Adam Bender

A federal appeals court on Friday denied a last-minute request by the government seeking a 30-day delay of a district judge’s order to release documents detailing telcos’ lobbying efforts seeking immunity for any involvement in the government’s warrantless surveillance program (CD Sept 28 p10). The government may renew the appeal after “presentation to the district court and the district court’s issuance of an order granting or denying the motion,” said the 9th U.S. Circuit Court of Appeals in San Francisco. Wednesday, U.S. District Judge Jeffrey White in San Francisco denied the government’s motions to postpone and reconsider a Sept. 24 order requiring the documents’ disclosure by Friday. “The Court is not persuaded that it should exercise its discretion to stay its own order pending ‘necessary consultations and deliberations to determine whether to appeal’ the Court’s Order,” White wrote. “The disputed documents were the subject of an order granting preliminary injunction dated April 2008, a subsequent delay in order for Defendants to re-evaluate their position subject to the reformed regulations of the Obama Administration, and the matter has been submitted on the parties’ cross-motions long enough for the Defendants to consider their options regarding a possible appeal in the event their motion was denied.” White said he turned down the request for reconsideration because no new facts, laws or arguments have emerged since the court issued the order. The government defendants “reargue points previously asserted to the Court and, in essence, merely express their disagreement with the Court’s decision.” The Justice Department and Office of the Director of National Intelligence responded late Thursday with an emergency motion at the 9th Circuit. The government said the solicitor general needs until Nov. 8 “to conduct the necessary consultations and deliberations regarding the appeal decision.” Without a delay, “the confidentiality of the documents will be irretrievably lost and this Court will be deprived of its ability to review the district court’s order,” it said.

The FCC tentatively concluded that incumbent local exchange carriers should get more universal service support under the local switching support (LSS) mechanism if they lose a significant number of access line customers. The conclusion came in a rulemaking notice responding to a petition by the Coalition for Equity in Switching Support. It protested an FCC rule that reduces a small incumbent carrier’s LSS support when its number of access lines climbs above a specified threshold but doesn’t increase support if the count falls below the threshold (CD Sept 3 p7). Republican commissioners supported the rulemaking but distanced themselves from the tentative conclusion.

The FCC Wireline Bureau will issue a public notice on special access within 30 days, Chairman Julius Genachowski wrote Senate Commerce Committee Chairman Daniel Inouye, D-Hawaii. “These issues have been pending for several years and I appreciate the understandable frustration of many parties regarding the Commission’s lack of progress in addressing special access issues,” Genachowski wrote on Tuesday.

Advocates for the disabled called for FCC mandates or recommendations to spur broadband adoption by people with disabilities. They responded to a commission notice seeking comment on broadband accessibility for people with disabilities, part of the FCC’s development of a national broadband plan. But CTIA, CEA and the Telecommunications Industry Association (TIA) warned that accessibility mandates for wireless and other devices drives up costs and can stifle innovation.

With review of the Verizon’s access line spinoff to Frontier pending, regulators are watching the escalation of financial woes at FairPoint Communications, government officials said. A year and a half after regulators cleared the spinoff of Verizon’s New England wireline operations to FairPoint, FairPoint is close to filing for bankruptcy (CD Oct 2 p14). Competitive local exchange carriers opposing Verizon’s proposed $8.6 billion sale of 4.8 million access lines to Frontier say the deal looks a lot like Verizon’s $2.7 billion sale of 1.5 million lines to FairPoint. Frontier argues its deal is different. Some regulators agree.

A conference call about net neutrality turned into a heated debate between AT&T and FreeConferenceCall executives concerning the companies’ legal fight over disputed revenue- sharing arrangements between rural local exchange carriers and free conferencing companies. The call was held using a free conference call provider and a northern Minnesota phone number. “Obviously, [we] have different views on how this policy issue should be resolved,” concluded AT&T Vice President Hank Hultquist.

The FCC may soon take a renewed look at the legality of traffic stimulation that rural local exchange carriers are accused of carrying out through arrangements with free- conferencing providers, industry officials said in interviews. They said two recent events have raised the profile at the FCC of what big carriers call traffic pumping: An Iowa Utilities Board decision last month requiring eight rural LECs to refund unauthorized intrastate switched access charges billed to Qwest, AT&T and Sprint, and an AT&T letter saying Google Voice is flouting an FCC ban on traditional telco “self-help” by blocking calls to numbers with high access charges (CD Oct 2 p13).

The Senate Judiciary Committee put off for a week a vote on a bill to reauthorize the Patriot Act after time ran short at a markup session Thursday. However, they voted to accept a substitute bill by Chairman Patrick Leahy of Vermont and Sen. Dianne Feinstein, D-Calif., that would create a 2013 sunset on the Act’s National Security Letter (NSL) provisions. The committee didn’t discuss immunity for telecom carriers in electronic surveillance cases, an issue that resurfaced earlier this week (CD Sept 30 p2) in a bill by Sen. Chris Dodd, D-Conn., and co-sponsored by Leahy. The Leahy-Feinstein bill “updates checks and balances by increasing judicial review of the use of government powers that capture information on U.S. citizens,” and “augments congressional oversight,” Leahy said. The bill also proposes a sunset on NSLs, “given their extensive use, abuse and intrusiveness,” he said. The bill includes higher standards for NSLs seeking library records, and repeals a 2006 provision “stating that a conclusive presumption in favor of the government shall apply,” he said. And it requires court oversight of minimization procedures when information about a U.S. person is acquired, retained or disseminated, he said. Nothing in the bill will obstruct any ongoing investigation, and the NSL sunset would coincide with other sunsets in the Act, said Feinstein. The proposal to sunset NSLs received opposition from Republican members. Sen. Jon Kyl, R-Ariz., introduced an amendment to strike the sunset, saying previous FBI abuses of NSLs had been remedied, but the committee voted it down. The meeting broke up without a final vote a few minutes before noon. Leahy said the committee will reconvene next week to vote on a final bill after considering additional amendments by Sen. Russ Feingold, D-Wis., and possibly others.

FCC policy must promote the development of tools to protect security of broadband networks, Commissioner Meredith Baker said at a cybersecurity workshop Wednesday at the commission. She encouraged the FCC to collaborate with industry on developing best practices. On a panel, industry officials resisted the idea of government certification of cybersecurity tools and practices but urged improved information-sharing processes before and during attacks.

“No one is proposing any government spending at this time,” FCC broadband plan coordinator Blair Levin told reporters late Tuesday after his task force presented its midterm report to the commissioners (CD Sept 30 p1). The task force estimate of the cost of making broadband available to everyone in the country, $20-$350 billion, reflects anticipated capital and operating expenses and shouldn’t be taken as a recommendation for what the government should spend, Levin said. He said he doesn’t know what the group will recommend in February beyond increased information collection. On possible government funding, Chairman Julius Genachowski said “all of the different policy options will have to be explored between now and February.” When Congress authorized broadband grants, it “understood that it was a step in what needs to be a larger, long-term plan for the country, he said. “This is a major challenge for the country that will require a national commitment to make sure that we have a 21st century communications infrastructure available to all Americans.” Universal-service reform and several other matters came up at the meeting, but “exactly what the timing will be of addressing each issue hasn’t been decided yet,” Genachowski said. He did touch on spectrum scarcity, saying he’s “less confident that the country will have the spectrum it needs to meet the purposes that were outlined in the presentation today.” But the chairman said he’s “confident that we will have data that’s sufficient to support what’s recommended.” With the midterm report done, Levin said, he expects meetings with industry to discuss the findings. The meetings will be closed but not confidential, and FCC staff probably will write about them on the commission’s blog, he said. The task force will concentrate, among a longer list of issues in the report, on “things that if we don’t change government policies, five to ten years from now” policymakers will regret it, he said.