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Pre-Trump FCC – get a grip on mobe data caps, racist Stingray spying, urge Dem senators

Warren, Bernie, Wyden push for changes before January

Leading Democrat senators are pushing the US Federal Communications Commission (FCC) to address a number of hot topics, including zero rating and the use of the Stingray cellphone-tracking technology, before the Trump Administration takes over in January.

In a letter [PDF] sent Friday, seven senators including Elizabeth Warren (D-MA), Bernie Sanders (D-VT) and Ron Wyden (D-OR) encouraged FCC chair Tom Wheeler to "take enforcement action" against any companies engaging in zero-rating – where specific products or services are provided by an access provider without charge or counting against monthly mobile data usage limits.

"Without proper oversight and enforcement action, zero-rating can discriminate against certain services, potentially distorting competition, stifling innovation and hampering user choice and free speech," the letter warns.

Following the approval of net neutrality rules, the FCC noted that they did not outlaw the practice of zero-rating, but that the federal regulator would look at the issue on a case-by-case basis.

One such case arrived quickly when mobile operator T‑Mobile US was revealed to be throttling video as part of its "unlimited" BingeOn plan, something a law professor concluded clearly breached net neutrality rules.

The FCC open an investigation back in December 2015 and T‑Mobile US' CEO jumped about on the issue before finally ordering some changes that he claimed resolved concerns. The FCC has been silent on the issue since, however earlier this month it sent a letter to AT&T asking about its plans to launch DirecTV as a zero-rated streaming video service. A letter noted that while AT&T is allowed to zero-rate services, omitting its own DirecTV plans for free while charging rival services for the same zero-rate status would create an unfair playing field for third-party video services.


The enforcement of net neutrality rules has been sporadic, and the FCC does not have a clear body of work that helps define the new rules of the market – and that is precisely where a future, Republican-controlled FCC may seek to undermine the net neutrality rules: by failing to carry out any effective enforcement.

By urging the FCC to act, the Senators hope to build up precedent, although it may all be for nothing, since there is a strong push to remove the rules altogether – a position strengthened by the recent appointment of two net neutrality opponents to the Trump FCC transition team.

One of those appointments – Mark Jamison – wrote a blog post last month that questioned why the FCC existed in its current form at all. "Does the need for an independent communications agency still exist?" he asked. "Most of the original motivations for having an FCC have gone away."

In addition to the zero-rating issue, six of the same seven senators plus another six senators sent a different letter to the FCC last month, urging it to dig into the issue of the Stingray cell tower simulator that has controversially been used by local police forces across the United States.

The 12 senators called on Wheeler and the FCC to examine how the use of Stingrays – which still remain a closely guarded secret – might impact "communities of color" disproportionately.

"While we appreciate law enforcement's need to locate and track dangerous suspects, the use of stingray devices should not come at the expense of innocent Americans' privacy and safety," read the letter, "nor should law enforcement's use of the devices disrupt ordinary consumers' ability to communicate."

Where to?

Despite the prodding, it's unclear what Wheeler will do in the remaining month he has with a voting majority. Democratic commissioner Jessica Rosenworcel will likely be forced out at the end of the year as Congress fails to consider her renomination, and Wheeler will be under pressure to follow precedent and step down as chair to make way for a new chair chosen by President Trump in January.

Since the election, Wheeler has bowed to Republican pressure by effectively scrapping the entire FCC November monthly meeting due to its "controversial" agenda items. It's unclear whether he intends to bow out quietly, put up a fight, or simply keep the FCC in a stalemate until his term officially ends in November 2018. ®

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