We feel your pain

At most educational conferences, the assembled audience sits through the presentations in docile — if not comatose — compliance, waiting to speak until the end when there isn't time for meaningful questions, much less answers.

But a peculiar thing happened last week at ISPCon in Baltimore. In the middle of a session on rules enforcement led by three FCC staffers, the assemblage became animated, essentially derailing the formal part of the presentation.

In various forms, several attendees asked why the FCC's enforcement bureau has never issued a fine, consent decree (the equivalent of a plea bargain) or a license revocation based on an ISP-filed complaint.

Two divisions within the FCC's enforcement bureau typically handle ISP-generated complaints: the Market Disputes Resolution Division and the Investigations & Hearings Division.

According to the FCC, the Market Disputes Resolution Division resolves complaints against common carriers by competitors and other carriers involving competition and other market-related issues. Generally, this division gets involved after a lawsuit is filed in federal court or with the FCC.

The Hearing Division's responsibilities include assisting or conducting investigations involving common carriers or other entities. It serves as trial staff in formal FCC hearings and receives most ISP complaints.

According to Suzanne M. Tetreault, assistant chief of the FCC's Enforcement Bureau, the commission shares the ISPs' frustrations.

“We're at a disadvantage because we're not with you every day to understand what's happening in your business, and you're at a disadvantage because you don't fully understand our rules,” she told those attending the session. “[The rules] may address your problem, or they may not. Or the things that are hurting you may not be a violation of the FCC's rules.”

Nevertheless, Tetreault acknowledged that the rules can be murky.

“Simplifying the rules can only be helpful, and we may see more of that,” she said after the session. “We have a new chairman with a new approach to things.”

Even if ISPs understand the rules fully, sometimes they do a poor job of providing the bureau with the information it needs to investigate the complaint.

“I don't mean to sound defensive, but there is a lack of homework,” said Frank Lamancusa, deputy division chief of the Market Disputes Resolution Division. “Sometimes we'll have an ISP tell us, ‘This must be a violation of something.’ But it may or may not be a violation. We have to decide whether the information we receive is sufficient to proceed with an investigation.

“Sometimes the information is worse than anecdotal. We can't do anything with that kind of information.”

Even when the bureau decides to proceed, it may seem as if they're doing nothing, said Elizabeth H. Valinoti, an attorney with the Investigations & Hearings division.

“This is a prosecutorial process,” she said. “There are no knee-jerk reactions. We have to make sure that what is being alleged is legitimate.”

In fact, the bureau remains mum about all complaints until it decides the accused is guilty of a violation; even then, the bureau reserves a right to keep its findings — and any resultant rebuke — private.

‘One of our fundamental goals is to be fair to everyone in the process.’
— Suzanne M. Tetreault

“One of our fundamental goals is to be fair to everyone in the process,” Tetreault said. “If it turns out that the accused isn't in violation, we don't think it's fair that the whole world finds out that they've been investigated.”

Even when disciplinary action is warranted, sometimes it is not practical to do so, Lamancusa said, citing NorthPoint's abrupt decision to pull the plug on its network (see story on page 14).

“There's a question regarding jurisdiction. The California PUC is telling them to keep the lights on, but the bankruptcy court is telling them to turn them off,” he said.

“And fining NorthPoint $50,000 (bureau fines can go as high as $100,000) for turning off their customers doesn't really get us anywhere. The real answer is to see if there's anything we can salvage.”