4080 (2000).
        \8\ Id. at 4081.
    ---------------------------------------------------------------------------
        Concurrent with the adoption of the Tribal Policy Statement, the
    Commission also expounded on its authority, under section 214(e)(6) of
    the Telecommunications Act of 1996, to determine whether state
    commissions had jurisdiction over carriers seeking to serve tribal
    lands within their boundaries and designating ETCs to serve tribal
    lands where the Commission found the state commission lacked
    jurisdiction.\9\ As the Commission stated in the 2000 Tribal Lifeline
    Order, ``we are mindful that the Federal trust doctrine imposes on
    Federal agencies a fiduciary duty to conduct their authority in manner
    that protects the interest of the tribes.'' \10\
    ---------------------------------------------------------------------------
        \9\ 2000 Tribal Lifeline Order, 15 FCC Rcd 12208.
        \10\ Id. at 12263, para. 119.
    ---------------------------------------------------------------------------
        In 2005, the Commission took additional steps to formalize notice
    requirements it and carriers seeking designation to serve tribal lands
    would need to undertake in order to provide tribal governments and
    tribal regulatory authorities a meaningful opportunity to comment on
    petitions that would affect their tribal lands.\11\ Applicants seeking
    designation for ETC status on tribal lands were required to provide
    copies of their petitions to the affected tribal governments and tribal
    regulatory authorities at the time of the filing of their application
    with the Commission. In addition, the Commission was required to send a
    copy of the public notice seeking comment on the petition to the tribal
    governments and regulatory authorities via overnight mail.\12\ The 2005
    Tribal ETC Designation Order adopted the requirement that carriers and
    the Commission provide notice to tribal governments that is today
    section 54.202(c) of the Commission's rules, which remains in effect.
    ---------------------------------------------------------------------------
        \11\ Federal-State Joint Board on Universal Service, CC Docket No.
    96-45, Report and Order, 20 FCC Rcd 6371, 6400, para. 66 (2005).
        \12\ Id. at 6401, para. 67. The overnight mail requirement was
    subsequently changes to be ``the most expeditious means available.'' 47
    C.F.R. Sec. 54.202(c).
    ---------------------------------------------------------------------------
    B. Petitioners and the Commission Did Not Comply with the Requirements
            of 54.202(c)
        NTTA filed comments on November 17, 2016, reminding the Commission
    of the obligations that exist under section 54.202(c).\13\ In that
    filing, NTTA noted that it had only anecdotal evidence of one
    petitioner seeking to comply with the requirements. In a subsequent
    review of the 21 applications filed to date that clearly intend to
    serve Tribal lands, NTTA found only two applications that cited their
    compliance with the requirements of 54.202(c).\14\ TracFone, which has
    applied for a nationwide grant, stated in its petition that ``in
    accordance with 47 C.F.R. Sec. 54.202(c), TracFone is sending a copy of
    its Petition to the relevant tribal governments and tribal regulatory
    authorities.'' \15\ Similarly, the petition filed by Commnet Wireless,
    LLC notes that ``section 54.202(c) requires a common carrier that seeks
    designation as an ETC under Section 214(e)(6) on Tribal lands to
    provide a copy of its petition to the affected tribal government and
    tribal regulatory authority at the time it files its petition with the
    Commission.\16\ Commnet acknowledges such a requirement and certifies
    that a copy of its Petition will be provided to the Tribal governments
    and/or tribal regulatory authorities identified in [its petition] at
    the time of this [its] filing.'' No other applications certify their
    compliance.\17\
    ---------------------------------------------------------------------------
        \13\ Comments of National Tribal Telecommunications Association, WC
    Docket No. 09-197, 11-42.
        \14\ NTTA reviewed the Commission's designated page for Lifeline
    Broadband Provider Petitions and Public Comment Periods at https://
    www.fcc.gov/lifeline-broadband-provider-petitions-public-comment-
    periods (last visited Dec. 28, 2016). In reviewing the applications,
    NTTA was able to identify 21 applications that clearly intend to serve
    Tribal lands, six that exclude Tribal lands, and four that are unclear
    on whether the applicant intends to serve Tribal lands.
        \15\ TracFone Wireless, Inc.'s Petition for Designation as a
    Lifeline Broadband Provider, WC Docket No. 09-197 (filed Oct. 31,
    2016).
        \16\ Commnet Wireless, LLC's Petition for Streamlined Designation
    as a Lifeline Broadband Provider Eligible Telecommunications Carrier,
    WC Docket No. 09-197 at 11 (filed Dec. 8, 2016).
        \17\ Mescalero Apache Telecom, Inc was able to verify that its
    tribal government received a copy of TracFone's LBP petition.
    ---------------------------------------------------------------------------
        Applicants that failed to comply with this rule deny Tribal
    governments their rightful opportunity to review applications and
    evaluate whether those applicants will help advance the communications
    priorities and goals of the Tribal government. Such harm is an affront
    to Commission precedent and its trust obligations to Tribal governments
    which rely on the Commission to enforce its rules in protection of
    their interests.
        Moreover, it is unclear whether the Commission itself provided any
    notice to the affected tribal governments. NTTA has consulted with some
    of the tribal governments that oversee their member companies and has
    not been able to identify a tribal government that was notified by the
    Commission of the existence of an application that sought designation
    to become an LBP on their Tribal lands.\18\ By failing to follow its
    own codified process, the Commission has also denied those affected
    Tribal governments an opportunity to review the applications.
    ---------------------------------------------------------------------------
        \18\ NTTA does not consider the posting of LBP petitions filed,
    along with comment dates and states covered by petition, as adequate
    public notice.
    ---------------------------------------------------------------------------
        As explained above, section 54.202(c) represents more than another
    requirement, it is the manifestation of the tribal sovereignty and
    Federal trust relationship between the Commission and tribal
    governments. As such, it is deserving of recognition and compliance.
    There is no evidence that the carriers granted LBP designations in the
    LBP Designation Order complied with their requirements under section
    54.202(c). Moreover, it would appear that the Commission did not comply
    with its obligations under that rule either. Therefore, NTTA asks that
    the Commission reconsider the Bureau's actions and reverse the granting
    of the petitions until such time as the Commission is able to remedy
    these rule violations.
    III. THE COMMISSION SHOULD RECONSIDER THE BUREAU'S RECENT DESIGNATION
            OF TWO LBPs BECAUSE THEY WERE GRANTED
            BEFORE THE COMMENT PERIOD HAD ENDED.
        The Commission must also reconsider the grant given to KonaTel and
    Freedom Pop because the comment period on the applications had not
    ended prior to the Bureau's granting of the LBP designation to these
    entities.\19\ As noted on the Commission's website, the deadline for
    filing comments on the KonaTel Petition was December 21, 2016. The
    deadline for filing comments on the FreedomPop Petition was December
    10, 2016. The Commission, however, granted the petitions on December 1,
    2016 thereby denying potential commenters a full opportunity to
    consider the merits of the applications. KonaTel and FreedomPop are two
    of the 21 applications that failed to comply with the requirements of
    section 54.202(c), a point that could have been raised in the record
    had the comment period been completed. NTTA, therefore, asks that the
    Commission reconsider the designation of LBP given by the Bureau to
    KonaTel and FreedomPop to afford the public a full opportunity to
    comment on their petitions.
    ---------------------------------------------------------------------------
        \19\ Petition of KonaTel Inc. for Streamlined Designation as a
    Lifeline Broadband Provider Eligible Telecommunications Carrier, WC
    Docket No. 09-197 (filed Nov. 21, 2016) (KonaTel Petition); Petition of
    STS Media, Inc. DBA FreedomPop for Streamlined Designation as a
    Lifeline Broadband Provider Eligible Telecommunications Carrier, WC
    Docket No. 09-197 (filed Nov. 10, 2016) (FreedomPop Petition).
    ---------------------------------------------------------------------------
    IV. Conclusion
        For the above enumerated reasons, the Commission should reconsider
    the Bureau's LBP Designation Order. As NTTA has demonstrated, the rules
    that were not complied with by either the applicants or the Commission
    are important to the ongoing relationship between tribal governments
    and the Commission. They are relied upon to ensure the communications
    priorities and goals of the Tribal government are recognized. In
    addition, the Commission should reconsider the designations given to
    KonaTel and FreedomPop because the comment period for their petitions
    had not concluded prior to the Bureau's action granting the petitions.
                Respectfully submitted,
                                         Gregory W. Guice, Esq.
                                       Akin Gump Strauss Hauer and Feld LLP
             Counsel for National Tribal Telecommunications Association
                                     ______

                                                       January 18, 2017
                                   Before the
                       FEDERAL COMMUNICATIONS COMMISSION
                                 Washington, DC

    In the Matter of                                )
                                                    )
    Telecommunications Carriers                     )   WC Docket No. 09-197
     Eligible for
    Universal Service Support                       )
                                                    )
    Petitions for Designation as a                  )   WC Docket No. 11-42
     Lifeline
    Broadband Provider                              )

            RESPONSE AND OPPOSITION OF BOOMERANG WIRELESS, LLC D/B/A
            ENTOUCH WIRELESS TO THE PETITION FOR RECONSIDERATION OF
                 NATIONAL TRIBAL TELECOMMUNICATIONS ASSOCIATION
        Boomerang Wireless, LLC d/b/a enTouch Wireless (Boomerang or the
    Company), by and through the undersigned counsel, respectfully submits
    this response and opposition to the National Tribal Telecommunications
    Association's (NTTA's) \1\ petition for reconsideration of the Wireline
    Competition Bureau's (WCB's or Bureau's) December 1, 2016 Order
    designating Boomerang as a Lifeline Broadband Provider (LBP).\2\
    Boomerang acknowledges NTTA's concerns regarding notice requirements
    for LBP petitions and the Commission's long-standing policy of
    recognizing the sovereignty of Tribal governments and to involve Tribal
    governments in policy decisions that affect Tribal consumers. However,
    the Petition presents no evidence of a material error or omission that
    would justify reconsideration or reversal of the LBP Designation Order.
    Neither the Company's petition for designation as an LBP nor the
    Commission's review and approval of it violated the Commission's rules
    with regard to LBP eligible telecommunications carrier (ETC)
    designations. Additionally, the streamlined process for the docketed
    filing and review of LBP petitions established in the Lifeline
    Modernization Order is consistent with processes employed by the
    Commission for streamlined review in other contexts, and provided NTTA
    and its members adequate notice and opportunity to comment on
    Boomerang's petition. Accordingly, the Petition should be denied.
    ---------------------------------------------------------------------------
        \1\ See Petition for Reconsideration of National Tribal
    Telecommunications Association, WC Docket Nos. 11-42, 09-197 (Jan. 3,
    2017) (Petition). Notably, NTTA does not represent any sovereign Tribal
    nation or other Tribal authority, but rather is a coalition of
    Tribally-owned communications companies. Boomerang notes that not a
    single Tribal nation or organization that represents Tribal nations has
    objected to either the form or substance of Boomerang's LBP petition or
    designation.
        \2\ See Telecommunications Carriers Eligible for Universal Service
    Support, Petitions for Designation as a Lifeline Broadband Provider, WC
    Docket Nos. 09-197, 11-42, Order, DA 16--1325 (WCB rel. Dec. 1, 2016)
    (LBP Designation Order). The LBP Designation Order was issued pursuant
    to the rule changes adopted in the Federal Communications Commission's
    (FCC's or Commission's) Lifeline Modernization Order. See Lifeline and
    Link Up Reform and Modernization et al., WC Docket No. 11-42 et al.,
    Third Report and Order, Further Report and Order, and Order on
    Reconsideration, FCC 16-38 (rel. Apr. 27, 2016) (Lifeline Modernization
    Order).
    ---------------------------------------------------------------------------
        Notwithstanding the foregoing, Boomerang is both cognizant and
    respectful of the sovereignty of Tribal governments and it is committed
    to notifying, and, if required, seeking approval from the relevant
    Tribal authorities in each state where it received LBP designation
    prior to providing services to Tribal consumers in those states.
    Moreover, Boomerang acknowledges that NTTA's Petition illustrates the
    potential for confusion about the LBP review and approval process. As
    discussed below, Boomerang would support certain actions by the Bureau
    to clarify these processes and avoid uncertainty going forward.
    I. Standard of Review Under Section 1.429
        NTTA submits its Petition pursuant to section 1.429 of the
    Commission's rules, which allows an interested party to seek
    reconsideration of a final order in a rulemaking proceeding.\3\ The
    rule also states, however, that petitions for reconsideration ``may be
    dismissed or denied by the relevant bureau(s) or office(s) [if they] .
    . . [f]ail to identify any material error, omission, or reason
    warranting reconsideration.'' \4\ As set forth in this response, the
    Petition fails to present any evidence of a material error or omission
    that would warrant reconsideration of the LBP Designation Order, and
    therefore should be denied.
    ---------------------------------------------------------------------------
        \3\ See 47 C.F.R. Sec. 1.429.
        \4\ See 47 C.F.R. Sec. 1.429(l).
    ---------------------------------------------------------------------------
    II. Section 54.202(c) Does Not Apply to Petitions for LBP Designation
        NTTA's Petition relies primarily on the argument that Boomerang and
    the Commission failed to comply with the procedural requirements of
    section 54.202(c) of the Commission's rules.\5\ Specifically, NTTA
    asserts that Boomerang was obligated to provide a copy of its LBP
    petition to ``affected tribal government and tribal regulatory
    authorities at the time'' that Boomerang submitted its petition to the
    Commission.\6\ NTTA bases its assertion on language in the Lifeline
    Modernization Order which states that ``[a]ll LBPs . . . must meet the
    requirements for designation as a Lifeline-only ETC established in
    section 214(e) of the [Communications] Act and section 54.201 and
    54.202 of the Commission's rules.'' \7\ However, a closer examination
    of section 54.202 and the Lifeline Modernization Order shows that
    subsection (c) does not apply to LBP petitions.
    ---------------------------------------------------------------------------
        \5\ See Petition at 4-8.
        \6\ See id. at 4. NTTA further claims that the Commission was
    required to ``notify tribal governments and tribal regulatory
    authorities of requests made by carriers to serve tribal lands.'' Id.
        \7\ See id.; see also Lifeline Modernization Order  284.
    ---------------------------------------------------------------------------
        Through the Lifeline Modernization Order, the Commission codified
    the requirements for requests for LBP designation through a new
    subsection (d) to section 54.202.\8\ This new subsection states that
    ``[a] common carrier seeking designation as a Lifeline Broadband
    Provider eligible telecommunications carrier must meet the requirements
    of paragraph (a) of this section.''\9\ The adoption of separate
    requirements for LBP petitioners that expressly imposes only certain
    requirements of section 54.202(a) \10\ on LBP applicants demonstrates
    that the Commission did not intend for subsection (c) to apply to LBP
    designation requests. Therefore, Boomerang was not required to provide
    copies of its petition to the relevant Tribal governments and Tribal
    regulatory authorities in the states where it was seeking LBP
    designation.
    ---------------------------------------------------------------------------
        \8\ See 47 C.F.R. Sec. 54.202(d). The Commission also adopted a new
    subsection (e) to section 54.202, which addresses requests for
    expansion of an LBP's approved service area. See 47 C.F.R.
    Sec. 54.202(e).
        \9\ See 47 C.F.R. Sec. 54.202(d) (emphasis added).
        \10\ See Lifeline Modernization Order  284, n.746 (noting that the
    requirement to submit a 5-year improvement plan as required under
    section 54.202(a) would not apply to LBPs).
    ---------------------------------------------------------------------------
    III. The Process for Reviewing and Approving LBP Petitions Is
            Consistent with the Commission's Processes for Streamlined
            Reviews in Other Contexts and Gave NTTA Adequate Notice of and
            Opportunity to
            Comment on Boomerang's Petition
        The Commission's process for issuing the LBP Designation Order is
    consistent with traditional Commission practice regarding streamlined
    reviews. Applications chosen for streamlined review are presumed to be
    deemed granted unless the Commission informs the applicant otherwise
    during the streamlined review period.\11\
    ---------------------------------------------------------------------------
        \11\ See id.  278, 281; see also Worldcom, Inc. et al., v. FCC
    and U.S.A. No. 99-1395 (D.C. Cir. 1974) (noting that in the
    Interexchange Proceeding, the Commission adopted streamlined procedures
    whereby business service tariffs filed by AT&T were given streamlined
    processing whereby they were ``presumed lawful'' upon filing and would
    become effective after a fourteen day notice period); Streamlining the
    International Section 214 Authorization Process and Tariff
    Requirements, IB Docket No. 98-118, Report and Order, FCC 96-79 (rel.
    Feb. 29, 1996) (International Section 214 Order) (explaining that
    international section 214 applications are deemed automatically granted
    upon acceptance for streamlined processing); Review of Commission
    Consideration of Applications under the Cable Landing License Act, IB
    Docket No. 00-106, Report and Order, FCC 01-332 (rel. Dec. 14, 2001)
    (Cable Landing License Order).
    ---------------------------------------------------------------------------
        In the Lifeline Modernization Order, the Commission explained that
    a provider's petition for LBP designation will be subject to
    ``expedited review and will be deemed granted within 60 days of the
    submission of a completed filing'' unless the Commission notifies the
    petitioner the designation is not ``automatically effective.'' \12\ The
    Commission further noted that petitions that do not meet the
    streamlining criteria will not receive a presumption of approval after
    60 days but rather petitioners can expect action within six months of
    submission. It is clear from the language in the Lifeline Modernization
    Order that the Commission intended to adopt a streamlined procedure for
    LBP petitions consistent with its regulatory precedents \13\ on such
    matters.
    ---------------------------------------------------------------------------
        \12\ See Lifeline Modernization Order  278 (indicating petitions
    that do not qualify for streamlined processing will not be presumed to
    have LBP status approval) (emphasis added).
        \13\ See generally International Section 214 Order; Cable Landing
    License Order.
    ---------------------------------------------------------------------------
        As a result, the streamlined LBP petition process does not
    contemplate nor include a formal notice and comment procedure. The
    decision to set up a LBP tracker webpage was simply a courtesy done for
    informational purposes only, and the ``comment deadline'' indicated was
    neither an official act of the Commission nor the Bureau. It is well
    settled that informal postings or releases do not bind the Commission.
    For example, in MCI v. FCC, the court found that a Commission-issued
    press release was an unofficial, informal summary of agency action and
    could not be relied on as formal public notice.\14\ Comparably, here,
    the Bureau's LBP petitions webpage serves as a mere summary of LBP
    petition activity and cannot be relied on by NTTA or any other
    interested party as a legal mechanism establishing a formal comment
    cycle.
    ---------------------------------------------------------------------------
        \14\ See generally MCI v. FCC, 515 F.2d 385 (D.C. Cir. 1974).
    ---------------------------------------------------------------------------
        Though the Commission webpage does not constitute an official
    mechanism for comment, NTTA and its members had sufficient notice and
    opportunity to comment on Boomerang's petition. Boomerang's petition
    was electronically submitted and filed in a public docket designated to
    this proceeding. The requisite filing of the LBP designation petition
    in a pre-designated public docket afforded NTTA and its members
    adequate notice and opportunity to comment or oppose if they sought
    fit. Indeed, NTTA did in fact file comments with the Commission on
    November 17, 2016 regarding petitions filed for LBP designation at that
    time, and specifically referenced Boomerang's petition. Yet, NTTA
    raised no substantive issues about the petitions at that time. Thus,
    any claim by NTTA that it lacked notice of Boomerang's petition is moot
    and does not warrant reconsideration of Boomerang's LBP designation.
        Pursuant to the Lifeline Modernization Order, the Commission may
    approve a streamlined LBP petition at any point within 60 days of
    submission of a completed LBP petition.\15\ Therefore, the grant of
    Boomerang's LBP designation does not warrant a reconsideration of the
    Commission's decision.
    ---------------------------------------------------------------------------
        \15\ See Lifeline Modernization Order  278 (stating that LBP
    petitions eligible for streamlined processing ``will be deemed granted
    within 60 days of the submission . . .'').
    ---------------------------------------------------------------------------
    IV. Boomerang Will Notify, and If Required, Seek Approval from the
            Relevant Tribal Authorities Prior to Providing Lifeline Service
            on
            Tribal Lands
        While Boomerang respectfully opposes NTTA's Petition, it fully
    supports Commission policy recognizing the sovereignty of Tribal
    nations and similarly respects the sovereignty of all relevant Tribal
    governments and authorities throughout its LBP service area. Boomerang
    also acknowledges the Commission's policies designed to address the
    ``the difficulties many Tribal consumers face in gaining access to
    basic services'' and the ``important role of universal service support
    in helping to provide telecommunications services to the residents of
    Tribal lands.'' \16\ As such, Boomerang commits to notify and seek
    approval, if required, from the relevant Tribal authorities in each of
    the states where it was--or may in the future be--granted LBP
    designation prior to providing service to Tribal residents.
    ---------------------------------------------------------------------------
        \16\ Id.  206.
    ---------------------------------------------------------------------------
        Boomerang is a well-established provider of Lifeline services. The
    Company's business model includes a focus on providing service to
    residents on Tribal lands, and Boomerang currently provides Lifeline
    services to Tribal residents in 12 states. As a result of this
    experience, Boomerang has a unique understanding of the requirements to
    provide Tribal Lifeline service in various parts of the country. As it
    has done with respect to its Lifeline voice offerings, Boomerang will
    notify and seek the requisite approvals from the appropriate Tribal
    government or authority prior to offering Lifeline broadband services
    to residents of Tribal lands. Moreover, Boomerang previously agreed
    that it would not provide Lifeline voice services in certain
    territories served by Tribally-owned providers in Arizona, New Mexico
    and South Dakota, and will honor those agreements with respect to its
    Lifeline broadband services as well. Boomerang submits that these
    commitments will ensure that its Lifeline broadband service will best
    serve the interests of Tribal subscribers as well as advance the
    communications priorities and goals of Tribal authorities in each
    jurisdiction it serves.
    V. NTTA's Petition Illustrates that Clarification from the Bureau
            Regarding the LBP Designation Process Is Warranted
        Despite the deficiencies in the Petition that make reconsideration
    or reversal of the LBP Designation Order unwarranted, NTTA's request
    does illustrate the potential for confusion regarding the appropriate
    process for LBP petitions. As such, Boomerang would support certain
    actions by the Bureau to provide clarity about LBP petition
    requirements, and the process for reviewing and approving such
    petitions on a prospective basis, including the following:

       Issuance of guidance to clarify that section 54.202(c) does
            not apply in the LBP context in light of the adoption of
            section 54.202(d);

       Removal of the ``Comment Deadline'' column from the LBP
            petitions ``tracker'' page on the Commission's website and
            adoption of a formal mechanism to clarify expectations
            regarding streamlined LBP applications modeled after the
            approach for streamlined processing that is used for
            international section 214 applications wherein the Commission
            issues a Public Notice noting the presumption of approval at
            any point within 60 days after submission of a petition that
            qualifies for streamlined processing without establishing a
            formal comment period; and

       Issuance of a public notice explaining that a streamlined
            LBP petition may be acted upon at any point within 60 days
            after submission, which would make clear that interested
            parties should submit comments on the petition as soon as
            possible.

        Boomerang submits that these clarifications would help manage
    public expectations of the LBP review and approval process, and would
    prevent uncertainty going forward.\17\
    ---------------------------------------------------------------------------
        \17\ The Public Notice requirement contemplated herein should apply
    on a prospective basis only as new petitions for LBP designation are
    filed.
    ---------------------------------------------------------------------------
    VI. Conclusion
        Boomerang respects the sovereignty of Tribal nations and
    understands the importance of ensuring that these entities have notice
    from service providers prior to commencement of service on sovereign
    Tribal lands. However, for the reasons set forth in this response, and
    in light of Boomerang's commitments to cooperate with the appropriate
    Tribal authorities prior to providing Lifeline broadband services in
    Tribal areas, the Petition should be denied.
                Respectfully submitted,
                                               John J. Heitmann
                                                    Avonne Bell
                                         Jennifer R. Wainwright
                                                   Kelley Drye & Warren LLP
                                   Counsel for Boomerang Wireless, LLC
                                                 d/b/a enTouch Wireless
                                     ______

                                                       January 18, 2017
                                   Before the
                       FEDERAL COMMUNICATIONS COMMISSION
                                 Washington, DC

    In the Matter of                                )
    Telecommunications Carriers                     )   WC Docket No. 09-197
     Eligible for
    Universal Service Support                       )
                                                    )
    Petitions for Designation as a                  )   WC Docket No. 11-42
     Lifeline
    Broadband Provider                              )

          RESPONSE AND OPPOSITION OF KONATEL, INC. TO THE PETITION FOR
       RECONSIDERATION OF NATIONAL TRIBAL TELECOMMUNICATIONS ASSOCIATION
        KonaTel, Inc. (KonaTel or the Company), by and through the
    undersigned counsel, respectfully submits this response and opposition
    to the National Tribal Telecommunications Association's (NTTA's) \1\
    petition for reconsideration of the Wireline Competition Bureau's
    (WCB's or Bureau's) December 1, 2016 Order designating KonaTel as a
    Lifeline Broadband Provider (LBP).\2\ KonaTel acknowledges NTTA's
    concerns regarding notice requirements for LBP petitions and the
    Commission's long-standing policy of recognizing the sovereignty of
    Tribal governments and to involve Tribal governments in policy
    decisions that affect Tribal consumers. However, the Petition presents
    no evidence of a material error or omission that would justify
    reconsideration or reversal of the LBP Designation Order. Neither the
    Company's petition for designation as an LBP nor the Commission's
    review and approval of it violated the Commission's rules with regard
    to LBP eligible telecommunications carrier (ETC) designations.
    Additionally, the streamlined process for the docketed filing and
    review of LBP petitions established in the Lifeline Modernization Order
    is consistent with processes employed by the Commission for streamlined
    review in other contexts, and provided NTTA and its members adequate
    notice and opportunity to comment on KonaTel's petition. Accordingly,
    the Petition should be denied.
    ---------------------------------------------------------------------------
        \1\ See Petition for Reconsideration of National Tribal
    Telecommunications Association, WC Docket Nos. 11-42, 09-197 (Jan. 3,
    2017) (Petition). Notably, NTTA does not represent any sovereign Tribal
    nation or other Tribal authority, but rather is a coalition of
    Tribally-owned communications companies. KonaTel notes that not a
    single Tribal nation or organization that represents Tribal nations has
    objected to either the form or substance of KonaTel's LBP petition or
    designation.
        \2\ See Telecommunications Carriers Eligible for Universal Service
    Support, Petitions for Designation as a Lifeline Broadband Provider, WC
    Docket Nos. 09-197, 11-42, Order, DA 16-1325 (WCB rel. Dec. 1, 2016)
    (LBP Designation Order). The LBP Designation Order was issued pursuant
    to the rule changes adopted in the Federal Communications Commission's
    (FCC's or Commission's) Lifeline Modernization Order. See Lifeline and
    Link Up Reform and Modernization et al., WC Docket No. 11-42 et al.,
    Third Report and Order, Further Report and Order, and Order on
    Reconsideration, FCC 16-38 (rel. Apr. 27, 2016) (Lifeline Modernization
    Order).
    ---------------------------------------------------------------------------
        Notwithstanding the foregoing, KonaTel is both cognizant and
    respectful of the sovereignty of Tribal governments and it is committed
    to notifying, and, if required, seeking approvals from the relevant
    Tribal authorities in each state where it received LBP designation
    prior to providing services to Tribal consumers in those states.
    Moreover, KonaTel acknowledges that NTTA's Petition illustrates the
    potential for confusion about the LBP review and approval process. As
    discussed below, KonaTel would support certain actions by the Bureau to
    clarify these processes and avoid uncertainty going forward.
    I. Standard of Review Under Section 1.429
        NTTA submits its Petition pursuant to section 1.429 of the
    Commission's rules, which allows an interested party to seek
    reconsideration of a final order in a rulemaking proceeding.\3\ The
    rule also states, however, that petitions for reconsideration ``may be
    dismissed or denied by the relevant bureau(s) or office(s) [if they] .
    . . [f]ail to identify any material error, omission, or reason
    warranting reconsideration.'' \4\ As set forth in this response, the
    Petition fails to present any evidence of a material error or omission
    that would warrant reconsideration of the LBP Designation Order, and
    therefore should be denied.
    ---------------------------------------------------------------------------
        \3\ See 47 C.F.R. Sec. 1.429.
        \4\ See 47 C.F.R. Sec. 1.429(l).
    ---------------------------------------------------------------------------
    II. Section 54.202(c) Does Not Apply to Petitions for LBP Designation
        NTTA's Petition relies primarily on the argument that KonaTel and
    the Commission failed to comply with the procedural requirements of
    section 54.202(c) of the Commission's rules.\5\ Specifically, NTTA
    asserts that KonaTel was obligated to provide a copy of its LBP
    petition to ``affected tribal government and tribal regulatory
    authorities at the time'' that KonaTel submitted its petition to the
    Commission.\6\ NTTA bases its assertion on language in the Lifeline
    Modernization Order which states that ``[a]ll LBPs . . . must meet the
    requirements for designation as a Lifeline-only ETC established in
    section 214(e) of the [Communications] Act and section 54.201 and
    54.202 of the Commission's rules.'' \7\ However, a closer examination
    of section 54.202 and the Lifeline Modernization Order shows that
    subsection (c) does not apply to LBP petitions.
    ---------------------------------------------------------------------------
        \5\ See Petition at 4-8.
        \6\ See id. at 4. NTTA further claims that the Commission was
    required to ``notify tribal governments and tribal regulatory
    authorities of requests made by carriers to serve tribal lands.'' Id.
        \7\ See id.; see also Lifeline Modernization Order  284.
    ---------------------------------------------------------------------------
        Through the Lifeline Modernization Order, the Commission codified
    the requirements for requests for LBP designation through a new
    subsection (d) to section 54.202.\8\ This new subsection states that
    ``[a] common carrier seeking designation as a Lifeline Broadband
    Provider eligible telecommunications carrier must meet the requirements
    of paragraph (a) of this section.''\9\ The adoption of separate
    requirements for LBP petitioners that expressly imposes only certain
    requirements of section 54.202(a)\10\ on LBP applicants demonstrates
    that the Commission did not intend for subsection (c) to apply to LBP
    designation requests. Therefore, KonaTel was not required to provide
    copies of its petition to the relevant Tribal governments and Tribal
    regulatory authorities in the states where it was seeking LBP
    designation.
    ---------------------------------------------------------------------------
        \8\ See 47 C.F.R. Sec. 54.202(d). The Commission also adopted a new
    subsection (e) to section 54.202, which addresses requests for
    expansion of an LBP's approved service area. See 47 C.F.R.
    Sec. 54.202(e).
        \9\ See 47 C.F.R. Sec. 54.202(d) (emphasis added).
        \10\ See Lifeline Modernization Order  284, n.746 (noting that the
    requirement to submit a 5-year improvement plan as required under
    section 54.202(a) would not apply to LBPs).
    ---------------------------------------------------------------------------
    III. The Process for Reviewing and Approving LBP Petitions Is
            Consistent with the Commission's Processes for Streamlined
            Reviews in Other Contexts and Gave NTTA Adequate Notice of and
            Opportunity to
            Comment on KonaTel's Petition
        The Commission's process for issuing the LBP Designation Order is
    consistent with traditional Commission practice regarding streamlined
    reviews. Applications chosen for streamlined review are presumed to be
    deemed granted unless the Commission informs the applicant otherwise
    during the streamlined review period.\11\
    ---------------------------------------------------------------------------
        \11\ See id.  278, 281; see also Worldcom, Inc. et al., v. FCC
    and U.S.A, No. 99-1395 (D.C. Cir. 1974) (noting that in the
    Interexchange Proceeding, the Commission adopted streamlined procedures
    whereby business service tariffs filed by AT&T were given streamlined
    processing whereby they were ``presumed lawful'' upon filing and would
    become effective after a fourteen day notice period); Streamlining the
    International Section 214 Authorization Process and Tariff
    Requirements, IB Docket No. 98-118, Report and Order, FCC 96-79 (rel.
    Feb. 29, 1996) (International Section 214 Order) (explaining that
    international section 214 applications are deemed automatically granted
    upon acceptance for streamlined processing); Review of Commission
    Consideration of Applications under the Cable Landing License Act, IB
    Docket No. 00-106, Report and Order, FCC 01-332 (rel. Dec. 14, 2001)
    (Cable Landing License Order).
    ---------------------------------------------------------------------------
        In its Petition, NTTA maintains the Commission's actions were
    improper and warrant reconsideration of the LBP designation to KonaTel
    because ``the comment period on the applications had not ended prior to
    the Bureau's granting of'' LBP designation KonaTel.\12\
    ---------------------------------------------------------------------------
        \12\ See Petition at 8.
    ---------------------------------------------------------------------------
        NTTA fails, however, to acknowledge the specific parameters of what
    it means for a petition to be approved for streamlined processing.
    Commission precedent with streamlined procedures illustrates that
    applications that meet the specified streamlining criteria are expected
    to be noncontroversial and as such it is presumed that they will be
    deemed granted.\13\ In this case, the Commission's LBP Designation
    Order confirms this assessment by explaining ``there is no
    contradictory evidence available to us raising concern'' about
    KonaTel's LBP petition or any other LBP petition granted.\14\
    ---------------------------------------------------------------------------
        \13\ See e.g., Cable Landing License Order  13 (explaining that
    only applications that do not pose a risk will be streamlined);
    Worldcom, Inc. et al., v. FCC and U.S.A.
        \14\ See LBP Designation Order  8.
    ---------------------------------------------------------------------------
        In the Lifeline Modernization Order, the Commission explained that
    a provider's petition for LBP designation will be subject to
    ``expedited review and will be deemed granted within 60 days of the
    submission of a completed filing'' unless the Commission notifies the
    petitioner the designation is not ``automatically effective.'' \15\ The
    Commission further noted that petitions that do not meet the
    streamlining criteria will not receive a presumption of approval after
    60 days but rather petitioners can expect action within six months of
    submission. It is clear from the language in the Lifeline Modernization
    Order that the Commission intended to adopt a streamlined procedure for
    LBP petitions consistent with its regulatory precedents \16\ on such
    matters.
    ---------------------------------------------------------------------------
        \15\ See Lifeline Modernization Order  278 (indicating petitions
    that do not qualify for streamlined processing will not be presumed to
    have LBP status approval) (emphasis added).
        \16\ See generally International Section 214 Order; Cable Landing
    License Order.
    ---------------------------------------------------------------------------
        As a result, the streamlined LBP petition process does not
    contemplate nor include a formal notice and comment procedure. The
    decision to set up a LBP tracker webpage was simply a courtesy done for
    informational purposes only, and the ``comment deadline'' indicated was
    neither an official act of the Commission nor the Bureau. It is well
    settled that informal postings or releases do not bind the Commission.
    For example, in MCI v. FCC, the court found that a Commission-issued
    press release was an unofficial, informal summary of agency action and
    could not be relied on as formal public notice.\17\ Comparably, here,
    the Bureau's LBP petitions webpage serves as a mere summary of LBP
    petition activity and cannot be relied on by NTTA or any other
    interested party as a legal mechanism establishing a formal comment
    cycle.
    ---------------------------------------------------------------------------
        \17\ See generally MCI v. FCC, 515 F.2d 385 (D.C. Cir. 1974).
    ---------------------------------------------------------------------------
        Though the Commission webpage does not constitute an official
    mechanism for comment, NTTA and its members had sufficient notice and
    opportunity to comment on KonaTel's petition. KonaTel's petition was
    electronically submitted and filed in a public docket designated to
    this proceeding. The requisite filing of the LBP designation petition
    in a pre-designated public docket afforded NTTA and its members
    adequate notice and opportunity to comment or oppose if they sought
    fit. Indeed, NTTA did in fact file comments with the Commission on
    November 17, 2016 regarding petitions filed for LBP designation at that
    time. Yet, NTTA raised no substantive issues about the petitions on
    file at that time--or at any time since about those or any other LBP
    petitions. Thus, any claim by NTTA that it lacked notice of KonaTel's
    petition appears to be one of form over substance and does not warrant
    reconsideration of KonaTel's LBP designation.
        Pursuant to the Lifeline Modernization Order, the Commission may
    approve a streamlined LBP petition at any point within 60 days of
    submission of a completed LBP petition.\18\ Therefore, the grant of
    KonaTel's LBP designation does not warrant a reconsideration of the
    Commission's decision.
    ---------------------------------------------------------------------------
        \18\ See Lifeline Modernization Order  278 (stating that LBP
    petitions eligible for streamlined processing ``will be deemed granted
    within 60 days of the submission . . .'').
    ---------------------------------------------------------------------------
    IV. KonaTel Will Notify, and If Required, Seek Approval from the
            Relevant Tribal Authorities Prior to Providing Lifeline Service
            on Tribal Lands
        While KonaTel respectfully opposes NTTA's Petition, it fully
    supports Commission policy recognizing the sovereignty of Tribal
    nations and similarly respects the sovereignty of all relevant Tribal
    governments and authorities throughout its LBP service area. KonaTel
    also acknowledges the Commission's policies designed to address the
    ``the difficulties many Tribal consumers face in gaining access to
    basic services'' and the ``important role of universal service support
    in helping to provide telecommunications services to the residents of
    Tribal lands.'' \19\ As such, KonaTel commits to notify and seek
    approval, if required, from the relevant Tribal authorities in each of
    the states where it was--or may in the future be--granted LBP
    designation prior to providing service to Tribal residents.
    ---------------------------------------------------------------------------
        \19\ Id.  206.
    ---------------------------------------------------------------------------
        KonaTel's LBP designation is limited to 15 states. The Company
    commits that it will notify and, if required, seek approvals from the
    appropriate Tribal government or authority prior to offering Lifeline
    broadband services to residents of Tribal lands (in the case of
    Oklahoma, KonaTel commits to notifying the Public Utilities Division of
    the Oklahoma Corporation Commission). KonaTel submits that these
    efforts will ensure that its Lifeline broadband service will best serve
    the interests of Tribal subscribers as well as advance the
    communications priorities and goals of Tribal authorities in each
    jurisdiction it serves.
    V. NTTA's Petition Illustrates that Clarification from the Bureau
            Regarding the LBP Designation Process Is Warranted
        Despite the deficiencies in the Petition that make reconsideration
    or reversal of the LBP Designation Order unwarranted, NTTA's request
    does illustrate the potential for confusion regarding the appropriate
    process for LBP petitions. As such, KonaTel would support certain
    actions by the Bureau to provide clarity about LBP petition
    requirements, and the process for reviewing and approving such
    petitions on a prospective basis, including the following:

       Issuance of guidance to clarify that section 54.202(c) does
            not apply in the LBP context in light of the adoption of
            section 54.202(d);

       Removal of the ``Comment Deadline'' column from the LBP
            petitions ``tracker'' page on the Commission's website and
            adoption of a formal mechanism to clarify expectations
            regarding streamlined LBP applications modeled after the
            approach for streamlined processing that is used for
            international section 214 applications wherein the Commission
            issues a Public Notice noting the presumption of approval at
            any point within 60 days after submission of a petition that
            qualifies for streamlined processing without establishing a
            formal comment period; and

       Issuance of a public notice explaining that a streamlined
            LBP petition may be acted upon at any point within 60 days
            after submission, which would make clear that interested
            parties should submit comments on the petition as soon as
            possible.

        KonaTel submits that these clarifications would help manage public
    expectations of the LBP review and approval process, and would prevent
    uncertainty going forward.\20\
    ---------------------------------------------------------------------------
        \20\ The Public Notice requirement contemplated herein should apply
    on a prospective basis only as new petitions for LBP designation are
    filed.
    ---------------------------------------------------------------------------
    VI. Conclusion
        KonaTel respects the sovereignty of Tribal nations and understands
    the importance of ensuring that these entities have notice from service
    providers prior to commencement of service on sovereign Tribal lands.
    However, for the reasons set forth in this response, and in light of
    KonaTel's commitments to cooperate with the appropriate Tribal
    authorities prior to providing Lifeline broadband services in Tribal
    areas, the Petition should be denied.
                Respectfully submitted,
                                               John J. Heitmann
                                                    Avonne Bell
                                         Jennifer R. Wainwright
                                                   Kelley Drye & Warren LLP
                                              Counsel for KonaTel, Inc.
                                     ______

                                                       January 18, 2017
                                   Before the
                       FEDERAL COMMUNICATIONS COMMISSION
                                 Washington, DC

    In the Matter of                                )
                                                    )
    Telecommunications Carriers                     )   WC Docket No. 09-197
     Eligible for
    Universal Service Support                       )
                                                    )
    Petitions for Designation as a                  )   WC Docket No. 11-42
     Lifeline
    Broadband Provider                              )

          RESPONSE AND OPPOSITION OF STS MEDIA, INC. D/B/A FREEDOMPOP
                     TO THE PETITION FOR RECONSIDERATION OF
                 NATIONAL TRIBAL TELECOMMUNICATIONS ASSOCIATION
        STS Media, Inc. d/b/a FreedomPop (FreedomPop or the Company), by
    and through the undersigned counsel, respectfully submits this response
    and opposition to the National Tribal Telecommunications Association's
    (NTTA's) \1\ petition for reconsideration of the Wireline Competition
    Bureau's (WCB's or Bureau's) December 1, 2016 Order designating
    FreedomPop as a Lifeline Broadband Provider (LBP).\2\ FreedomPop
    acknowledges NTTA's concerns regarding notice requirements for LBP
    petitions and the Commission's long-standing policy of recognizing the
    sovereignty of Tribal governments and to involve Tribal governments in
    policy 1decisions that affect Tribal consumers. However, the Petition
    presents no evidence of a material error or omission that would justify
    reconsideration or reversal of the LBP Designation Order. Neither the
    Company's petition for designation as an LBP nor the Commission's
    review and approval of it violated the Commission's rules with regard
    to LBP eligible telecommunications carrier (ETC) designations.
    Additionally, the streamlined process for the docketed filing and
    review of LBP petitions established in the Lifeline Modernization Order
    is consistent with processes employed by the Commission for streamlined
    review in other contexts, and provided NTTA and its members adequate
    notice and opportunity to comment on FreedomPop's petition.
    Accordingly, the Petition should be denied.
    ---------------------------------------------------------------------------
        \1\ See Petition for Reconsideration of National Tribal
    Telecommunications Association, WC Docket Nos. 11-42, 09-197 (Jan. 3,
    2017) (Petition). Notably, NTTA does not represent any sovereign Tribal
    nation or other Tribal authority, but rather is a coalition of
    Tribally-owned communications companies. FreedomPop notes that not a
    single Tribal nation or organization that represents Tribal nations has
    objected to either the form or substance of FreedomPop's LBP petition
    or designation.
        \2\ See Telecommunications Carriers Eligible for Universal Service
    Support, Petitions for Designation as a Lifeline Broadband Provider, WC
    Docket Nos. 09-197, 11-42, Order, DA 16-1325 (WCB rel. Dec. 1, 2016)
    (LBP Designation Order). The LBP Designation Order was issued pursuant
    to the rule changes adopted in the Federal Communications Commission's
    (FCC's or Commission's) Lifeline Modernization Order. See Lifeline and
    Link Up Reform and Modernization et al., WC Docket No. 11-42 et al.,
    Third Report and Order, Further Report and Order, and Order on
    Reconsideration, FCC 16-38 (rel. Apr. 27, 2016) (Lifeline Modernization
    Order).
    ---------------------------------------------------------------------------
        Notwithstanding the foregoing, FreedomPop is both cognizant and
    respectful of the sovereignty of Tribal governments and it is committed
    to notifying, and, if required, seeking approval from the relevant
    Tribal authorities in each state where it received LBP designation
    prior to providing services to Tribal consumers in those states.
    Moreover, FreedomPop acknowledges that NTTA's Petition illustrates the
    potential for confusion about the LBP review and approval process. As
    discussed below, FreedomPop would support certain actions by the Bureau
    to clarify these processes and avoid uncertainty going forward.
    I. Standard of Review Under Section 1.429
        NTTA submits its Petition pursuant to section 1.429 of the
    Commission's rules, which allows an interested party to seek
    reconsideration of a final order in a rulemaking proceeding.\3\ The
    rule also states, however, that petitions for reconsideration ``may be
    dismissed or denied by the relevant bureau(s) or office(s) [if they] .
    . . [f]ail to identify any material error, omission, or reason
    warranting reconsideration.'' \4\ As set forth in this response, the
    Petition fails to present any evidence of a material error or omission
    that would warrant reconsideration of the LBP Designation Order, and
    therefore should be denied.
    ---------------------------------------------------------------------------
        \3\ See 47 C.F.R. Sec. 1.429.
        \4\ See 47 C.F.R. Sec. 1.429(l).
    ---------------------------------------------------------------------------
    II. Section 54.202(c) Does Not Apply to Petitions for LBP Designation
        NTTA's Petition relies primarily on the argument that FreedomPop
    and the Commission failed to comply with the procedural requirements of
    section 54.202(c) of the Commission's rules.\5\ Specifically, NTTA
    asserts that FreedomPop was obligated to provide a copy of its LBP
    petition to ``affected tribal government and tribal regulatory
    authorities at the time'' that FreedomPop submitted its petition to the
    Commission.\6\ NTTA bases its assertion on language in the Lifeline
    Modernization Order which states that ``[a]ll LBPs . . . must meet the
    requirements for designation as a Lifeline-only ETC established in
    section 214(e) of the [Communications] Act and section 54.201 and
    54.202 of the Commission's rules.'' \7\ However, a closer examination
    of section 54.202 and the Lifeline Modernization Order shows that
    subsection (c) does not apply to LBP petitions.
    ---------------------------------------------------------------------------
        \5\ See Petition at 4-8.
        \6\ See id. at 4. NTTA further claims that the Commission was
    required to ``notify tribal governments and tribal regulatory
    authorities of requests made by carriers to serve tribal lands.'' Id.
        \7\ See id.; see also Lifeline Modernization Order  284.
    ---------------------------------------------------------------------------
        Through the Lifeline Modernization Order, the Commission codified
    the requirements for requests for LBP designation through a new
    subsection (d) to section 54.202.\8\ This new subsection states that
    ``[a] common carrier seeking designation as a Lifeline Broadband
    Provider eligible telecommunications carrier must meet the requirements
    of paragraph (a) of this section.'' \9\ The adoption of separate
    requirements for LBP petitioners that expressly imposes only certain
    requirements of section 54.202(a) \10\ on LBP applicants demonstrates
    that the Commission did not intend for subsection (c) to apply to LBP
    designation requests. Therefore, FreedomPop was not required to provide
    copies of its petition to the relevant Tribal governments and Tribal
    regulatory authorities in the states where it was seeking LBP
    designation. FreedomPop respectfully notes that its petition for and
    grant of LBP designation invoked Tribal lands in only two states--
    Hawaii and Oklahoma--where Tribal lands are not governed by Tribal
    sovereigns.\11\
    ---------------------------------------------------------------------------
        \8\ See 47 C.F.R. Sec. 54.202(d). The Commission also adopted a new
    subsection (e) to section 54.202, which addresses requests for
    expansion of an LBP's approved service area. See 47 C.F.R.
    Sec. 54.202(e).
        \9\ See 47 C.F.R. Sec. 54.202(d) (emphasis added).
        \10\ See Lifeline Modernization Order  284, n.746 (noting that the
    requirement to submit a 5-year improvement plan as required under
    section 54.202(a) would not apply to LBPs).
        \11\ FreedomPop notes further that in these states, it will
    endeavor to notify and work cooperatively with Tribal interests,
    including securing appropriate authority prior to distributing Lifeline
    services on property owned or controlled by Tribal nations.
    ---------------------------------------------------------------------------
    III. The Process for Reviewing and Approving LBP Petitions Is
            Consistent with the Commission's Processes for Streamlined
            Reviews in Other Contexts and Gave NTTA Adequate Notice of and
            Opportunity to
            Comment on FreedomPop's Petition
        The Commission's process for issuing the LBP Designation Order is
    consistent with traditional Commission practice regarding streamlined
    reviews. Applications chosen for streamlined review are presumed to be
    deemed granted unless the Commission informs the applicant otherwise
    during the streamlined review period.\12\
    ---------------------------------------------------------------------------
        \12\ See Lifeline Modernization Order  278, 281; see also
    Worldcom, Inc. et al., v. FCC and U.S.A, No. 99-1395 (D.C. Cir. 1974)
    (noting that in the Interexchange Proceeding, the Commission adopted
    streamlined procedures whereby business service tariffs filed by AT&T
    were given streamlined processing whereby they were ``presumed lawful''
    upon filing and would become effective after a fourteen day notice
    period); Streamlining the International Section 214 Authorization
    Process and Tariff Requirements, IB Docket No. 98-118, Report and
    Order, FCC 96-79 (rel. Feb. 29, 1996) (International Section 214 Order)
    (explaining that international section 214 applications are deemed
    automatically granted upon acceptance for streamlined processing);
    Review of Commission Consideration of Applications under the Cable
    Landing License Act, IB Docket No. 00-106, Report and Order, FCC 01-332
    (rel. Dec. 14, 2001) (Cable Landing License Order).
    ---------------------------------------------------------------------------
        In its Petition, NTTA maintains the Commission's actions were
    improper and warrant reconsideration of the LBP designation to
    FreedomPop because ``the comment period on the applications had not
    ended prior to the Bureau's granting of'' LBP designation
    FreedomPop.\13\ NTTA fails, however, to acknowledge the specific
    parameters of what it means for a petition to be approved for
    streamlined processing. Commission precedent with streamlined
    procedures illustrates that applications that meet the specified
    streamlining criteria are expected to be noncontroversial and as such
    it is presumed that they will be deemed granted.\14\ In this case, the
    Commission's LBP Designation Order confirms this assessment by
    explaining ``there is no contradictory evidence available to us raising
    concern'' about FreedomPop's LBP petition or any other LBP petition
    granted.\15\
    ---------------------------------------------------------------------------
        \13\ See Petition at 8.
        \14\ See e.g., Cable Landing License Order  13 (explaining that
    only applications that do not pose a risk will be streamlined);
    Worldcom, Inc. et al., v. FCC and U.S.A.
        \15\ See LBP Designation Order  8.
    ---------------------------------------------------------------------------
        In the Lifeline Modernization Order, the Commission explained that
    a provider's petition for LBP designation will be subject to
    ``expedited review and will be deemed granted within 60 days of the
    submission of a completed filing'' unless the Commission notifies the
    petitioner the designation is not ``automatically effective.'' \16\ The
    Commission further noted that petitions that do not meet the
    streamlining criteria will not receive a presumption of approval after
    60 days but rather petitioners can expect action within six months of
    submission. It is clear from the language in the Lifeline Modernization
    Order that the Commission intended to adopt a streamlined procedure for
    LBP petitions consistent with its regulatory precedents \17\ on such
    matters.
    ---------------------------------------------------------------------------
        \16\ See Lifeline Modernization Order  278 (indicating petitions
    that do not qualify for streamlined processing will not be presumed to
    have LBP status approval) (emphasis added).
        \17\ See generally International Section 214 Order; Cable Landing
    License Order.
    ---------------------------------------------------------------------------
        As a result, the streamlined LBP petition process does not
    contemplate nor include a formal notice and comment procedure. The
    decision to set up a LBP tracker webpage was simply a courtesy done for
    informational purposes only, and the ``comment deadline'' indicated was
    neither an official act of the Commission nor the Bureau. It is well
    settled that informal postings or releases do not bind the Commission.
    For example, in MCI v. FCC, the court found that a Commission-issued
    press release was an unofficial, informal summary of agency action and
    could not be relied on as formal public notice.\18\ Comparably, here,
    the Bureau's LBP petitions webpage serves as a mere summary of LBP
    petition activity and cannot be relied on by NTTA or any other
    interested party as a legal mechanism establishing a formal comment
    cycle.
    ---------------------------------------------------------------------------
        \18\ See generally MCI v. FCC, 515 F.2d 385 (D.C. Cir. 1974).
    ---------------------------------------------------------------------------
        Though the Commission webpage does not constitute an official
    mechanism for comment, NTTA and its members had sufficient notice and
    opportunity to comment on FreedomPop's petition. FreedomPop's petition
    was electronically submitted and filed in a public docket designated to
    this proceeding. The requisite filing of the LBP designation petition
    in a pre-designated public docket afforded NTTA and its members
    adequate notice and opportunity to comment or oppose if they sought
    fit. Indeed, NTTA did in fact file comments with the Commission on
    November 17, 2016 regarding petitions filed for LBP designation at that
    time. Yet, NTTA raised no substantive issues about the petitions on
    file at that time--or at any time since about those or any other LBP
    petitions. Thus, any claim by NTTA that it lacked notice of
    FreedomPop's petition appears to be one of form over substance and does
    not warrant reconsideration of FreedomPop's LBP designation.
        Pursuant to the Lifeline Modernization Order, the Commission may
    approve a streamlined LBP petition at any point within 60 days of
    submission of a completed LBP petition.\19\ Therefore, the grant of
    FreedomPop's LBP designation does not warrant a reconsideration of the
    Commission's decision.
    ---------------------------------------------------------------------------
        \19\ See Lifeline Modernization Order  278 (stating that LBP
    petitions eligible for streamlined processing ``will be deemed granted
    within 60 days of the submission . . .'').
    ---------------------------------------------------------------------------
    IV. FreedomPop Will Notify, and If Required, Seek Approval from the
            Relevant Tribal Authorities Prior to Providing Lifeline Service
            on
            Tribal Lands
        While FreedomPop respectfully opposes NTTA's Petition, it fully
    supports Commission policy recognizing the sovereignty of Tribal
    nations and similarly respects the sovereignty of all relevant Tribal
    governments and authorities throughout its LBP service area. FreedomPop
    also acknowledges the Commission's policies designed to address the
    ``the difficulties many Tribal consumers face in gaining access to
    basic services'' and the ``important role of universal service support
    in helping to provide telecommunications services to the residents of
    Tribal lands.'' \20\ As such, FreedomPop commits to notify and seek
    approval, if required, from the relevant Tribal authorities in each of
    the states where it was--or may in the future be--granted LBP
    designation prior to providing service to Tribal residents.
    ---------------------------------------------------------------------------
        \20\ Id.  206.
    ---------------------------------------------------------------------------
        As noted above, FreedomPop's LBP petition requested authority to
    serve Tribal subscribers only in Hawaii and Oklahoma. Neither of these
    states have a Tribal sovereign authority that regulates Lifeline
    services offered to residents of either Hawaiian Home Lands or former
    reservations in Oklahoma. Nevertheless, FreedomPop commits to notifying
    both the Department of Hawaiian Home Lands in Hawaii and the Public
    Utilities Division of the Oklahoma Corporation Commission to ensure
    that its provision of Lifeline broadband service offerings to eligible
    residents of Tribal lands in these states is well known and serves the
    interests intended to be served through the enhanced Lifeline program
    for eligible Tribal residents in these two states.
    V. NTTA's Petition Illustrates that Clarification from the Bureau
            Regarding the LBP Designation Process Is Warranted
        Despite the deficiencies in the Petition that make reconsideration
    or reversal of the LBP Designation Order unwarranted, NTTA's request
    does illustrate the potential for confusion regarding the appropriate
    process for LBP petitions. As such, FreedomPop would support certain
    actions by the Bureau to provide clarity about LBP petition
    requirements, and the process for reviewing and approving such
    petitions on a prospective basis, including the following:

       Issuance of guidance to clarify that section 54.202(c) does
            not apply in the LBP context in light of the adoption of
            section 54.202(d);

       Removal of the ``Comment Deadline'' column from the LBP
            petitions ``tracker'' page on the Commission's website and
            adoption of a formal mechanism to clarify expectations
            regarding streamlined LBP applications modeled after the
            approach for streamlined processing that is used for
            international section 214 applications wherein the Commission
            issues a Public Notice noting the presumption of approval at
            any point within 60 days after submission of a petition that
            qualifies for streamlined processing without establishing a
            formal comment period; and

       Issuance of a public notice explaining that a streamlined
            LBP petition may be acted upon at any point within 60 days
            after submission, which would make clear that interested
            parties should submit comments on the petition as soon as
            possible.

        FreedomPop submits that these clarifications would help manage
    public expectations of the LBP review and approval process, and would
    prevent uncertainty going forward.\21\
    ---------------------------------------------------------------------------
        \21\ The Public Notice requirement contemplated herein should apply
    on a prospective basis only as new petitions for LBP designation are
    filed.
    ---------------------------------------------------------------------------
    VI. Conclusion
        FreedomPop respects the sovereignty of Tribal nations and
    understands the importance of ensuring that these entities have notice
    from service providers prior to commencement of service on sovereign
    Tribal lands. However, for the reasons set forth in this response, and
    in light of FreedomPop's commitments to cooperate with the Department
    of Hawaiian Home Lands in Hawaii and the Public Utilities Division of
    the Oklahoma Corporation Commission prior to providing Lifeline
    broadband services in Tribal areas, the Petition should be denied.
                Respectfully submitted,
                                               John J. Heitmann
                                                    Avonne Bell
                                         Jennifer R. Wainwright
                                                   Kelley Drye & Warren LLP
                           Counsel for STS Media, Inc. d/b/a FreedomPop
                                     ______

     [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                      ______

    Response to Written Questions Submitted by Hon. Catherine Cortez Masto
                                to Hon. Ajit Pai
        Question 1. As we discussed during the hearing, I am concerned
    about barriers to the siting of telecommunications equipment on Federal
    and tribal lands, like under the Bureau of Land Management. Can you
    please explain in writing specifically what we can do to address these
    challenges?
        Answer. As part of the recently formed Broadband Deployment
    Advisory Committee, one of the initial working groups announced this
    week will tackle the issue of deployment on Federal and tribal lands.
    In particular, the Streamlining Federal Siting working group will
    examine challenges related to siting on these lands and will provide
    recommendations on how to reduce or eliminate these barriers. In
    addition to members from the private sector and state and local
    governments, I plan to invite Federal representatives from key
    agencies, such as the Department of Interior, to participate.

        Question 2. And during our interaction, you said ``absolutely'' in
    response to my request that you commit to establishing an interagency
    working group of Federal partners to tackle these siting challenges.
    Please confirm this commitment and let me know what I can do to help
    expedite this effort.
        Answer. I am committed to working with Federal partners to tackle
    siting issues on Federal lands in order to facilitate infrastructure
    deployment.

        Question 3. I am aware of an Interagency Broadband Working Group
    that currently exists, but that does not appear to have solved some
    hold up in get infrastructure sited in Nevada. Please inform me what
    you can commit to do to solve this challenge through a new or existing
    effort across Federal agencies, including the U.S. Department of
    Interior, the U.S. Army Corps of Engineers, and the U.S. General
    Services Administration.
        Answer. The FCC will continue to work with other Federal agencies
    to tackle infrastructure deployment issues such as siting on Federal
    and Tribal lands. The BDAC will be a forum for formulating an action
    plan to solve these issues.

        Question 4. During the hearing I raised concerns regarding the
    proper staffing of the FCC and you said you needed to check and respond
    after the hearing, so here are my questions again for your detailed
    response:
        From your perspective, what impacts have you seen, or felt, from
    the White House's misguided blanket hiring freeze?
        Answer. So far, the impact of the hiring freeze has been minimal.
    During this 90-day pause in hiring, we are prioritizing agency staffing
    needs in consideration of long-term workforce plans. We have been able
    to temporarily reallocate internal resources to meet mission-critical
    needs. In the event matters involving national security or public
    safety responsibilities require us to hire from outside the agency
    before the freeze ends, we will seek an exemption as provided under the
    executive order.

        Question 5. How many openings would you estimate you have to fill
    at the Commission currently?
        Answer. We are currently in the process of figuring out how many
    openings we will need to fill once the hiring freeze is over. I do not
    have an estimate of that number at this time.

        Question 6. Can you assure me that merger reviews or legal
    challenges aren't being impacted by the need to hire staff?
        Answer. Yes.

        Question 7. Can you assure me that the hiring freeze will not have
    any negative impact on the conclusion and transition of the incentive
    auction?
        Answer. Yes.

        Question 8. And are there positions that are vacant and need to be
    filled at the FCC Office of Inspector General?
        Answer. The Office of Inspector General currently has six
    vacancies. The hiring of one GS-15 Program Analyst, a reemployed
    annuitant, has been delayed due to the freeze. While initially delayed
    by the freeze, OIG is in the process of hiring a writer-editor, two
    Auditors and two Management and Program Analysts. The freeze will
    likely be over before these recruitment actions are finalized.

        Question 9. I have reviewed the Equal Employment Opportunity
    Commission's (EEOC) 2016 report on ``Diversity in High Tech,'' and it
    contains some frustrating and concerning observations regarding
    minority and female employment and leadership representation.
        Namely:

       ``Compared to overall private industry, the high tech sector
            employed a smaller share of African Americans (14.4 percent to
            7.4 percent), Hispanics (13.9 percent to 8 percent), and women
            (48 percent to 36 percent).''

       ``Of those in the Executives category in high tech, about 80
            percent are men and 20 percent are women. Within the overall
            private sector, 71 percent of Executive positions are men and
            about 29 percent are women.''

       2014 data of the labor force participation rate at select
            leading ``Silicon Valley tech firms,'' with similarly upsetting
            trends: ``Among Executives, 1.6 percent were Hispanic and less
            than 1 percent were African American.''

        As Chairman, and an appointee seeking reconfirmation from the
    Senate, what is your plan to establish a more inviting sector to
    diversity of staff and leadership?
        Answer. While the FCC has equal employment opportunity rules that
    apply to broadcasters and cable operators, we do not have the statutory
    authority to impose such rules on Silicon Valley tech firms. I do,
    however, believe that the FCC should seek to lead by example in the
    area of diversity. I am proud, for example, to be the first Asian-
    American to lead the Commission. And I would also note that the
    majority of Bureau Chiefs at the FCC are currently women.
                                     ______

       Response to Written Questions Submitted by Hon. Maria Cantwell to
                             Hon. Mignon L. Clyburn
        Question 1. Smart technologies will enable cities to improve
    community livability, services, communication, safety, mobility, and
    resilience to natural and manmade disasters; reduce costs, traffic
    congestion, air pollution, energy use, and carbon emissions; and
    promote economic growth and opportunities for communities of all sizes.
        Smart City market estimates show rapid growth in coming years, and
    the number of Internet-connected devices in Smart Cities alone is
    expected to grow from 1.2 million in 2015 to 3.3 billion in 2018.
    Mobile broadband is the engine for the proliferation of smart cities.
        This aspect of our Internet economy is expected to grow from almost
    $2 billion in 2015, to $147.5 billion by 2020.
        The FCC is the agency charged with making more spectrum available
    for mobile broadband.
        Given this rapid growth in Smart Cities technology, what is the
    Commission doing now to usher in next-generation networks to meet
    anticipated spectrum demands?
        Answer. Thank you for the question, Senator. The Commission has
    been working diligently to free up much needed spectrum to meet the
    increasing demand for mobile broadband connectivity. The Commission's
    overall strategy has been to make spectrum available in low (600 MHz),
    mid (3.5 GHz), and high frequency bands (above 24 GHz) with flexible
    rules; continuing to remove barriers to infrastructure siting; and
    quickly approving requests to test new technologies in these bands.

        Question 2. Does the Commission need additional statutory authority
    to meet the demand for spectrum?
        Answer. While the Commission has clear statutory authority to
    reallocate and repurpose spectrum, passage of legislation such as the
    MOBILE NOW Act, could better facilitate our work in making more
    spectrum available for commercial use and breaking down barriers to
    deployment.

        Question 3. What is the Commission's role in ensuring that Smart
    City devices have adequate protections against cybersecurity breaches?
    If the Commission has no role, which part of the Federal Government has
    responsibility for this?
        Answer. I believe that the Commission has a fundamental
    responsibility to promote security and reliability in communications
    networks. This has become even more important in an increasingly IP
    environment. Communications providers operate critical infrastructure
    upon which individuals, communities and the Nation depends, and the
    Commission should ensure that providers protect that service
    appropriately. Under the prior Administration, the Commission's policy
    was to encourage industry to take the lead in developing and
    implementing effective, industry-driven security risk management
    practices and policies. Earlier this year, however, Chairman Pai
    rescinded two cybersecurity items released by the prior Administration,
    and pulled a third item from circulation, so it is unclear what role
    the Commission will play going forward.

        Question 4. At a time when the need for funds to support broadband
    deployment and adoption are at their highest, the universal service
    contribution factor is approaching its highest levels due to the
    declines in the interstate revenue that serves as its funding base.
    There is wide consensus that the current contribution methodology model
    is unsustainable.
        The demand for more money for rural broadband is causing some
    industry stakeholders to suggest reducing the amount of USF committed
    to support broadband service for our Nation's schools, libraries and
    low income consumers.
        We should not be ``robbing Peter to pay Paul.'' Instead as good
    stewards of the universal service fund and the mandate for universal
    service found in the Telecommunications Act, we should be figuring out
    the best way to create a sustainable universal service ecosystem. Do
    you agree that the current contribution methodology framework is
    unsustainable?
        Answer. Thank you for the question, Senator Cantwell. That the
    current contribution factor is 17 percent should underscore that the
    current approach is unsustainable. In fact, the current system is
    disproportionately burdening our Nation's seniors: the ones who
    subscribe to legacy telecommunications at an above-average rate.

        Question 5. Do you advocate lowering the amount of USF committed to
    the E-Rate and Lifeline/Link up programs and shifting those monies to
    support the USF mechanisms that support rural broadband?
        Answer. No.

        Question 6. Over the years, the FCC has reviewed several different
    proposals to reform contribution methodology to shore up the
    contributions base.
        Among the proposals made to reform contribution methodology are:

            Numbers Plan-all communications service providers with working,
            ``in use'' telephone numbers (or equivalents) would be assessed
            a flat, per number fee;

            Connections Plan -all connections to an interstate public or
            private network would be assessed a flat, per number fee;

            Numbers/Hybrid Plan -would assess residential users a fee based
            on working numbers and business users a fee based on working
            connections; and

            Modified Revenue-expanding the contribution base to maintain
            current system, require broadband providers and other
            communications service providers to contribute.

        Has the Commission done any study of how any of the previously
    proposed contribution methodology reforms would impact the contribution
    factor or the universal service fund? If so what did those studies
    reveal?
        Answer. While the Commission staff has conducted internal analysis
    of these proposals, I fear that disclosing this analysis is the
    Chairman's prerogative. Thus, I must respectfully defer to Chairman Pai
    on what that analysis reveals.

        Question 7. Does the Commission have plans to reform contribution
    methodology? If so when? If not, why not?
        Answer. I have dutifully led and served on the Joint Board for
    Universal Service for the past several years, under the leadership of
    Commissioner Rosenworcel, and will continue to do so under Commissioner
    O'Rielly. I look forward to the release of a recommendation for reform
    under the current chairmanship and I stand ready to engage on universal
    service contribution reform at the Commission, which I believe is long
    overdue.
                                     ______

        Response to Written Question Submitted by Hon. Edward Markey to
                             Hon. Mignon L. Clyburn
        Question. While libraries provide communities with crucial access
    to free internet, less than 3 percent of public libraries offer 1
    Gigabit/second connection speed, according to research conducted by the
    American Library Association. How can the E-Rate Modernization Orders
    approved in 2014 help close this divide and ensure that our
    constituents can enjoy high-speed broadband in our libraries?
        Answer. The 2014 E-Rate Modernization Orders took significant steps
    to modernize and streamline the E-rate program with a focus on
    supporting Wi-Fi networks and robust broadband connectivity for all
    schools and libraries. It also addressed the connectivity gap facing
    many schools and libraries by expanding options for purchasing
    affordable broadband and increasing the E-rate funding cap to fully
    meet applicants' needs.
        Continued support for those Orders is critical to ensuring
    libraries have the connectivity they need. Implementation of those
    Orders brought about a 61 percent decline in schools not connected to
    fiber, and saw the cost per-megabit-per-second decrease from $22 in
    2013 to $7 in 2016. This is in large part due to additional
    construction flexibility afforded to schools and libraries, including
    putting leased lit and dark fiber on equal footing, permitting
    construction and operation of self-provisioned networks, and making
    additional E-rate funding available when a state or Tribe puts up their
    own funding for construction as well.
                                     ______

                                   Attachment
                                   American Library Association
                                                         Washington, DC
        High Speed Library Broadband Is Critical National Infrastructure
        Objective: Bring the benefits of high-speed broadband service to
    every rural and underserved community in the Nation by recognizing and
    funding America's libraries as critical national infrastructure.
    Leveraging libraries will assure that every community, entrepreneur,
    small business, family, veteran or student has the opportunity to
    meaningfully contribute to our digital economy.
        Perspective: There are 25 percent more public libraries than
    Starbucks in the United States (16,559 v. 13,172). Libraries are
    visited more than 1.4 billion times each year. That's more than 3.8
    million people per day or 2,663 per minute. Libraries are indispensable
    to the personal and economic welfare of users of all ages and the
    health of America's economy, often providing the only means of free
    broadband connectivity for many communities and small internet-based
    businesses. Consider:

       100 percent of libraries offer free access to the internet;

       97 percent help patrons complete government forms online;

       95 percent assist kids with their homework and offer summer
            reading programs;

       90 percent train children and adults alike in computer
            literacy and other online skills;

       77 percent provide online health resources;

       73 percent aid patrons with job applications and
            interviewing skills;

       68 percent help patrons use databases to find job openings;

       48 percent provide entrepreneurs and small business owners
            with online resources;

       36 percent offer dedicated work space for mobile workers;
            and

       Hundreds of libraries even make 3D printers available to
            their patrons!

        But . . . far too few Americans, and a tiny number of the millions
    in rural communities, have the access to high speed broadband service
    that they and the Nation need to thrive in our digital economy:

       Less than 3 percent of public libraries offer 1 Gigabit/
            second connection speed: the national goal;

       A fraction of 1 percent of libraries offer ``1 Gig'' service
            in rural or underserved areas;

       Just 4 percent of rural libraries have a connection speed
            over 100Mbps (90 percent less than the goal);

       Rural library connection speeds average just 25 percent of
            those in urban libraries;

       Over 40 percent of rural libraries have no market option to
            improve their broadband speeds; and

       The rural cost of deploying high speed broadband can be 200-
            300 percent of urban area costs.

        Priority: The future belongs to those with access to high-speed
    broadband. Congress must fully enable the millions of Americans in
    rural and underserved communities to build their futures, and the
    nation's, by strategically investing directly in both dramatically
    expanded library high speed broadband service and library facilities as
    critical national infrastructure.
                                     ______

        Response to Written Questions Submitted by Hon. Cory Booker to
                             Hon. Mignon L. Clyburn
        Question 1. E-Rate is an important Universal Service Fund (USF)
    program that provides funding for schools and libraries to connect to
    high-speed Internet. I cannot overstate the value of broadband access
    for these learning centers. To remain competitive in the 21st century,
    our children must learn how to interact with information in the digital
    world.
        In 2015, my home state of New Jersey received $87 million for E-
    Rate, which it used to help connect 161 libraries to high-speed
    Internet.\3\ Do you share my disappointment that the Modernization
    Progress Report was revoked? What is the importance of this report for
    ensuring that E-Rate can help schools and libraries prepare our
    children and communities for the future?
    ---------------------------------------------------------------------------
        \3\ Staff conversation with New Jersey State Library.
    ---------------------------------------------------------------------------
        Answer. Thank you for the question, Senator. I share your concern
    that the E-Rate Modernization Progress Report was revoked. In my years
    as a Commissioner, I have never seen a staff report revoked, especially
    where there is a lack of clarity on whether an office has delegated
    authority to do so.
        This report is important to highlight the successes of the 2014 E-
    Rate Modernization Orders, particularly as they related to improving
    the efficiency of Federal E-Rate funding. Implementation of those
    Orders brought a 61 percent decline in schools not connected to fiber,
    and saw the cost per-megabit-per-second decrease from $22 in 2013 to $7
    in 2016. This is in large part due to additional construction
    flexibility afforded to schools and libraries, including putting leased
    lit and dark fiber on equal footing, permitting construction and
    operation of self-provisioned networks, and making additional E-rate
    funding available when a state or Tribe puts up their own funding for
    construction as well.

        Question 2. I understand that on July 28, 2016, a group of managed
    care providers petitioned the FCC seeking declaratory ruling and/or
    clarification of the TCPA to reconcile the regulation of a health plan
    member's telephone number under the TCPA with the regulation of the
    same use under the Health Insurance Portability and Accountability Act
    (``HIPAA'').
        The Petitioners argue that a clarification is necessary to
    harmonize the TCPA, HIPAA, and prior Commission rulings to protect
    member health care communications. The calls covered by these
    clarifications fall within categories recognized by the Department of
    Health and Human Services as covered by HIPAA to enhance the
    individual's access to quality health care. HIPAA, as you know,
    regulates the privacy practices of covered entities and expressly
    encourages and permits such calls to be made. Congress passed HIPAA in
    1996 and the HITECH Act in 2009, well after the TCPA, which was enacted
    in 1991. HIPAA and the HITECH Act, therefore, represent the more recent
    intent of Congress in regulating these specific types of
    communications.
        What is the Commission's view on protecting non-telemarketing calls
    allowed under HIPAA in light of their unique value to and acceptance by
    consumers?
        Answer. Thank you for the question, Senator. I agree that non-
    telemarketing calls made for the purpose of improving healthcare
    outcomes have unique consumer value. This view was reiterated by data
    shared with my office that found such communication can reduce hospital
    readmission rates and increase the number of individuals receiving
    preventive health screenings.
        In the Commission's 2015 Declaratory Order, which I supported, the
    agency stated that ``that provision of a phone number to a healthcare
    provider constitutes prior express consent for healthcare calls subject
    to HIPAA by a HIPAA-covered entity and business associates acting on
    its behalf, as defined by HIPAA, if the covered entities and business
    associates are making calls within the scope of the consent given, and
    absent instructions to the contrary.'' Some stakeholders have suggested
    that further clarification is needed. Should such a clarification be
    issued by the Commission, it is critical that consumers continue to be
    empowered with the tools to easily opt out, should they choose to no
    longer receive these type of calls.

        Question 3. What is the Commission's view on acting to protect
    these calls expeditiously so that beneficiaries' access to health care
    is not jeopardized, rather than waiting for a larger ``omnibus'' TCPA
    ruling that could take much longer?
        Answer. There is not currently an Order before me for
    consideration. Should the Chairman circulate such an Order, I would
    carefully review it to ensure it balances the value of giving consumers
    access to timely health information while ensuring they are not
    overburdened with unwanted calls or texts.
                                     ______

      Response to Written Questions Submitted by Hon. Tammy Duckworth to
                             Hon. Mignon L. Clyburn
        Question 1. As Commissioner Clyburn noted in her testimony, I
    authored the Video Visitation in Prisons Act last Congress to increase
    oversight of telecommunications in prisons and permit prisoners who
    demonstrate good behavior to stay in touch with their family through
    video conferencing. Because the vast majority of prisoners will
    eventually be released, it is not a matter of if we need to prepare
    these individuals to rejoin society, but rather, a matter of how well
    we do it. And the FCC has a critical role to play in this important
    national challenge. Across the country, jails and prisons have begun
    implementing a new way for families and friends to stay in touch with
    their incarcerated loved ones: video conferencing.
        In Illinois, remote video conferences have provided the only way
    for some families to stay in touch, one example is the Menard
    Correctional Center, which is more than 300 miles from Chicago, where
    many of its prisoners come from and still have family who live there.
        Studies show that prisoners who remain in close contact with family
    members achieve better post-release outcomes and lower rates of
    recidivism. Yet, too often, prisoners and their families struggle to
    maintain regular contact, whether through in-person visits, calls or
    ``video visitation.''
        Would you agree that the prison video visitation service industry
    remains a largely unregulated area of commerce, which has led to low-
    quality service paired with exorbitant, cost-prohibitive fees that
    prisoners and their families cannot afford?
        Answer. Yes.

        Question 2. As technology changes and more prisons start using
    video conferencing, what are some of your recommendations for the
    future of this technology?
        Answer. My ultimate recommendation is that the availability of
    video visitation be a complement, not a substitute, for in-person
    visitation. We have seen instances in which a facility bans in-person
    visitation once video visitation becomes available. This is wholly
    unacceptable.
        The FCC should address this failed market as well, and has the
    authority to do so. However, the additional clarity provided by your
    bill would be welcomed as the Commission works to ensure families can
    communicate with incarcerated loved ones at just and reasonable rates.

        Question 3. Why is it important that video visitation supplement--
    not supplant--in-person visitation?
        Answer. It is important for two reasons. First, the quality of in-
    person visitation far surpasses video visitation: ask any child who has
    been denied the opportunity to get a hug from their incarcerated
    mother. Second, some institutions use video visitation as an additional
    revenue stream, and banning in-person visitation enhances that revenue
    stream at increased cost to an inmate's loved ones.
                                     ______

    Response to Written Questions Submitted by Hon. Catherine Cortez Masto
                           to Hon. Mignon L. Clyburn
        Question 1. While I asked this question of Commissioner O'Rielly at
    the hearing, I would like to receive you thoughts in writing as well.
    Given that the FCC's ``Cybersecurity and Communications Reliability
    Division (CCR) works with the communications industry to develop and
    implement improvements that help ensure the reliability, redundancy and
    security of the Nation's communications infrastructure,'' what else
    specifically can the FCC be doing to aid in the concern and challenge
    of cyber security and identify theft?
        Answer. Thank you for the question, Senator. I believe that the
    Commission has a fundamental responsibility to promote security and
    reliability in communications networks. This has become even more
    important in an increasingly IP environment. Communications providers
    operate critical infrastructure upon which individuals, communities and
    the Nation depends, and the Commission should ensure that providers
    protect that service appropriately. Under the prior Administration, the
    Commission's policy was to encourage industry to take the lead in
    developing and implementing effective, industry-driven security risk
    management practices and policies. Earlier this year, however, Chairman
    Pai rescinded two cybersecurity items released by the prior
    Administration, and pulled a third item from circulation. In order to
    do our part to ensure the reliability, redundancy and security of the
    Nation's communications infrastructure, I would support reinstatement
    of the cybersecurity items jettisoned under this Administration.

        Question 2. I have reviewed the Equal Employment Opportunity
    Commission's (EEOC) 2016 report on ``Diversity in High Tech,'' and it
    contains some frustrating and concerning observations regarding
    minority and female employment and leadership representation.
        Namely:

       ``Compared to overall private industry, the high tech sector
            employed a smaller share of African Americans (14.4 percent to
            7.4 percent), Hispanics (13.9 percent to 8 percent), and women
            (48 percent to 36 percent).''

       ``Of those in the Executives category in high tech, about 80
            percent are men and 20 percent are women. Within the overall
            private sector, 71 percent of Executive positions are men and
            about 29 percent are women.''

       2014 data of the labor force participation rate at select
            leading ``Silicon Valley tech firms,'' with similarly upsetting
            trends: ``Among Executives, 1.6 percent were Hispanic and less
            than 1 percent were African American. ``

        From your perspective, what can we do to make this a more inviting
    sector to diversity of staff and leadership?
        Answer. Thank you for the question, Senator. I, too, am troubled by
    the lack of diversity in the technology sector. This concern was
    reflected in our office's recently released #Solutions2020 Call to
    Action Plan. There are many ways to address this issue at different
    points in the pipeline, from introducing our elementary school aged
    students to STEM, to ensuring our middle and high schoolers have
    opportunities to intern and be exposed to technology careers, to making
    certain that our graduating college seniors have the opportunity to
    even interview for technology positions.
        It is important that each student is exposed to robust science,
    technology, engineering and math (STEM) curricula at an early age and
    throughout their educational careers. To get there of course, we need
    to make sure there is access to broadband at school and in the home.
    The FCC's E-rate program, for example, has been key to ensuring that
    all schools in our Nation have access to fast broadband to unleash
    world-class education. We recently reformed E-rate so that the program
    not only supports robust broadband connectivity to the school but Wi-Fi
    within the school buildings. I was pleased to support these reforms and
    look forward to seeing the reverberating benefits to our children and
    society. I was also pleased to support updating the Commission's
    Lifeline program. For too many in our society, the price of broadband
    service is out of reach. This is why the FCC's Lifeline program and
    similar public-private partnerships are key to ensuring that broadband
    including mobile broadband is both accessible and affordable for all
    Americans.
        Students also need to be exposed to the jobs and opportunities that
    could be afforded with a STEM degree. Private-public and public-public
    partnerships can be instrumental in that regard. For example,
    technology companies could partner with local governments,
    organizations and schools to provide free classes and learning
    opportunities to interested community members and students. Moreover,
    local governments and community organizations could work together with
    broadband providers to provide recycled or refurbished smartphone
    devices and tablets. Federal agencies and Congress can also implement
    internship and mentorship opportunities to introduce young people to
    opportunities in the technology sector.
        In addition to ensuring that there is a strong pipeline of diverse
    candidates for technology positions, we must also promote opportunities
    for those who are already in the industry or trying to enter it. I have
    read many articles and studies on the affirmative steps some technology
    companies are doing in order to address the lack of diversity in the
    industry and I applaud their efforts. But of course, we can and should
    do more, as the statistics glaringly attest.
                                     ______

       Response to Written Questions Submitted by Hon. Maria Cantwell to
                             Hon. Michael O'Rielly
        Question 1. At a time when the need for funds to support broadband
    deployment and adoption are at their highest, the universal service
    contribution factor is approaching its highest levels due to the
    declines in the interstate revenue that serves as its funding base.
    There is wide consensus that the current contribution methodology model
    is unsustainable.
        The demand for more money for rural broadband is causing some
    industry stakeholders suggest reducing the amount of USF committed to
    support broadband service for our Nation's schools, libraries and low
    income consumers.
        We should not be ``robbing Peter to pay Paul.'' Instead as good
    stewards of the universal service fund and the mandate for universal
    service found in the Telecommunications Act, we should be figuring out
    the best way to create a sustainable universal service ecosystem.
        Do you agree that the current contribution methodology framework is
    unsustainable?
        Answer. I would like to make it clear that, as the newly appointed
    chair of the Federal State Joint Board on Universal Service, I am
    speaking only for myself in answering this question. I agree that the
    contribution methodology framework is unsustainable, as currently
    structured, and have said so publicly many times.

        Question 2. Do you advocate lowering the amount of USF committed to
    the E-Rate and Lifeline/Link up programs and shifting those monies to
    support the USF mechanisms that support rural broadband?
        Answer. I believe that in order to properly assess how to allocate
    spending among the four USF programs the Commission should determine
    the appropriate sum to take from telecommunications consumers,
    recognizing that doing so raises the price for service and leads to
    lower adoption rates. Accordingly, I strongly support having firm
    budgetary caps on all USF spending.
        To be clear, I did not support expanding the E-Rate budget and
    spending in the December 2014 order. I argued that such expenditures
    would come at the cost of other programs or lead to a ballooning of
    overall USF spending, which seems to have come to fruition. Likewise, I
    raised objections to and opposed the unwillingness of a majority of my
    colleagues to adopt a proper budget for the Lifeline program when it
    was last considered by the Commission in March 2016. I support efforts
    to correct these decisions and to make other improvements.

        Question 3. Over the years, the FCC has reviewed several different
    proposals to reform contribution methodology to shore up the
    contributions base.
        Among the proposals made to reform contribution methodology are:

            Numbers Plan-all communications service providers with working,
            ``in use'' telephone numbers (or equivalents) would be assessed
            a flat, per number fee;

            Connections Plan -all connections to an interstate public or
            private network would be assessed a flat, per number fee;

            Numbers/Hybrid Plan -would assess residential users a fee based
            on working numbers and business users a fee based on working
            connections; and

            Modified Revenue-expanding the contribution base to maintain
            current system, require broadband providers and other
            communications service providers to contribute.

        Has the Commission done any study of how any of the previously
    proposed contribution methodology reforms would impact the contribution
    factor or the universal service fund? If so what did those studies
    reveal?
        Answer. My understanding is that Commission staff previously
    studied various reform options as part of their work for the previous
    USF Joint Board. I was not on the USF Joint Board at that time, so I
    have asked Commission staff to brief me on their analyses in the near
    future.

        Question 4. Does the Commission have plans to reform contribution
    methodology? If so when? If not, why not?
        Answer. I cannot speak to the Commission's ultimate plans, but, as
    the new chair of the USF Joint Board, it is my goal to address our
    overall USF spending and the contribution methodology in order to
    provide a recommendation to the Commission for its consideration as
    soon as feasible. I do not have a firm timeline to provide at this
    moment, as I need to gather more information about potential reforms
    and consult with FCC staff and the USF Joint Board, but I plan to work
    as expeditiously as possible on the matter.
                                     ______

        Response to Written Questions Submitted by Hon. Cory Booker to
                             Hon. Michael O'Rielly
        Question 1. I understand that on July 28, 2016, a group of managed
    care providers petitioned the FCC seeking declaratory ruling and/or
    clarification of the TCPA to reconcile the regulation of a health plan
    member's telephone number under the TCPA with the regulation of the
    same use under the Health Insurance Portability and Accountability Act
    (``HIPAA'').
        The Petitioners argue that a clarification is necessary to
    harmonize the TCPA, HIPAA, and prior Commission rulings to protect
    member health care communications. The calls covered by these
    clarifications fall within categories recognized by the Department of
    Health and Human Services as covered by HIPAA to enhance the
    individual's access to quality health care. HIPAA, as you know,
    regulates the privacy practices of covered entities and expressly
    encourages and permits such calls to be made. Congress passed HIPAA in
    1996 and the HITECH Act in 2009, well after the TCPA, which was enacted
    in 1991. HIPAA and the HITECH Act, therefore, represent the more recent
    intent of Congress in regulating these specific types of
    communications.
        What is the Commission's view on protecting non-telemarketing calls
    allowed under HIPAA in light of their unique value to and acceptance by
    consumers?
        Answer. Speaking only for myself, I am sympathetic to the
    unfortunate quandary faced by health care companies that must comply
    with competing statutes while also trying to provide the best overall
    care to patients. Unfortunately, the Commission has pursued an
    extensive (and misguided) reading of TCPA that has harmed the ability
    of health care companies--and many other legitimate industries--to
    serve their customers. I would be supportive of an overall effort to
    exempt these types of calls from TCPA.

        Question 2. What is the Commission's view on acting to protect
    these calls expeditiously so that beneficiaries' access to health care
    is not jeopardized, rather than waiting for a larger ``omnibus'' TCPA
    ruling that could take much longer?
        Answer. I would be supportive of efforts to move smaller items in
    quick order. The FCC Chairman, however, is in the best position to
    answer questions on the timing of moving such protections and whether
    to do so individually or collectively.
                                     ______

         Response to Written Questions Submitted by Hon. Tom Udall to
                             Hon. Michael O'Rielly
        Question 1. At a September 15, 2016 hearing of this Committee, you
    pledged to me that you would work with then Chairman Tom Wheeler to
    take action by the end of the year to help address the digital divide
    on tribal lands. The New Mexico Congressional delegation wrote you on
    January 9, 2017 to urge swift action on a tribal broadband item
    circulated by Chairman Wheeler on December 15, 2016 that has not been
    acted on. Why have you not responded to our letter?
        Answer. If there was any miscommunication or if I erred in not
    personally responding to the New Mexico Congressional delegation, I
    offer my sincere apology. I have great reverence for the Congress and
    believe it is my obligation to answer any specific issues, questions or
    concerns you have to the best of my ability. In this instance, it
    appears that similar letters were sent to the Chairman and
    Commissioners, in which case it is common practice to allow the
    Chairman to respond. To the extent that you were seeking my independent
    views, I did not realize this.
        Substantively, I remain committed to working on bringing broadband
    access to all Americans that wish to have it, including those on tribal
    lands. Former Chairman Wheeler's draft item raised a host of critical
    issues and problems that were not sufficiently addressed prior to his
    departure. As you note, Chairman Pai has since circulated his own
    proposal for the Commission's consideration.

        Question 2. FCC Chairman Pai wrote me on March 7 that he circulated
    an order that ``would assist carriers serving Tribal lands in
    deploying, upgrading, and maintaining modem high-speed networks.'' The
    order would also ``allow carriers serving Tribal lands a greater
    ability to recover operating expenses, thus improving the financial
    viability of operating a broadband network serving Tribal lands.'' Will
    you support this order?
        Answer. I am in the process of reviewing the text of the item and
    have sought to get a full and accurate picture of the effect that the
    policies will have on potential beneficiaries in order to render the
    best decision possible. This process has raised a number of further
    questions regarding expenses incurred by some of the applicable
    companies. In order to be good stewards of the funding provided by
    American consumers, I want these questions answered before casting my
    vote. On a more fundamental note, I am not sure that exempting certain
    companies providing service on tribal lands from our operating expense
    limits is the best way to increase broadband availability to these
    areas, which is the primary concern and objective.

        Question 3. Do you believe the media is the ``enemy'' of the
    American people?
        Answer. No. However, having worked on public policy matters in
    Washington, D.C., for over two and a half decades, I believe that a
    number of media outlets maintain biases that were and remain reflected
    in their reporting to the detriment of projects and views of my former
    employers or myself. Thankfully, the communications beat tends to avoid
    many larger politically-charged issues.

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