Basing net neutrality rules on Communications Act Title II would take away the FTC’s ability to enforce regulations like blocking or discrimination under consumer protection rules, FTC Commissioner Maureen Ohlhausen said Tuesday during a Federalist Society teleforum. The FTC exempts common carriers, said Ohlhausen, as she and Daniel Lyons, an associate professor at Boston College Law School, argued the concerns of net neutrality proponents could be addressed under antitrust laws. Title II would treat ISPs as common carriers. The FTC’s inability to take action wouldn’t “necessarily mean no action will be taken,” said Public Knowledge Vice President Michael Weinberg. The FCC would under Title II still be able to enforce regulations, said Weinberg, who argued Title II is the only way to enforce “robust” net neutrality regulations. Lyons said not all forms of prioritization are anti-consumer. If tradeoffs need to be made because of finite broadband capacity, a momentary delay would likely be more noticeable for video streaming like Netflix or a telehealth session than for email or a website, yet regulations that allow no prioritization would take a “first-come, first-serve approach,” Lyons said. The FTC has hundreds of cases involving the Internet and “it would be a shame” to lose the agency’s expertise, Ohlhausen said. Handling cases that affect consumers through antitrust laws would deal with issues on a “case-by-case” basis, Ohlhausen said. Not all problems that could arise involving blocking or discrimination would be anti-competitive issues that would fall under antitrust laws, Weinberg said. Another approach, basing rules on Section 706, poses unattractive alternatives, he said. Robust rules would likely be thrown out by the courts as imposing common carrier regulations without declaring companies common carriers, he said. Rules that could pass legal muster would not be strong enough to deal with concerns, said Weinberg, who noted that the FCC exists precisely because communications is so important a segment of society it deserves an agency to focus on it.

Glenn Reynolds joined the NTIA as chief of staff, from USTelecom where he was vice president-policy. Reynolds is also a veteran of BellSouth and the FCC, where he was deputy chief of the Common Carrier Bureau and chief of the FCC’s Enforcement Division. Reynolds replaces Tony Wilhelm, longtime chief of staff who left in May and is now vice president-external relations at Affiniti.

The FCC’s Consumer Advisory Committee released a statement Monday commending the FCC for its work on mobile device theft. The CAC recommended the FCC refresh consumer education materials “with regard to stolen smartphones to educate consumers about new technologies and best practices in mobile device security,” and coordinate “carefully planned and funded” public service announcement campaigns among other steps (http://bit.ly/WK8rCy). “Wireless device theft -- and particularly smartphone theft -- is a pervasive and devastating crime affecting millions of American consumers,” CAC said. In a second statement, CAC recommended that the FCC “closely coordinate” with other federal departments, independent agencies and program administrators “that oversee direct low-income consumer assistance programs” to align commission policies on universal service with other work being done to help low-income consumers (http://bit.ly/1rwf3h7).

U.S. surveillance programs are causing lawyers and journalists to significantly alter how they work, said Human Rights Watch (HRW) and the American Civil Liberties Union (ACLU) in a joint report released Monday (http://bit.ly/1k3GMGT). The report, based on interviews with numerous journalists, lawyers and U.S. government officials, details the steps that many have taken to secure confidential communications and sources, said a release (http://bit.ly/1l7tAvW). “The report finds that government surveillance and secrecy are undermining press freedom, the public’s right to information and the right to counsel, all human rights essential to a healthy democracy,” said HRW and the ACLU. “The US holds itself out as a model of freedom and democracy, but its own surveillance programs are threatening the values it claims to represent,” said Alex Sinha, Aryeh Neier Fellow at HRW and the ACLU. “The US should genuinely confront the fact that its massive surveillance programs are damaging many critically important rights."

The FCC hired a former senior adviser in the Democratic National Committee’s finance operations as a political appointee responsible for external relations, an agency spokesman said. He said Eric Feigenbaum, who has sat in on some recent net neutrality lobbying meetings, is barred from doing any fundraising under the Hatch Act. Feigenbaum didn’t respond to our request for comment, and the DNC had none other than to give his title there. Feigenbaum started July 7 as a political appointee in the Office of Media Relations, said the FCC spokesman Friday. His position involves soliciting input from and providing information to stakeholders, said the spokesman. According to a LinkedIn page that the FCC spokesman confirmed as Feigenbaum’s, he had been a senior adviser since March 2013, after working for Obama for America from April 2011 to February 2013. He was Mid-Atlantic finance director for the Obama group, the FCC spokesman said. Feigenbaum also was deputy national finance director at the Democratic Senatorial Campaign Committee from January 2009 to March 2011, and deputy regional finance director for the DSCC from February 2007 to January 2009, his LinkedIn page said. His “organizational strengths, together with his considerable outreach skills, make him a great addition,” the spokesman said. Feigenbaum was involved in two recent meetings on net neutrality, ex parte filings show. In a July 17 meeting, AOL executives met with Gigi Sohn, special counsel for external affairs; Philip Verveer, Wheeler’s senior counsel; Daniel Alvarez, Wheeler’s legal adviser; Sagar Doshi, Wheeler’s special assistant; Deputy Wireline Bureau Chief Matthew DelNero; and David Toomey, deputy director of legislative affairs, as well as Feigenbaum, an ex parte filing (http://bit.ly/1nRY84x) said. AOL pushed for the commission to rely on Communications Act Section 706 in crafting narrowly tailored net neutrality rules including a ban on pay-to-play when a broadband access provider has market power, the filing said. Title II should be used only as a backstop, AOL said. Feigenbaum was also involved in a July 16 meeting with Tekedra Mawakana, Yahoo’s global head of public policy, and Margaret Nagle, the company’s head of U.S. government affairs, according to an ex parte filing (http://bit.ly/1yRJHFT). The company made the same pitch as AOL, the ex parte filing said. Yahoo-connected individuals contributed $284,281 in the 2012 cycle, including $82,300 to the DNC and $75,968 to the Obama campaign, according to the Center for Responsive Politics (http://bit.ly/1nD1kFs). Neither AOL nor Yahoo would comment. — KM

Former telecom executives said switching Local Number Portability Administrators 10 months before the change is supposed to take place poses risks, in a webinar sponsored by Neustar Thursday. “It’s a really tight time frame for anything,” said Standish Group CEO Jim Johnson. The North American Numbering Council has recommended that Ericsson subsidiary Telcordia, doing business as iconectiv, replace Neustar as the next LPNA. Neustar has filed challenges to the selection in docket 09-109, and in its webinar, former Sprint Chief Information Officer Dick LeFave said the work of the LNPA is far more complex than in the past when there were “a limited number of customers. Customers have multiple devices now.” It’s a “short amount of time” to ensure there won’t be any problems, said former Comptel CEO Jerry James. Customers are “all going to blame you regardless of where in the process things may have failed,” he said. Any problems that would arise would carry the risk of losing customers, James said. Which company is the LNPA “is going to be very important” to the IP transition, he noted. “For local number portability, the biggest risk is actually staying with the incumbent who has no incentive to innovate and who has continually charged high rates,” responded Richard Jacowleff, CEO of iconectiv/Telcordia, in a statement. “No one is going to proceed with a transition faster than makes sense. The current contract allows for extensions in transition if needed. … But delay will also cost industry and consumers tens of millions of dollars per month.” The company’s transition plan “was thoroughly reviewed by a subcommittee of industry experts and by the North American Numbering Council. … For service providers, their interfaces to the NPAC won’t change and everyone will see lower costs, including consumers.” A new LNPA will also allow better integration into new technology “because it will have been built for the current environment and not based on what telecommunications looked like in 1997,” the statement said.

President Barack Obama faced “a handful” of net neutrality protesters Wednesday when traveling through California’s Silicon Valley for a political fundraiser, according to White House pool reports. A pool report flagged “one colorful sign: ’stop cable company f-&:39$! ery,'” quoting John Oliver’s HBO segment on net neutrality. Obama joined House Minority Leader Nancy Pelosi, D-Calif., and House Energy and Commerce Committee Communications Subcommittee ranking member Anna Eshoo, D-Calif. Eshoo is vying to be ranking member of the full committee after current ranking member Henry Waxman, D-Calif., retires, a political battle in which she’s already won the support of Pelosi.

Correction: Most state governments that commented on the FCC’s NPRM on net neutrality rules urged the FCC to reclassify broadband as a common carrier service under Communications Act Title II (CD July 22 p7).

The U.S. Court of Appeals for the D.C. Circuit should uphold the FCC’s prison phone order because the interim reforms contained in the order are a “sound exercise of the FCC’s broad discretion to adopt ratemaking rules on an interim basis,” the FCC said in a court brief it posted Tuesday (http://fcc.us/1r45rKl). Inmate calling service provider Securus and other providers are challenging the order, which the D.C. Circuit partially stayed in January (CD Jan 14 p3). The FCC said it was within the law in requiring interstate inmate calling rates be based on the “reasonable costs of providing inmate calling services,” and noted it provided “ample notice” of its intentions. The cost-based rule also doesn’t impose rate-of-return regulation, despite what Securus and other providers say, the FCC said. The commission said it gave sufficient guidance on what costs were “reasonably related” to inmate caller services and was reasonable in finding that site commissions weren’t recoverable through interstate calling rates. The interim hard caps included in the order are also “reasonable and reasonably explained,” as were the interim safe-harbor caps, the FCC said. The D.C. Circuit should also reject the providers’ challenge to the order’s requirement that ancillary charges be cost based, the FCC said. The commission has the authority to issue that requirement, which itself is a “necessary aspect of ensuring just, reasonable, and fair interstate inmate calling rates,” the FCC said. The D.C. Circuit should also reject the providers’ claim that the order “unlawfully infringes” on state and local authorities’ power to manage correctional facilities because the FCC has the authority to “ensure that rates for interstate inmate calling services are just, reasonable, and fair,” the commission said. The order doesn’t “abrogate contracts between inmate calling providers and correctional facilities; it merely regulates the charges that providers may impose on consumers,” the FCC said.

The FCC should maximize the number of white space channels available for unlicensed use above channel 20 and maintain as many consecutive white space channels as possible as it repacks broadcasters after the incentive auction, said representatives of the Public Interest Spectrum Coalition (PISC) and Wireless Internet Service Providers Association (WISPA) in a meeting Thursday with staff from the FCC’s Incentive Auction Task Force and Media Bureau, according to an ex parte filing posted online Tuesday (http://bit.ly/1sMsD3F). Michael Calabrese, director of the New America Foundation’s Wireless Future Project, and Public Knowledge Senior Vice President Harold Feld attended the meeting on behalf of PISC, along with WISPA counsel Stephen Coran. In an upcoming FNPRM on the auction and secondary TV services, the commission should clarify that low-power TV channels that are being occupied using construction permits or “not currently providing a substantial broadcast service” should be available for at least temporary unlicensed use rather than their spectrum being allowed to lie “fallow,” PISC and WISPA said. The FNPRM should also seek comment on new reporting requirements for broadcast licensees that would require more “granular” data, such as periods when a given station isn’t operating. “Since broadcast licensees occupy the public spectrum at no cost, a requirement that they report changes in their operational status from time to time would present a trivial and appropriate obligation,” said the filing. PISC also proposed that the FCC should encourage more efficient spectrum use by requiring secondary broadcast licensees to “co-locate and share a single 6 MHz channel where that is feasible without reducing their broadcast service to the community,” the filing said. The FCC should test such a requirement in “at least the 30 largest” designated market areas, and seek further comment on the idea, PISC said.