FCC Commissioner Mignon Clyburn

Previously I have asked, what additional steps can the Federal Communications Commission take to maximize the benefits and opportunities, of the agency’s Healthcare Connect Fund (HCF). While the $400 million a year program has historically been undersubscribed, requests for support in funding year 2015, the most recent available, reached a historic high of nearly $378 million. Given the finite funding available for this program, I believe we should constantly be thinking about the best ways to improve its effectiveness. One such idea, is the RURAL Telehealth Act, introduced during the last Congress. This bipartisan bill recognizes, that non-rural hospitals and health-care providers, may be best positioned to bring telehealth services to their communities. I welcome your thoughts on how this legislation would impact South Carolinians, our fellow citizens and your goal of bringing advanced telehealth services to communities most in need.

Over the past three years, the Connect2HealthFCC Task Force has been on the cutting edge of examining the intersection of broadband, advanced technology and health. This is why I am so thrilled that Chairman Pai has affirmed his commitment to its continuation. The task force has and will continue to ensure that the Commission is equipped with the data and information it needs to understand the rapidly evolving landscape for broadband-enabled healthcare. Armed with this knowledge, we can narrow the digital and opportunities divide to ensure much needed health and wellness solutions reach all Americans.”

I would like to address three broad topics today: our progress towards 5G, continued universal service reform, the media landscape, and close with a look at this new era at the Federal Communications Commission and my role in it.

Commissioner Clyburn: On the very same day a major content distribution network revealed that the private data of millions of users from thousands of websites had been exposed for several months, the FCC announced its intention to indefinitely suspend rules requiring broadband providers to protect users’ private data. The irony here is inescapable. With a stroke of the proverbial pen, the Federal Communications Commission—the same agency that should be the “cop on the beat” when it comes to ensuring appropriate consumer protections—is leaving broadband customers without assurances that their providers will keep their data secure.

It is for this reason, that I must issue this unequivocal dissent.

This Order is but a proxy for gutting the Commission’s duly adopted privacy rules—and it does so with very little finesse. First, the Order alleges deleterious divergence from FTC standards, when in actuality there is little daylight between the approaches taken by the two agencies. Second, the Order alleges significant harm to service providers, but cites absolutely nothing to prove it. In fact, the stay request does not even begin to estimate the costs associated with compliance. The outcome of this Order is not relief of regulatory burdens, as is evidenced by providers seeking a stay using the text of the FCC’s rule as the basis for their voluntary code of conduct. What it actually does is permit providers to shift the costs for corporate negligence onto private citizens.

Finally, I must express my disappointment that the Chairman even entertained this item being adopted on delegated authority. This would have marked the first time in which the Wireline Competition Bureau actually granted a petition for stay. Thankfully, my request to have this considered by the Commission preserved some degree of procedural integrity at the FCC.

Commissioner O’Rielly: I support this decision to stay the broadband data security rules while the Commission and Congress consider an appropriate resolution of the broader Net Neutrality proceeding.

To be clear, I think the law and Commission precedent are quite straightforward: the FCC lacks authority to adopt data security rules for any type of provider. Data security is not mentioned anywhere in the Communications Act, and other statutes and legislative efforts that have addressed the topic do not afford the FCC any role.

I consistently objected to the prior Commission’s unlawful attempts to freelance in this area long before the Net Neutrality Order and Privacy Order were adopted. I also pointed out that the Commission’s attempts to saddle the communications sector with experimental regulations could conflict with well-established FTC precedents that have served as a predictable road map for businesses and consumers alike.

Finally, I appreciate the opportunity to vote on this order at the Commission level. While I welcome greater participation by the full Commission in general, I think that Commission-level action on significant decisions like this one are particularly helpful to provide a clear and final statement of the agency’s position, which promotes transparency and certainty for all interested parties.

“Today Chairman Pai has created an unfortunate dilemma: accept a Bureau-level action that indefinitely unwinds key consumer privacy protections established by the FCC last year, or accept four business days (rather than the usual three weeks) to evaluate and vote on a decision that has massive ramifications for the security of private information held by broadband providers,” said FCC Commissioner Mignon Clyburn.

“I am very troubled by the news that the data security protections of the Broadband Privacy Rule will be put on hold. What this means, in effect, is that consumers with a broadband subscription will be less protected because the only cop on the beat has been taken off their patrol. In an age of Internet connected everything, removing security requirements from broadband providers is needlessly dangerous for American consumers. The rules the FCC adopted conform to long standing FTC practice and provide clear rules on how broadband companies should protect their customers’ personal information. This action weakens the security requirement guarding every consumers’ most personal data and should be reconsidered,” said FTC Commissioner Terrell McSweeny.

“The outcome is clear. Chairman Pai is determined to take action that leaves consumers without a cop on the beat protecting their personal information from misuse by their broadband service provider. This means no federal data security requirements whatsoever for broadband providers. This is the antithesis of putting #ConsumersFirst,” said Clyburn and McSweeny.

“Then-Commissioner Pai said in 2014 that ‘FCC decisions issued on the bureau level cut the commissioners out of the decision-making process entirely.’ Today, he is using the very same tool as Chairman that he criticized as a Commissioner. I could not agree with his 2014-self more that ‘bad process makes bad policy.’ And that is exactly what we see here today,” continued Clyburn.

It is 9:10 am on Monday, February 6, 2017, and I am sitting in the courtroom without my cellphones. Like many who find themselves disconnected from their mobile device(s) for any length of time, I feel extremely uncomfortable and detached from the rest of the world. But whatever my discomfort, it pales in comparison to the day-to-day economic and personal torture felt by millions who remain on the wrong side of the economic justice divide and struggle to stay in touch with incarcerated loved ones.

Innocent or guilty, too often poor and disenfranchised, millions of mostly black and brown families suffer mightily. They suffer because we who are sworn to serve them have turned our backs on the nation's most vulnerable communities. We are quick to judge and do not think twice as we ignore the plight of the families, friends and representatives of those imprisoned, but awaiting their day in court, and the millions of others who have been sentenced and are serving time: rightly, wrongly or unfairly. But the most callous indictment of us all, is how little we appear to care about the 2.7 million children, the ailing grandmothers and the other often-destitute family members who pay a heavy price just for picking up the phone and keeping in touch.

Today we took yet another step towards #PhoneJustice on behalf of the millions burdened by the egregious costs of communicating with a loved one who is currently incarcerated. I am grateful to the individuals who argued on behalf of justice for the inmates, their families and their legal representatives, and am confident that the court grasped the nuance of the legal arguments. Regardless of how the Court rules, I will continue to press forward to ensure that inmates and their families receive just, reasonable, and fair phone rates. Justice demands it, and so do I.

Today is apparently ‘take out the trash day.’

In an eponymous episode of the West Wing, White House Chief of Staff Josh Lyman stated: ‘Any stories we have to give the press that we’re not wild about, we give all in a lump on Friday . . . Because no one reads the paper on Saturday.’ Today multiple Bureaus retract—without a shred of explanation—several items released under the previous administration that focus on competition, consumer protection, cybersecurity and other issues core to the FCC’s mission.

In the past, then-Commissioner Pai was critical of the agency majority for not providing sufficient reasoning behind its decisions, citing specifically to the Supreme Court case Fox v. FCC which states: ‘[T]he requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position. An agency may not, for example, depart from a prior policy sub silentio[.]’

It is a basic principle of administrative procedure that actions must be accompanied by reasons for that action, else that action is unlawful. Yet that is exactly what multiple Bureaus have done today. The Bureaus rescind prior Bureau actions by simply citing a rule that allows them to do so, when in prior invocations of that rule there have been oft-lengthy explanations for the reasoning behind the actions.

My office requested more than the allotted two days to review the dozen items released today. We were rebuffed. Then, we simply asked to have the Bureaus comply with the reasoned decision-making requirements of the APA. No deal. It is disappointing to see this Chairman engage in the same actions for which he criticized the prior Chairman. I am hopeful that in the future this Commission, consistent with our shared commitment to increased transparency, will heed the APA’s requirement for reasoned decision-making. The American public deserves no less.”

Today, the agency reverses course on providing more competition and consumer choice for Lifeline customers. Rather than working to close the digital divide, this action widens the gap.

By eliminating the designations of nine entities to provide Lifeline broadband service, the Bureau has substantially undermined businesses who had begun relying on those designations. These providers include a minority-owned business, a provider enabling students to complete their homework online, and others serving Tribal lands.

Given the serious policy concerns at stake here, I asked to have this Order considered by the full Commission. But, clearly the goal was to include this in the ‘Friday News Dump’, as my request was flatly denied.

I remain hopeful, however, that this is not the final answer and that the providers’ requests will remain pending after today’s action. I implore the Chairman and the Bureau to consider these designation requests expeditiously. #ConsumersFirst.

Now I am as tired of highlighting this factoid as you must be of hearing it: racial and/or ethnic minorities only hold a majority of the voting interests in approximately six percent of fullpower commercial TV licenses and just over eight percent of commercial radio licenses. My office released a draft proposal in December, and in this #Solutions2020 Call to Action Plan, we outline several steps designed to enhance digital inclusion and promote a more diverse media landscape.

It starts, from where I sit, with the reinstatement of the Federal Communications Commission’s Minority Tax Certificate Program. Second, working with the broadcast industry, the Commission should establish a pilot incubator program, designed expressly to increase women and minority ownership. Third, through our Notice of Proposed Rulemaking (NPRM) on Independent Programming adopted last September, we have an opportunity to enhance the voices of independent and diverse programmers outside of the broadcast space. Fourth, and while it was not introduced in our draft plan, I continue to believe if done right, ATSC 3.0 could help to fulfill our goal of greater viewpoint diversity. Fifth, even when capital is available, securing a license for a full-power television or radio station in a major market, may not be within reach. Sixth, it is important that we focus not just on station ownership, but on the importance of diversity in front of and behind the camera.