Our Court Motions to Oppose the Premature Open Internet Challenges

Posted January 28th, 2011 by Austin Schlick - General Counsel

The rules that govern when and how parties may challenge FCC orders are clear, and Verizon and MetroPCS filed too early when they challenged the Open Internet order.

Today, the FCC filed several motions with the U.S. Court of Appeals for the District of Columbia Circuit asking that court to dismiss both companies’ challenges as premature.

For easy public access, we have posted the motions below:

Motion of the FCC to Dismiss

Verizon v. FCC, No. 11-1014 (D.C. Cir.)

Motion of the FCC to Dismiss and to Defer Filing of the Record

MetroPCS Communications, Inc., et al. v. FCC, No. 11-1016 (D.C. Cir.)

Motion of the FCC to Defer Consideration of Verizon's Motion for Panel Assignment and to Defer Filing of the Record

Verizon v. FCC, No. 11-1014

Cross-posted from OpenInternet.gov

A Third-Way Legal Framework For Addressing The Comcast Dilemma

Posted May 6th, 2010 by Austin Schlick - General Counsel

When the D.C. Circuit issued its opinion in the Comcast/BitTorrent case, it was clear the decision could affect a significant number of important recommendations in the National Broadband Plan, the Commission’s Open Internet proceeding, and other policy initiatives related to broadband.  In light of the uncertainty created by the decision, the Chairman asked me to investigate all of the options available to the Commission.  Other FCC staff and I have developed a proposal that we believe resolves the doubt created by the D.C. Circuit’s opinion while providing a firm legal basis for the Commission’s limited, but vital role with respect to broadband.  Whether, all things considered, the legal response to Comcast sketched out in our proposal is the best one for the Commission to adopt would be for the five FCC Commissioners to answer after public comment and private study.  In my judgment, it’s a question worth asking.

Read more about the proposal here.

Read Chairman Genachowski’s statement discussing his reasons for seeking comment on the proposal here.

[Cross-posted from Blogband]
 

FCC Reform of Procedures

Posted April 14th, 2010 by Austin Schlick - General Counsel

I’m pleased to report that the FCC has begun two formal proceedings on ways to reform its procedures. 

The first Notice of Proposed Rulemaking proposes rule changes to make the Commission’s decision-making processes more open, transparent, fair, and effective.  The major proposals in the Ex Parte NPRM include:

• Requiring the public filing of a summary of every oral ex parte presentation
• Requiring the filing of a notice that summarizes all data and arguments presented and allowing cross-references to earlier filings where appropriate 
• Establishing a preference for electronic filing of all notices of ex parte presentations 
• Requiring faster electronic filing (within four hours) of notices of permitted ex parte presentations made during the “Sunshine Period,” which typically begins a week before a public Commission Meeting, for those items on the Meeting agenda
• Starting the Sunshine Period prohibition on ex parte presentations at midnight after a Sunshine notice has issued to enhance predictability.

The Commission is asking for public comment on all these proposals.  In addition, the Commission is seeking comment on other topics, such as revisiting our current exceptions to the Sunshine Period prohibition on ex parte presentations, requiring disclosure of ownership or other information about organizations making filings at the Commission, sanctions and enforcement for violations of the ex parte rules, and how the ex parte rules should apply in the context of new media, such as this blog.

Second, the Commission adopted a Notice of Proposed Rulemaking that proposes some changes to our procedural and organizational rules.  The major proposals in this Procedures NPRM include:

• Expanding the use of docketed proceedings and maximizing electronic filing through the Commission’s improved Electronic Comment Filing System
• Delegating authority to the staff to serve parties to FCC proceedings electronically
• Delegating authority to bureau and office chiefs to dismiss or deny defective or repetitious reconsideration petitions that do not warrant consideration by the full Commission
• Making our rules clear that when an FCC rule or order requires action by the Commission on a weekend or holiday, the action must be taken by the next business day
• Adopting a default effective date for new rules when the FCC does not specify an effective date in the relevant rulemaking orders.

We look forward to receiving public input on all these proposals.  Because the Commission has begun formal proceedings on these matters, we are closing this blog to further public comment and are instead requesting that comments be filed directly in the Commission’s formal record.  Brief comments on the Ex Parte NPRM can be filed at ECFS Express, and brief comments on the Procedures NPRM can be filed here.  Longer comments, including those with attachments, can be filed at ECFS and should refer to GC Docket No. 10-43 (Ex Parte NPRM) or GC Docket No. 10-44 (Procedures NPRM).  Comments are due on May 10, and reply comments are due on June 8.

Thank you for your interest in reforming the FCC.  Please let us know what you think of these proposals, and suggest some of your own.  We look forward to having you participate.