[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






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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--
[email protected].
            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., [email protected], or Michael Macleod-Ball, 
American Civil Liberties Union, [email protected], or Corrine Yu, 
Leadership Conference Managing Policy Director, [email protected] 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 
[email protected], to Rakesh Patel at [email protected], to David 
M. Sobotkin at [email protected], and to Dangkhoa Nguyen at 
[email protected].
    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
                                 ______
 
 
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                                  ______
                                 
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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