Cell Location Privacy Act Introduced in House

On February 15, Rep. Jason Chaffetz (R-UT) introduced H.R.1061, the Cell Location Privacy Act of 2017. The bill proposes to ban the use of cell-site simulators, known as StingRay devices, without first obtaining a warrant. Cell-site simulators are devices that appear to be legitimate cell phone towers that enable their users to collect information from mobile phones within the vicinity of the device. Such information can include metadata about calls such as who is being dialed or the duration of calls, the content of text messages and voice calls, and other data such as websites visited by the mobile phone user. Originally developed for national intelligence agencies, the devices have been adopted by local law enforcement agencies across the country. The bill carves out exceptions to the warrant requirement for foreign intelligence gathering as well as emergency circumstances. The penalty for violations would be a fine, imprisonment for up to 10 years, or both. The bill has been referred to the House Judiciary Committee.

This Week’s Hearings:

  • Wednesday, March 1: The Senate Commerce, Science, and Transportation Committee has scheduled a hearing titled “Connecting America: Improving Access to Infrastructure for Communities Across the Country.” The hearing will examine the challenge of connecting Americans, especially in rural communities, to transportation and information networks. The witnesses will be: The Honorable Dennis Daugaard, Governor of South Dakota; The Honorable Philip Levine, Mayor of Miami Beach; The Honorable Carlos Braceras, Executive Director, Utah Department of Transportation; and Shirley Bloomfield, Chief Executive Officer, NTCA-The Rural Broadband Association.
  • Thursday, March 2: The Subcommittee on Communications, Technology, Innovation, and the Internet of the Senate Committee on Commerce, Science, & Transportation will hold a hearing titled “Exploring the Value of Spectrum to the U.S. Economy.” Witnesses include Scott Bergmann, Vice President, Regulatory Affairs, CTIA – The Wireless Association; Roger Entner, Founder, Recon Analytics; Dave Heiner, Vice President and Deputy General Counsel, Microsoft; Pat LaPlatney, President and Chief Executive Officer, Raycom Media; and Tom Stroup, President, Satellite Industry Association. According to a statement on the Committee’s website the hearing will “explore the future of spectrum policy and how wireless technology benefits consumers and the economy” and will “examine evolving market demand for licensed and unlicensed spectrum and the Federal Communications Commission’s recent spectrum auctions.

Regulatory Activity

FCC Exempts Smaller Broadband Providers From Enhanced Broadband Reporting Requirements

On February 23, the FCC voted to “relieve[] thousands of smaller broadband providers from onerous reporting obligations stemming from the 2015 Title II Order” – sometimes referred to as the Open Internet Order – “freeing them to devote more resources to operating, improving and building out their networks,” according to an FCC News Release. The “enhanced transparency” reporting requirements adopted by the FCC in the 2015 Title II Order included, for example, a requirement that “broadband providers always must disclose promotional rates, all fees and/or surcharges, and all data caps or data allowances,” according to the Title II Order. The Order adopted by the FCC on February 23 (which has not yet been released) “finds that providers with 250,000 or fewer broadband connections would be disproportionately impacted if required to comply immediately with the 2015 enhanced reporting requirements,” per the News Release. The forthcoming Order exempts such providers from the enhanced reporting requirements both retroactively from when the requirements became effective and for “five years after the date the order is adopted,” according to the News Release. The FCC notes in the News Release, though, that such providers must “still give consumers the information that has been required since 2010 to assist them in making an informed choice of broadband providers.”

FCC Releases Proposed Rules For “Next-Gen” TV Broadcasting Standard

The FCC has issued a Notice of Proposed Rulemaking (NPRM) proposing to “authorize television broadcasters to use the ‘Next Generation’ broadcast television . . . transmission standard” – ATSC 3.0 – “on a voluntary, market-driven basis, while they continue to deliver current-generation digital television.” The NPRM was adopted unanimously by the three FCC Commissioners at the agency’s February 23 Open Commission Meeting. The FCC noted in the NPRM that, according to a “coalition of broadcast and consumer electronics industry representatives that has petitioned the [FCC] to authorize the use of ATSC 3.0, this new standard has the potential to greatly improve broadcast signal reception, . . . and it will enable broadcasters to offer enhanced and innovative new features to consumers, including Ultra High Definition (UHD) picture and immersive audio, more localized programming content, an advanced emergency alert system (EAS) capable of waking up sleeping devices to warn consumers of imminent emergencies, better accessibility options, and interactive services.” The petition referenced by the FCC was filed in April 2016 by the National Association of Broadcasters, America’s Public Television Stations, AWARN Alliance, and the Consumer Technology Association.

FCC Chairman Pai Seeking Stay of Data Security Rule Component of Broadband Privacy Framework

On February 24, FCC Office of Media Relations Acting Director Mark Wigfield issued a statement that “[FCC] Chairman Pai is seeking to act on a request to stay [the data security rule] before it takes effect on March 2.” According to the statement, if the FCC Commissioners “are willing to cast their votes by March 2, then the full Commission will decide the stay request. If not, then the [FCC’s] Wireline Competition Bureau will stay that one element of the [broadband] privacy rules.” The data security rule, one of the broadband privacy rules issued by the FCC in October 2016, would in part require that “broadband providers engage in reasonable data security practices and guidelines on steps [Internet Service Providers] should consider taking,” according to an October 27, 2016 FCC News Release. FCC Chairman Pai “has advocated returning to a technology-neutral privacy framework for the online world and harmonizing the FCC’s privacy rules for broadband providers with the FTC’s standards for others in the digital economy. Unfortunately, [the data security rule] that is scheduled to take effect on March 2 is not consistent with the FTC’s privacy standards,” according to Mr. Wigfield’s statement.

FCC Commissioner Mignon Clyburn and Federal Trade Commissioner Terrell McSweeny issued a joint statement in response to Chairman Pai’s move to roll back the privacy regime adopted by former FCC Chairman Tom Wheeler. The FCC and FTC Commissioners noted among other things that, “[t]he 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.” Addressing specifically the FCC’s circulation and review process, Commissioner Clyburn noted that “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.”