USTelecom last week became the first of the major trade associations to challenge the FCC’s net neutrality rules (see 1503230066), but challenges by CTIA and NCTA also are expected, industry officials said. USTelecom is expected to file an additional appeal after the order is published in the Federal Register, which is when the other major trade groups also are expected to file. Net neutrality opponents say there are good reasons the 2015 order, which reclassifies broadband as a common carrier service, will be more broadly challenged than the 2010 order.
Approving net neutrality rules was a little like buying an insurance policy, FCC Chairman Tom Wheeler said Friday in a speech at the Ohio State University School of Law. Wheeler countered arguments by ISPs that there have been very few problems so far and new violations are “very low probability events.” Wheeler said he has “great confidence” the FCC will win any legal challenges to the rules, approved 3-2 Feb. 26. The FCC released a text of his remarks.
Alamo Broadband appealing Monday the FCC net neutrality order in the 5th U.S. Circuit Court of Appeals and USTelecom in the Court of Appeals for the D.C. Circuit (see 1503230066) were examples of circuit shopping for a favorable court to hear the cases, said public interest lawyers in interviews. It's "about circuit shopping,” said Public Knowledge Senior Vice President Harold Feld. “The D.C. Circuit and the 5th Circuit are generally considered to be extremely conservative, anti-regulation, and generally hostile to the FCC.” Litigators won't "forgo any possible advantage, including looking for the forum they think will be most favorable to their appeal,” said Feld.
Alamo Broadband, a wireless ISP in San Antonio, and USTelecom filed what appear to be the first formal appeals in federal court of the FCC Feb. 26 net neutrality order. The challenges were made Monday based on the legal theory that the declaratory ruling portion of the decision became final March 12, so appeals were due Monday. While it's not clear who will lead the industry charge against the order, other challenges are still expected to be filed within 10 days of publication of the order in the Federal Register.
The FCC didn’t say if the process reform task force Chairman Tom Wheeler announced at a House Communications Subcommittee hearing Thursday will consider ideas raised by Commissioner Mike O’Rielly to make texts of items public before commission votes and to tighten changes staff can make through editorial privilege. But two former Democratic commissioners, in interviews Friday, had cautions about making the texts public.
The FCC appears increasingly likely to stick to its latest timetable and begin the TV incentive auction in early 2016, industry officials said Friday. Chairman Tom Wheeler already moved the proposed start of the auction back once, from mid-2015. On Wednesday, White House Council of Economic Advisers Chairman Jason Furman urged the FCC to hold the auction early next year, in his remarks at a Georgetown Center for Business and Public Policy event (see 1503180044). “The success of the last auction is an argument for the importance of the next auction,” he said. Industry observers said a 2016 auction likely was in the cards regardless of the White House push.
NAB filed an emergency petition at the FCC asking the agency to suspend operation of the TV white spaces (TVWS) database system until “serious flaws” are corrected in the system. The petition also asks the FCC to launch a rulemaking to “correct serious design flaws” in the database. The FCC is preparing for the TV incentive auction, which is expected to expand the amount of TV spectrum dedicated to unlicensed use.
Officials at the FCC, FTC and Consumer Financial Protection Bureau (CFPB) as well as state attorneys general work collaboratively all the time, officials from the agencies said Monday night during an FCBA event. The FTC collaborates with the FCC on telemarketing enforcement, and worked with the agency and state AGs on a recent AT&T cramming case, which resulted in $80 million going back to consumers, said FCC Enforcement Bureau Associate Chief Eric Bash. The FCC, FTC and state AGs worked together on a case involving T-Mobile that will result in a minimum of $67.5 million going back to consumers, Bash said. But some counsel representing industry didn’t think agency collaboration is always beneficial. Having multiple agencies oversee a company’s activities creates an “uneven playing field,” because not all companies are regulated by more than one agency, said Michelle Rosenthal, T-Mobile corporate counsel.
The FCC Inspector General’s office will conduct “an actual investigation” into the agency’s net neutrality rulemaking process, said House Oversight Committee Chairman Jason Chaffetz, R-Utah, in the final minutes of his contentious FCC oversight hearing Tuesday. The FCC IG investigation is “on the process” of the net neutrality proceeding and was “evidently” opened in the past couple of days, Chaffetz told reporters after the hearing: “I didn’t know about it till I walked up here.”
The FCC failed to make the full record of its consideration of a new local number portability administrator public in a way that's “consistent” with “lawful administrative procedure,” Neustar officials told Commissioner Jessica Rosenworcel and an aide March 10, said an ex parte filing posted Friday in docket 09-109. The company made the same claims in a letter to the agency March 11 (see 1503110052). The agency should also protect the public if it selects a new administrator by requiring certification by an independent third-party transition manager, and that Telcordia’s parent Ericsson cannot provide LNPA services neutrally, Neustar CEO Lisa Hook, Senior Vice President Leonard Kennedy, Deputy General Counsel Scott Deutchman, Thomas Navin, of Wiley Rein, and Aaron Panner of Kellogg Huber told Rosenworcel and an aide, said the filing. An order on circulation, and slated for a vote at the March 26 commission meeting, would authorize the beginning of contract negotiations with Telcordia (see 1503040053). “It is ironic for the incumbent to claim the lack of ability to comment after filing hundreds of pages of filings,” Telcordia counsel John Nakahata emailed Friday. “Substantial opportunity for public participation has been available, at every stage over multiple years, with some information subject to protective order as is common in FCC proceedings. The current Local Number Portability Administrator is using misinformation and scare tactics again to attempt to stall the LNPA transition and ensure that carriers and consumers keep paying half a billion dollars each year for a database that has been closed to competition for nearly 20 years. The selection process was open and thorough. … We hope that the FCC and the industry will support competition and move forward with the transition. The incumbent has victimized consumers for far too long.”