A federal court reviewing an FCC order pre-empting North Carolina and Tennessee laws restricting municipal broadband efforts signaled interest in related legislation pending in both states. With oral argument scheduled for Thursday in Cincinnati, the 6th U.S. Circuit Court of Appeals wrote litigants in the North Carolina and Tennessee challenges to the FCC pre-emption order (Tennessee v. FCC, No. 15-3291, North Carolina v. FCC, No. 15-3555). “The panel directs counsel for the parties in this case that, in addition to addressing the arguments in the briefs, they should be prepared to answer questions about the significance, if any, of the pending legislation in both states that would amend the statutes to remove the barriers preempted by the FCC (Tenn. -- HB2133/SB2200 and NC HB349),” the clerk of the court wrote in a brief letter Friday. The only reason for the court to ask about the pending bills is if it suspects they might be enacted in the near future and moot aspects of the case, said Brad Ramsay, general counsel for NARUC, which intervened in support of the two states. But the odds of both bills being enacted are “very slim,” he told us Monday. “The legislation hasn’t passed, so you have a live case and controversy.” The court’s query is a bit “odd,” said Andrew Schwartzman, senior counselor at the Georgetown Institute for Public Representation, who filed an amicus brief supporting the FCC order on behalf of the Benton Foundation and other public-interest groups. “It is not unusual for some courts to notify the parties to be prepared to address particular questions, and that’s really helpful,” he told us. “But the questions here would be best done by letter because they’re completely speculative.” Nobody knows whether the bills will pass and in what form, he said. The FCC and North Carolina and Tennessee litigants had no comment.
FCC proposals to streamline rules for foreign ownership of stations will “facilitate investment in the broadcast sector” and improve transparency for broadcasters and investors, said a joint filing by CBS, Disney, 21st Century Fox and Univision posted in docket 15-236 Thursday. The proposals (see 1601220045) are universally supported, the programmers said. The “modest changes” will give broadcasters “greater predictability and reduced regulatory burdens and costs without in any way diminishing the government’s substantive oversight of foreign investment in the broadcast sector,” the programmers said.
President Barack Obama wants to ensure his administration and future White House administrations stay engaged with the tech industry, he said Friday during a conversation at the South by Southwest festival in Austin. “The reason I’m here really is to recruit all of you,” Obama said. He brought up the broadband stimulus funds and talked about the “enormous progress in extending more and more Internet access, high-speed Internet access, to communities across the country.” The administration is “on track” to meet its ConnectED goals, Obama said. He said the initiatives involve federal spending but also private industry stepping up. He said the initiative requires more than simply infrastructure but also efforts of community adoption, such as in schools. Obama said he couldn't comment on the ongoing Apple/FBI fight over unlocking a terrorist attacker's iPhone. But he cited the history of probable causes and warrants to investigate. "I am of the view that there are very real reasons why we want to make sure that government cannot just willy-nilly get into everyone's iPhones, or smartphones, that are full of very personal information," Obama said. Popular culture and the revelations of former NSA contractor Edward Snowden exacerbated this, he said. "What makes it more complicated is we also want really strong encryption," he added. "We've got two values, both of which are important. The question we now have to ask is, if technologically it is possible to make an impenetrable device or system where the encryption is so strong there's no key, there's no door at all, then how do we apprehend the child pornographer? How do we solve or disrupt a terrorist plot? What mechanisms do we have to do even simple things like tax enforcement?" Obama urged "some concession" to get to the information. He cited many ways the government interacts with tech officials, from civic participation in the voting booth to how government agencies use the Internet to how to confront terrorists online. "I am way on the civil liberties side of this thing," Obama insisted. "You cannot take an absolutist view on this," he said, and referred to engaging the tech industry aggressively on this issue. He foresees a future with strong encryption but one in which the key is available to a small subset of people on the right occasions. “Technology, globalization, our economy is changing so fast,” Obama said. “This gathering, South by Southwest, brings together people who are at the cutting edge of those changes. Those changes offer us enormous opportunities but also are very disruptive and unsettling. They empower individuals to do things they could have never dreamed of before, but they also empower folks who are very dangerous to spread dangerous messages.” Obama emphasized a desire to use big data and analytics to make civic participation easier. White House Chief Digital Officer Jason Goldman wrote a blog post outlining ways the administration has engaged with the tech industry.
A second report and order on recon circulated to the FCC Friday addresses the few remaining issues on the 3.5 GHz shared spectrum band, an FCC official said Friday. The item is likely a final step toward opening the band, the official said. The recon order largely leaves in place the framework adopted by the agency last April (see 1504170055), the official said. In its one tweak, the order increases the power level for nonrural Category B citizen broadband radio service devices, the official said. The report addresses how the FCC will define use for the priority access licenses (PALs) that will be auctioned by the FCC under the rules, the official said. The PAL spectrum is available for general use when not in use under a “use it or share it” regime. The order also addresses the issue of secondary markets for the PAL licenses and addresses fixed satellite service (FSS) protection, the official said. The order would use an engineering metric to provide geographic protection for in-band FSS sites, the official said. The order provides similar protections for a small number of FSS sites located out of band, at 3.7 GHz and above, used for tracking and control, the official said. The Wireless Bureau and Office of Engineering and Technology circulated the item. The FCC approved the initial NPRM on the band in 2012 (see 1212130044). The order would establish a three-tiered access and sharing model made up of federal and nonfederal incumbents, PALs and general authorized access users.
The FCC proposed an industry USF contribution factor for Q2 of 17.9 percent of end-user interstate and international telecom revenue, said an Office of Managing Director public notice Thursday in docket 96-45. Industry analyst Billy Jack Gregg had predicted the Q2 factor would fall to 17.9 percent from Q1's 18.2 percent (see 1603020012). Total USF program support is projected to be $2.2 billion in Q2, with the high-cost fund projected to require $1.125 billion of that, the PN said. The proposed contribution factor will be deemed approved if the agency doesn't act on it within 14 days, it said.
Work on opening the 5.9 GHz band must continue, said House Communications Subcommittee Vice Chairman Bob Latta, R-Ohio, and FCC Commissioner Mike O’Rielly in a joint blog post for The Hill, written earlier this month and circulated to press by the Commerce Committee Thursday. “The next step in the process is to develop a testing framework, which will ensure that science and engineering determine the best way to allow co-existence in this key spectrum band,” they said. “After some initial reluctance, all interested parties seem to accept that the FCC should move forward with such testing this year. ... We trust that this process can start quickly and focus on appropriately protecting DSRC [dedicated short range communications] technology’s principal functions, not non-safety matters that can be better addressed by other providers or technologies.”
Three low-power TV broadcasters asked the U.S. Court of Appeals for the D.C. Circuit for an emergency stay of the incentive auction, joining two similar requests from several Class A broadcasters, according to court filings. Free Access & Broadcast Telemedia, Word of God Fellowship and Mako Communications petitioned the FCC for such a stay but were rejected by the Media Bureau Thursday, shortly before the motion was filed with the D.C. Circuit. The LPTV broadcasters have ongoing cases in the D.C. Circuit with oral argument scheduled for May 5 (see 1603090078), and want the court to halt the auction until those cases are decided. “A brief postponement to consider challenges to the Commission’s mistreatment of LPTV will not prevent timely completion of the auction. The public interest thus strongly favors a stay,” the motion said. The incentive auction is to begin March 29. “A delay would disserve consumers as well as eligible entities who have made extensive preparations for the auction based on the current schedule, including securing financing and deferring other business plans,” the Media Bureau said in its rejection of the earlier petition for a stay
Granting ILEC objections, the FCC blocked Bruce Kushnick and Neil Stevens from viewing sensitive company data in the special access rulemaking subject to a protective order. AT&T and Verizon objected to the data-access request from Kushnick, New Networks Institute (NNI) executive director. CenturyLink and Verizon objected to the request from Stevens, a tech policy writer at RedState, a political website. In an order listed in Thursday's Daily Digest and posted in docket 05-25, the Wireline Bureau denied Kushnick’s request and said there was some doubt about whether NNI provided certain commercial services and qualified as an outside consultant to a proceeding participant. Citing various NNI descriptions of its activities, the bureau said “the exact nature of NNI’s activities and Mr. Kushnick’s role (whether Mr. Kushnick is acting as a representative of NNI or is he now acting in his own capacity) is unclear.” Kushnick’s “lack of previous involvement in this proceeding along with the very general nature of his filings” raise doubt about whether he would use the data access to file comments on the specific questions raised in the proceeding, said the bureau. The FCC noted AT&T said Kushnick's main occupation appeared to be writing blog posts and books. The "lack of transparency in who is behind Mr. Kushnick's organizations" combined with his views that special access information should be made public creates added risk he would disclose commercially sensitive data, AT&T said. The FCC noted Kushnick responded that NNI intended to participate meaningfully in the proceeding. But NNI was prevented from doing so because the FCC had allowed the telcos to "run out the clock in the comment cycle, he said in a Feb. 17 filing complaining about the lack of agency action on his request. NNI had answered the telcos' “specious claims” and should be given access to the data because it “has uncovered a massive financial shell game, that was created, in large part, by the FCC, which we have dubbed the ‘Big Freeze’ -- and it directly relates to ALL special access issues in America; the newly collected data should corroborate our filings,” he said. Kushnick told us Thursday he plans to appeal the decision to the full commission. "We have a right to be heard," he said. "Our reports show the FCC has not audited the telco books for 15 years. … Our belief is the phone companies have been able to manipulate the books, and the FCC has helped them." That has led to "massive cross-subsidies," local phone rate increases and discontinuance of network services, he said. In denying Stevens access, the bureau said that “he does not claim to represent or be employed by any other entity or party to these proceedings” and thus didn’t qualify as an outside consultant or counsel to a participant.
Multichannel video programming distributors began lobbying the FCC heavily on the broadcaster practice of trying to include stations to be named later in retransmission consent talks. The American Cable Association and American TV Alliance cited the issue at meetings with FCC staff, said ex parte filings (see here and here) Tuesday in docket 15-216. ACA said representatives of Atlantic Broadband, Cass Cable, Frankfort Plant Board, Liberty Puerto Rico and Shentel told Media Bureau staff that large broadcast station groups in particular "regularly engage" in bad-faith bargaining practices in retrans consent talks. ACA's meeting cited stations "allowing their affiliated networks to interfere with their right to grant out-of-market retransmission consent to cable operators" and broadcaster demands for carriage of prospective programming. ATVA also brought up prospective programming -- trying to require MVPDs to carry at set terms and rates networks to be named later -- in its meeting with Media Bureau and Office of General Counsel staff. At that meeting, according to ATVA, were representatives of ACA, AT&T, Dish Network, Time Warner Cable and USTelecom. ATVA said it discussed different types of forced bundling, ceding of negotiation rights and after-acquired station licenses. ATVA said it also repeated its arguments the FCC has legal authority to adopt its proposals. NAB didn't comment Wednesday.
T-Mobile's repacking study has “significant flaws,” NAB told staff from the offices of Commissioners Mike O'Rielly, Ajit Pai and Jessica Rosenworcel in meetings Monday, said an ex parte filing in docket 12-268. T-Mobile's “serious underestimation of the time required to repack stations” is partially based on a misunderstanding of the flexibility of broadcast antennas, NAB said. Even though the antennas can be adjusted to receive a range of frequencies, they generally can't replicate a station's coverage on a different channel, and would likely require adjustments and a new transmitter, NAB said: T-Mobile also misjudged the number of tower crews, including crews that don't currently perform broadcast work. “Many of NAB’s members have never even heard of a number of the tower crews T-Mobile claims are qualified to perform broadcast work,” NAB said. “These are not experienced, trusted partners, and broadcasters will not put their most valuable asset in the hands of unproven vendors.” T-Mobile's study (see 160304005) is “outcome-driven, oversimplified and misleading,” NAB said. “Disappointingly, Commission staff meanwhile appears to be focused only on auction expediency.”