In the latest much-antiticpated consolidation in the communications industry, Disney confirmed it's buying much of 21st Century Fox. Disney plans to acquire the Twentieth Century Fox Film and Television studios and cable and international TV businesses for some $52.4 billion in stock and assume $13.7 billion of net debt, the buyer said this morning. 21st Century Fox will keep Fox Broadcasting, Fox News Channel and some other cable channels in a "newly listed company that will be spun off to its shareholders," Disney said.

Whether DOJ will approve the deal is a matter of debate among experts, who said a key question before regulators is how to define what New Disney is -- a major player in sports content and movie production, or a much smaller content producer in the growing streaming landscape, we reported last night. "The acquisition will enable Disney to accelerate its use of innovative technologies, including its BAMTECH platform, to create more ways for its storytellers to entertain and connect directly with audiences while providing more choices for how they consume content," Disney said. "The complementary offerings of each company enhance Disney’s development of films, television programming and related products to provide consumers with a more enjoyable and immersive entertainment experience."

Bob Iger will continue as chairman and CEO of Disney through 2021. If 21st Century Fox succeeds in buying the rest of Sky, Disney would also own that asset.

FCC Chairman Ajit Pai said Tuesday at just past 11 a.m. EST he's circulating a draft "restoring internet freedom" order to be voted on at the Dec. 14 commissioners' meeting, abandoning the agency's "failed" 2015 "heavy-handed, utility-style" approach. The draft will be released Wednesday, he said. Already, stakeholders including Free Press and USTelecom began reacting.

"Under my proposal, the federal government will stop micromanaging the Internet," Pai said in a release. "Instead, the FCC would simply require Internet service providers to be transparent about their practices so that consumers can buy the service plan that’s best for them and entrepreneurs and other small businesses can have the technical information they need to innovate." The FTC "will once again be able to police ISPs, protect consumers, and promote competition, just as it did before 2015. Notably, my proposal will put the federal government’s most experienced privacy cop, the FTC, back on the beat to protect consumers’ online privacy," he said.

“Speaking of transparency, when the prior FCC adopted President Obama’s heavy-handed Internet regulations, it refused to let the American people see that plan until weeks after the FCC’s vote," Pai said. "This time, it’ll be different. Specifically, I will publicly release my proposal to restore Internet freedom tomorrow -- more than three weeks before the Commission’s December 14 vote."

Plans by DOJ to sue to block AT&T's buy of Time Warner are "a radical and inexplicable departure" from antitrust precedent, AT&T General Counsel David McAtee said Monday. In a statement, he said vertical mergers routinely get approved "because they benefit consumers without removing any competitor from the market" and there's no reason AT&T/TW should be any different. The telco said it will hold a news conference at 5:30 p.m. EST with CEO Randall Stephenson to discuss the litigation.

The company said it's "confident" a U.S. District Court will reject any such suit and allow the deal. Already, parties were reacting for and against the coming court challenge to the takeover.

Justice didn't comment Monday.

David Redl won a Senate nod to become the next NTIA head.

A voice vote in his favor occurred Tuesday evening. That was shortly after Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, told reporters he believed his concerns about the deal that led Sen. Ted Cruz, R-Texas, to drop his hold on a confirmation vote on Redl “will be resolved soon."

Schatz lifted his hold on Redl, which allowed the Senate vote to go forward.

Redl had been chief telecom policy counsel for the House Commerce Committee.

The FCC approved CenturyLink's planned buy of Level 3, despite Democrats' concerns. Commissioner Mignon Clyburn dissented, we're told. Commissioner Jessica Rosenworcel supported the transaction but said the agency's review was seriously flawed. She approved in part and dissented in part. A commission spokesman said Monday the item was approved by commissioners.

"Instead of using the agency's decades-old merger review standard, it arbitrarily introduces a new one," Rosenworcel said in her statement. "This departure from the traditional merger balancing test should properly be the subject of public notice and comment."

The companies in December asked for FCC OK for the deal worth about $34 billion.

A media ownership reconsideration order that does away with cross-ownership rules, joint sales agreement attribution rules and the eight-voices test, and allows case-by-case waivers of the top-four network rule was circulated to the eighth floor for a vote at the Nov. 16 commissioners' meeting, Chairman Ajit Pai told the House Communications Subcommittee Wednesday. The draft of the item will be made public Thursday. Pai framed the recon order as taking steps to keep the government out of newsrooms: “If you believe as I do that the federal government has no business intervening in the news, then we must stop the federal government from intervening in the news business.” The order also would establish an incubator to encourage diversity in media ownership, and would retain disclosure rules for broadcaster shared service agreements, Pai said. Industry officials told us Wednesday they expect the recon order to be approved with a 3-2 party line vote, and that a court challenge from public interest groups is extremely likely.

Sen. Ted Cruz, R-Texas, lifted his hold on final Senate consideration of David Redl’s nomination as NTIA administrator, Cruz’s office said Monday. Cruz’s longstanding concerns about Redl’s position on the 2016 Internet Assigned Numbers Authority transition prompted several delays of a Senate Commerce Committee vote on Redl. Cruz placed a hold on Senate action after the committee advanced Redl earlier this month on a voice vote.

“After conversations with Mr. Redl and [President Donald Trump's] administration, Sen. Cruz's concerns have been resolved, and he will not prevent the nomination from moving forward,” a spokesman emailed us. The representative confirmed what others on Capitol Hill and in industry said earlier Monday.

President Donald Trump is expected to nominate soon candidates to the three vacant FTC commissioner seats. They are former Consumer Financial Protection Bureau Assistant Director Rohit Chopra; Noah Phillips, chief counsel to Senate Majority Whip John Cornyn, R-Texas; and Paul Weiss antitrust lawyer Joseph Simons, a White House spokeswoman told us. Trump would designate Simons as FTC chairman if the Senate confirms him, the spokeswoman said.

Sen. Orrin Hatch, R-Utah, congratulated Chopra and Simons Wednesday evening in a statement prior to White House confirmation of the picks. Lobbyists had long tipped the three likely nominees and Chopra had received the backing of Senate Minority Leader Chuck Schumer, D-N.Y.

The FTC has two members now, and is led by Republican acting Chairman Maureen Ohlhausen. The agency didn't comment.

The FCC Incentive Auction Task Force will allow mostly broadcasters and some MVPDs to draw initially on $1 billion of the $1.75 billion repacking reimbursement fund, the IATF announced. That’s less than was requested by NAB, Ion and public TV groups. But the estimated cost of the repacking dropped from $2.12 billion to $1.86 billion, IATF said, a number likely to keep changing as repacking progresses. A smaller shortfall would make it more likely that Congress will authorize more funds to make up the gap, broadcast industry officials said.

Also Monday, and as we earlier reported, a bipartisan group of legislators asked FCC Chairman Ajit Pai to not delay the repacking deadline beyond July 3, 2020. Broadcasters have sought more leeway for the FCC to grant exemptions in extreme circumstances. House Republican Conference Chairman Cathy McMorris Rodgers, R-Wash., Rep. Anna Eshoo, D-Calif., and 54 other House members jointly wrote Pai Monday.

With release of the initial repacking reimbursement allocation, broadcasters can submit invoices for repacking choices, and that’s expected to trigger a rush of orders for broadcast equipment and commissions for tower crews, industry officials said. NAB, meanwhile, pledged "to work in bipartisan fashion with policymakers to complete the repack transition as quickly as possible."

Jessica Rosenworcel in her first policy speech since rejoining the FCC as a member Aug. 11 expressed concerns Thursday on Sinclair's buy of Tribune Media, the transition by TV stations to ATSC 3.0 and her agency's course on net neutrality. "I am concerned the Commission is gearing up to approve a transaction that will hand a single broadcast company the unprecedented ability to reach more than 70 percent of American households," she said of the deal worth about $4 billion. She called current 3.0 plans "not a great boon for consumers, it’s a tax on every household" with a TV.

"This new standard is not backwards-compatible" and initially, the "cost of implementing it will be added to consumer cable and satellite bills. In the longer term, it means everyone will need to buy a new television set," Rosenworcel told the U.S. Conference of Catholic Bishops Thursday morning, said prepared remarks. "It’s time for the Commission to go back to the drawing board and find a way to smooth the transition to this new standard in a way that better serves the public interest."

On Sinclair/Tribune, the Democrat cited concerns by Newsmax; the conservative news network has been meeting with FCC officials including Chairman Ajit Pai to share such concerns. "There is opposition across the political spectrum," Rosenworcel said. Though 3.0 leaves much to be excited about, she fears "the agency is
about to rush this standard to market without understanding the consequences for consumers." On net neutrality, she said the regulator "has started a proceeding that tears at the legal foundation of net neutrality."

Representatives of the FCC, NAB and Sinclair didn't comment in the minutes after Rosenworcel's speech.

President Donald Trump asking his 40 million-plus Twitter followers about challenging NBC's "license" drew quick criticism Wednesday morning from Democrats at the FCC and on Capitol Hill. The company owns several FCC-licensed TV stations.

"Not how it works," tweeted Commissioner Jessica Rosenworcel. Sen. Edward Markey, D-Mass., wrote FCC Chairman Ajit Pai "to urge you to maintain" the agency's "charter as an independent agency and withstand any urges from President Trump to harm the news media and infringe upon the First Amendment." NAB CEO Gordon Smith responded that the "founders of our nation set as a cornerstone of our democracy the First Amendment, forever enshrining and protecting freedom of the press. It is contrary to this fundamental right for any government official to threaten the revocation of an FCC license simply because of a disagreement with the reporting of a journalist.”

Following an NBC News report that Trump wants to greatly boost the number of U.S. nuclear weapons (see here), Trump tweeted that "with all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!" He also tweeted that the report was "pure fiction, made up to demean. NBC = CNN!" Trump on the campaign trail had slammed CNN and said he wanted to block AT&T from buying its parent Time Warner, but experts have predicted the deal will get DOJ OK (see here).

The FCC, White House, commission members and NBC didn't comment right away. Comcast owns NBC.

The Senate Commerce Committee cleared NTIA administrator nominee David Redl Wednesday on a voice vote.

But Sen. Ted Cruz, R-Texas, told the committee he intends to place a hold on Redl that will prevent him from getting a Senate floor vote for now. Cruz didn't vote against advancing Redl out of committee. The senator said his longstanding concerns over Redl's position on the 2016 Internet Assigned Numbers Authority haven't been fully resolved.

Senate Commerce had twice delayed a vote on Redl over Cruz's concerns. Chairman John Thune, R-S.D., told reporters Tuesday he planned to hold a vote whether Cruz objected or not.

The Senate confirmed FCC Chairman Ajit Pai for another term Monday, as expected. Pai's new term lasts until June 30, 2021. Votes were continuing at our deadline, but late Monday afternoon he reached the threshold needed.

The confirmation followed a long-expected floor debate. Senate Minority Leader Chuck Schumer, D-N.Y., and other Democrats criticized the chairman for FCC-proposed rescission of 2015 net neutrality rules, Sinclair's proposed buy of Tribune and other controversial policy matters.

Senate Republicans and many communications sector groups strongly backed Pai's reconfirmation.

AT&T asked the Supreme Court to review an appellate court's affirmation of the FCC's 2015 net neutrality order under Communications Act Title II. It challenged the commission's authority to reclassify fixed and mobile broadband internet access service as Title II telecom services, and to reclassify mobile broadband internet access service as a "commercial mobile service," both subject to common carrier regulation. "In 2015, acquiescing to unprecedented White House pressure, the FCC repudiated its prior interpretation and subjected Internet access service to extensive common carrier regulation," said an AT&T cert petition in AT&T v. FCC, appealing the rulings of the U.S. Court of Appeals for the D.C. Circuit (USTelecom v. FCC).

AT&T noted the commission is expected to revisit the issues soon. "If the FCC follows through on its proposal to eliminate common carriage regulation of Internet access, the questions presented in this petition may become moot," it wrote. "If that occurs, we will submit a further brief explaining why the Court should grant certiorari and vacate the court of appeals’ decision under well-accepted mootness principles. But if the FCC does not act within a reasonable timeframe, or if it otherwise maintains its current scheme of common carrier regulation, this Court should grant plenary review of the questions presented in this petition."

Other parties could also file petitions, we're told.

The FCC reasonably looked at precedent when it decided Dish Network held "a disqualifying degree of de facto control" over designated entities SNR and Northstar in the AWS-3 auction, but it didn't give those DEs enough notice that if their Dish relationships cost them their auction bidding credits they would also be denied an opportunity to cure, the U.S. Court of Appeals for the D.C. Circuit ruled Tuesday. Judges Janice Brown, Cornelia Pillard and Stephen Williams, in a docket 15-1330 decision (in Pacer) inked by Pillard, remanded the SNR appeal to the FCC, giving the DEs a chance to negotiate a solution for that de facto control.

Dish had contractual rights to manage almost all the DE business elements, and they "faced enormous financial pressure" to sell to Dish after five years, the D.C. Circuit said. Their auction bids also suggested they were "functioning as arms of Dish" instead of as independent businesses, it said. The FCC argued that letting the DEs have an opportunity to cure creates a moral hazard problem of incentivizing non-compliance with DE rules, but the ruling doesn't require the FCC to permit a cure, the court said: "That choice lies with the FCC."

The agency, Dish and outside counsel for SNR didn't comment. Oral argument in SNR v. FCC was held in September.

No law stops Louisville from requiring one-touch, make-ready on utility poles, a district court ruled in a first-of-its class opinion. A Wednesday opinion (in Pacer) rejected an AT&T lawsuit against the city over a policy to make room for new internet infrastructure on utility poles.

“Louisville Metro has an important interest in managing its public rights-of-way to maximize efficiency and enhance public safety,” wrote U.S. District Court Judge David Hale in Louisville. “Kentucky law preserves the right of cities to regulate public rights-of-way.” The city ordinance allows one third-party contractor to move all incumbent pole riders' equipment in a single go to speed the process of making room for new attachments. AT&T argued the law was pre-empted by state and federal authorities.

AT&T is reviewing the decision and next steps, the company's spokeswoman said. Louisville didn’t comment.

A federal appeals court affirmed a 2015 FCC order aimed at equalizing telco and cable pole-attachment rates to spur broadband. In a Monday decision, the 8th U.S. Circuit Court of Appeals denied a petition for review of the FCC order by power companies that own poles.

The 8th Circuit said the FCC made a reasonable policy decision under the Supreme Court’s Chevron standard of review, so the court must defer to the commission’s expertise: "The FCC sought to eliminate the disparity between the Cable and Telecom Rates in order to avoid subjecting cable providers offering broadband service to the higher Telecom Rate, and to avoid rate disparity between states whose pole attachment rates are regulated by the FCC and those states that had elected to regulate pole attachment rates using the Cable Rate even for telecommunications providers.”

American Electric Power, Ameren and other utilities had challenged the agency. They didn't comment right away, and the FCC declined to comment.

The Senate Commerce Committee tentatively plans an Aug. 2 markup on nominations of FCC Chairman Ajit Pai, commissioner nominees Brendan Carr and Jessica Rosenworcel and other nominees, committee Chairman John Thune, R-S.D., told us Wednesday. Meanwhile, Committee Democrats seek some deal on the FCC nominees that would assuage their concerns about how Senate Commerce would handle a possible Democratic nominee to replace current Commissioner Mignon Clyburn.

Sen. Ed Markey, D-Mass., told us he and fellow Democrats are aiming to work out an agreement with Senate Commerce Republicans on the three FCC nominees “that ensures that if there is a vacancy [in Clyburn's seat], that there's a guarantee” that a successor Democratic nominee “will be confirmed.” Senate Commerce Democrats have been vetting potential candidates to replace Clyburn and hadn't reached a consensus on a preferred nominee, we have reported.

Thune told us “there may be staff-level discussion” occurring about how to handle possible “contingencies” should Clyburn step down, and he hasn't had any “official conversations.” Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, isn't "ready to talk” publicly, he told us.

Clyburn's office had no comment Wednesday on any of her future plans. Her term ended June 30 but she can stay until the end of this Congress unless succeeded by another Democratic commissioner to fill her slot.

Initial demand for the $1.75 billion incentive auction spectrum relocation fund is less than some broadcasters feared yet more than the available money. The FCC said stations and pay-TV providers eligible for reimbursements associated with moving broadcasters' channels have sought a total of $2.12 billion so far, and "we expect to receive additional estimates from MVPDs and a small number of stations."

"Initial estimates that comprise this amount will be subject to a careful review by the Commission and our fund administrator," said Jean Kiddoo, chair of the Incentive Auction Task Force, to whom Friday's statement was attributed. Virtually all affected stations and most MVPDs submitted estimates for reimbursement, an FCC spokesman said. Officials will review those requests to determine what's a reasonable cost, he said.

Some previously predicted the total amount of initial requests for reimbursement would be more than the $2.12 billion. Congress authorized the $1.75 billion.

Though the potential overage was less than some expected, there's still a shortfall if all costs are allowed. The estimated cost of the "‘TV repack’ shows a shortfall of over $365 million in available repacking funds, with a number of television stations and MVPDs not yet included in the total," said NAB CEO Gordon Smith. "That number could grow as stations amend cost estimates due to changed circumstances."

The FCC offers no valid reason for its application of the mixed-use rule to stop local franchising authorities regulating the provision of non-telco services by incumbent cable TV operators, the 6th U.S. Circuit Court of Appeals ruled (in Pacer) Wednesday. Montgomery and Anne Arundel counties, Maryland, and Dubuque, Iowa, challenged 2007 and 2015 agency orders on video franchising rules on several bases. The three-judge panel -- David McKeague, Richard Griffin and Raymond Kethledge, with the decision penned by Kethledge -- granted in part the appeal and denied it in other areas, such as by finding the agency didn't create a regulatory gap and didn't unduly burden small entities.

The decision remanded extending the mixed-use rule to incumbent carriers, which the 6th Circuit deemed arbitrary and capricious. The judges vacated that rule as applied to incumbents. "We have one set of regulators litigating against another. Over the last ten years," three FCC orders "together establish a series of rules governing how local governments may regulate cable companies and cable services," wrote Kethledge. "We agree with some of those criticisms, and thus grant the petition in part and deny it in part."

The agency didn't immediately comment.

The U.S. Court of Appeals for the D.C. Circuit has shot down a petition by NAB, NATOA and the Northern Dakota County Cable Communications Commission seeking a review of the FCC's 2015 order finding the cable industry is effectively competitive. Judges Karen Henderson, Cornelia Pillard and Douglas Ginsburg agreed on the opinion (in Pacer) issued Friday and written by Ginsburg. The court supported the FCC contention that its effective competition finding doesn't rely just on nationwide data since it gave each franchising authority the opportunity to rebut the effective competition presumption -- a procedure that meets the requirement that the agency make the determination of effective competition on the basis of franchise area.

Petitioners' "failure to come forward to rebut that presumption is [evidence] of franchise-specific conditions," the court said. The court also shot down the petitioners' argument that the Communications Act doesn't allow the FCC to terminate an approved effective competition certification in a given franchise without there having been a petition asking it to do so, saying the section of law regarding the revocation of jurisdiction of a franchising authority requires the agency to act in specified circumstances but doesn't limit it "to acting only in those circumstances." Oral argument in the case was in November (see 1611100015). NAB, NATOA and the FCC didn't immediately comment.

The Senate Commerce Committee is delaying a vote on NTIA administrator nominee David Redl at a senator's request, aiming to place it on the docket at the committee's next scheduled markup session after its planned Thursday meeting, a committee spokesman said. He said the senator didn't place a full-blown hold on Redl's nomination, instead seeking “additional time to review information.” Informed sources said Sen. Ted Cruz, R-Texas, sought the delay over his ongoing concerns about implications of the now-completed Internet Assigned Numbers Authority oversight transition.

Cruz's office didn't comment.

FCC General Counsel Brendan Carr got the long-awaited nod to be the third GOP member of the commission, if the Senate confirms him. The White House said tonight that President Donald Trump intends to nominate Carr to the vacant GOP commissioner seat, as expected (see our May 26 report).

This sets up Carr to be paired with Democratic FCC nominee Jessica Rosenworcel, whom Trump nominated earlier this month to rejoin the regulator where she was previously also a member. Senate Commerce didn't immediately comment.

FCC Chairman Ajit Pai said Carr's "expertise on wireless policy and public safety will be a tremendous asset" to the commission, in a statement. Pai noted Carr has worked at the agency for more than five years. When Pai was a regular commissioner, Carr was his aide.

The U.S. Court of Appeals for the D.C. Circuit has rejected public interest groups’ request for an emergency stay of the FCC’s restoration of the UHF discount, and ended the administrative stay of the rule. “Petitioners have not satisfied the stringent requirements for a stay pending review,” said the order, issued Thursday. “This is not very surprising, since stays are rarely granted. However, it is extremely disappointing,” said Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman, who represented Free Press, Prometheus Radio Project, the National Hispanic Media Coalition, Prometheus Radio Project and the other groups in the case. Since the restored discount’s effective date of June 5 passed during the administrative stay, the rule is effective immediately, an FCC spokesman told us. “We are pleased by the court's decision,” the spokesman said. The case will continue on the merits, attorneys told us.

President Donald Trump plans to nominate Jessica Rosenworcel to again be an FCC member, as expected (see our May 26 report), the White House said just before midnight last night. It noted that she was a commissioner from 2012 until January.

The announcement didn't say anything about nominating a third Republican to join Chairman Ajit Pai and Commissioner Mike O'Rielly. The FCC didn't immediately comment.

Public interest lawyer Andrew Schwartzman emailed it's "odd to announce an appointment at 11:49 pm, but this is welcome news at any time of day."

Federal judges struck down FCC intrastate rate caps on inmate calling services and several other provisions of a 2015 ICS order. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit Tuesday also vacated the commission's use of industry-averaged cost data and the imposition of video visitation reporting requirements in Global Tel*Link v. FCC, No. 15-1461. It said FCC exclusion of site commission payments from its cost calculus couldn't stand as currently constituted, and vacated and remanded that decision for further proceedings, but it denied challenges to site commission reporting requirements.

The panel remanded a challenge to the imposition of ancillary fee caps to allow the agency to determine whether it can segregate caps on interstate calls, which it said were permissible, and caps on intrastate calls, which it said were impermissible. It dismissed pre-emption and due process claims as moot. At Feb. 6 oral argument, judges were skeptical of some of the rules (see here).

The court's controlling opinion was written by Judge Harry Edwards and backed by Laurence Silberman, who wrote a concurring opinion. Cornelia Pillard largely dissented.

FCC spokespeople had no immediate comment.

Judges Friday morning rejected incumbent Neustar's challenge to FCC decisions choosing Telcordia (iconectiv) as the next local number portability administrator.

"Petitioner argues that the Commission erred in not properly determining issues relating to the new Administrator’s corporate affiliations. Finding no error in the Commission’s decision, for the reasons set forth below, we deny the petitions," wrote Judge David Sentelle in the opinion (in Pacer) for the three-judge panel of the U.S. Court of Appeals for the D.C. Circuit in Neustar v. FCC, No. 15-1080. The other panel members were Harry Edwards and David Tatel.

Neustar and the FCC didn't comment.

Oral argument was in September: http://www.communicationsdaily.com/article/view?s=113590&id=503623.

House Commerce aide David Redl was picked to be this administration's nominee to head the NTIA, the White House said Tuesday evening. The plan to nominate him was expected, as we previously reported.

Redl would be assistant secretary at the Commerce Department. He's chief counsel for the Republican-led House Commerce Committee and previously worked at CTIA on spectrum and other issues. NTIA is led by the assistant secretary for communications and information, "the President's principal adviser on telecommunications and information policy," said its website. The top two jobs are vacant now.

The 9th U.S. Circuit Court of Appeals will hear en banc an FTC appeal of a panel ruling that threw out the commission's case against AT&T Mobility alleging it inadequately informed customers of its data-throttling program (see 1608290032).

"Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc," said Chief Judge Sidney Thomas in his brief order Tuesday in FTC v. AT&T Mobility, No. 15-16585.

AT&T looks forward to participating in the en banc review, a spokesman said. The agency declined to comment.

A federal court denied appeals of a 2016 panel ruling that upheld the FCC's net neutrality and broadband reclassification order under Title II of the Communications Act. The petitions for rehearing en banc of the June three-judge ruling were rejected by a majority of the active judges of the U.S Court of Appeals for the D.C. Circuit in an order Monday in USTelecom v. FCC, No. 15-1063.

Judges Brett Kavanaugh and Janice Rogers Brown dissented and said they would have granted rehearing. Chief Judge Merrick Garland and Judges Cornelia Pillard and Karen LeCraft Henderson didn't participate.

The FCC and USTelecom had no immediate comment Monday.

The FCC issued a draft rulemaking notice that proposes to reverse broadband Title II reclassification under the Communications Act and eliminate an internet conduct standard, as expected. It's also seeking comment on how to address open internet rules. Chairman Ajit Pai, who previewed the item in a speech Wednesday, put the draft NPRM on the tentative agenda Thursday for commissioners' May 18 meeting.

An accompanying "fact sheet" on "restoring internet freedom" said the notice would: "Propose to reinstate the information service classification of broadband Internet access service and return to the light-touch regulatory framework first established on a bipartisan basis during the Clinton Administration; propose to reinstate the determination that mobile broadband Internet access service is not a commercial mobile service and in conjunction revisit the elements of the Title II Order that modified or reinterpreted key terms in section 332 of the Communications Act and our implementing rules; propose to return authority to the Federal Trade Commission to police the privacy practices of Internet service providers; propose to eliminate the vague Internet conduct standard; seek comment on whether to keep, modify, or eliminate the bright-line rules set forth in the Title II Order; propose to re-evaluate the Commission’s enforcement regime to analyze whether ex ante regulatory intervention in the market is necessary; and propose to conduct a cost-benefit analysis as part of this proceeding."

Also on the tentative agenda are several other draft items: an NPRM proposing to eliminate a broadcast "main studio" rule, a public notice on modernizing media regulation, an NPRM proposing to eliminate a rural telco rate requirement, an NPRM to reduce fixed-satellite service regulation, and an order to amend Part 95 rules covering "personal radio" services. Pai previewed those first two media items at the NAB Show earlier this week in Las Vegas, as we previously reported.

FCC Chairman Ajit Pai said in a speech at the Newseum Wednesday he is circulating to the two other commissioners a rulemaking notice that would reverse the 2015 reregulation of broadband as a Communications Act Title II service, as expected. Pai said he will release the full text of the draft NPRM Thursday afternoon for a vote at the May 18 commissioners’ meeting. The FCC later posted on its website two fact sheets (here and here) and a copy of Pai's Newseum speech, which we attended.

“This will be the beginning of the discussion, not the end,” Pai said. Some urged the FCC to reverse Title II immediately through a declaratory order, but that's not the best approach, he said. “I don’t believe that’s the right path forward,” he said. “This decision should be made through an open and transparent process in which every American can share his or her own views.”

Pai said he's proposing to eliminate the “so-called internet conduct standard” contained in the 2015 rules. The standard “gives the FCC a roving mandate to micromanage the business practices of internet companies,” he said. After that order was approved, then-Chairman Tom Wheeler was asked what the standard meant, Pai said. “His answer was, ‘We don’t really know what it means and we don’t know where things go next,’” Pai said. “I have never heard a better definition of regulatory uncertainty.”

The NPRM will also seek comment on how to approach the bright-line rules approved in 2015, Pai said. “You won’t just have to take my word about what is in the notice of proposed rulemaking,” he said. “I will be publicly releasing the entire text of the document tomorrow afternoon and this, too, will be a marked change from what happened in 2015.”

The easiest path was to do nothing to reverse Title II, but “doing nothing was nothing doing,” Pai said. “We cannot stick with regulations from the Great Depression that were meant to micromanage Ma Bell. Instead, we need rules that focus on growth and infrastructure investment, rules that expand high-speed internet access everywhere.”

Commissioner Mike O’Rielly, who was also at the event, spoke after Pai, leaving little doubt how he will vote on Title II. “I’m actually really excited to be here, never knew this day was going to come,” he said. “Today, my colleague and I announce the beginning of a process to free the internet from the terrible constraints of common-carrier regulation now imposed on America’s broadband providers.” After two years of experience, “it is clear this archaic regime never should have been imposed in the first place,” he said. The 2015 rules were based on “hyperbole, rent seeking, imaginary problems and liberal ideology,” he said. At the NAB Show in Las Vegas the day before, O'Rielly repeated in a brief interview and on the show platform that he wants to junk the ban on paid prioritization and the general conduct standard springing from the current net neutrality regulations.

A total of 50 wireless carriers bid $19.8 billion in the TV incentive auction, the FCC said Thursday. The FCC said 175 broadcasters elected to participate in the auction -- of those, 30 stations will get money for agreeing to move to a lower channel and 133 others will give up their licenses. The FCC also announced new channel assignments, and effective dates, for 957 nonwinning stations that must change channels as a result of the auction, with the first phase of stations set to relocate by Nov. 30, 2018. The largest payout for a single TV station was $304 million.

Among the bigger winners, T-Mobile won 1,525 licenses for $8 billion, according to results. Dish Network wins 486 licenses for $6.2 billion through ParkerB.com Wireless and Comcast gets 73 blocks and $1.7 billion in licenses through CC Wireless. AT&T was a smaller player, winning 23 licenses for $910 million. The largest noncommercial education station payout was $194 million, the FCC said. Also, 36 winning stations received more than $100 million, and 11 noncommercial stations received more than $100 million.

“The conclusion of the world’s first incentive auction is a major milestone,” Chairman Ajit Pai said in a statement. “Consumers are the real beneficiaries, as broadcasters invest new resources in programming and service, and additional wireless spectrum opens the way to greater competition and innovation in the mobile broadband marketplace.”

The agency said the auction brought in $7.3 billion for federal deficit reduction. The auction also cleared 70 MHz of spectrum, the “largest amount of licensed low-band spectrum ever made available at auction” and makes 14 MHz available for wireless mics and unlicensed use, the commission said.

Among incentive auction results drawing analyst interest shortly after the FCC identified winning bidders were Dish Network winning 486 licenses for $6.2 billion through ParkerB.com Wireless and Comcast getting 73 blocks and $1.7 billion in licenses through CC Wireless. Our earlier bulletin incorrectly listed the winning totals for those two companies.

A total of 50 wireless carriers bid $19.8 billion in the TV incentive auction, the FCC said Thursday. Among other big winners, T-Mobile won 1,525 licenses for $8 billion, according to results. AT&T was a smaller player, winning 23 licenses for $910 million. FCC Chairman Ajit Pai called the conclusion of the first-such auction a "major milestone."

"There are three big surprises here," MoffettNathanson's Craig Moffett emailed investors. "Comcast bought less than expected, Dish Network bought more, and Verizon bought nothing at all."

Other analysts said similar. Dish spent twice what New Street Research expected, Comcast half as much, and T-Mobile about what the analyst firm expected, wrote Jonathan Chaplin. "We would expect investors to react negatively to the DISH spend and positively to the Comcast spend; all else should be in-line." Comcast stock was little changed, while Dish was down 1.7 percent to $62.88 at around 3 p.m.

Commerce Secretary Wilbur Ross confirmed Thursday that AT&T was selected as head of a team to build the national communications network for first responders (see here and here), during an event this morning (see here). AT&T will spend $40 billion to build and operate the network, creating 10,000 U.S. jobs, said CEO Randall Stephenson. The deal is for 25 years. Motorola Solutions confirmed it's involved, and AT&T identified others, too, which a FirstNet spokeswoman confirmed to us are participating.

"FirstNet will provide 20 MHz of high-value, telecommunications spectrum and success-based payments of $6.5 billion over the next five years to support the Network buildout," said the network authority. "AT&T will spend about $40 billion over the life of the contract to build, deploy, operate and maintain the network ... AT&T will connect FirstNet users to the company’s telecommunications network assets."

"AT&T has assembled a team that includes Motorola Solutions, General Dynamics, Sapient Consulting and Inmarsat Government," the carrier said in its own announcement. Motorola Solutions "is pleased to be a key player in the team selected by FirstNet to build the nationwide public safety broadband network," a company spokeswoman emailed us.

“This is an historical event for public safety,” said FirstNet Vice Chairman Jeff Johnson. “This is not done” and execution will be critical, he said.

The department moved quickly after the FirstNet board Tuesday voted to authorize FirstNet CEO Mike Poth to award a contract (see 1703280013). Ross tied the launch of FirstNet back to problems revealed during the Sept. 11, 2001, attacks. FCC Chairman Ajit Pai and House Commerce Chairman Greg Walden, R-Ore., and other key members of Congress were also among those at the department for the announcement.

FCC Chairman Ajit Pai said he would seek to undo the agency's process for designating Lifeline broadband providers (LBP). Pai said Wednesday he supported including broadband in the Lifeline low-income subsidy program but that the federal LBP process bypassed state authority to designate eligible telecom carriers (ETCs). He noted 12 states had mounted a legal challenge to the LBP process, in a case that the U.S. Court of Appeals for the D.C. Circuit has put on hold while the FCC considers its course.

"It would be a waste of judicial and administrative resources to defend the FCC’s unlawful action in court," he said in a statement. "I am therefore instructing the Office of General Counsel to ask the D.C. Circuit to send this case back to the Commission for further consideration. And the FCC will soon begin a proceeding to eliminate the new federal designation process."

In the meantime, the chair said the Wireline Bureau shouldn't address LBB applications on delegated authority. He said more than 3.5 million Americans already were receiving subsidized broadband service through the Lifeline program from 259 ETCs. Commissioner Mike O'Rielly's office declined comment. Commissioner Mignon Clyburn's office didn't immediately comment.

The FirstNet board Tuesday formally approved the selection of a team to build the national network for first responders, as we previously reported was likely to occur today. FirstNet didn’t announce that AT&T had won the contract, though that choice is widely expected. The contracting process and resulting court case remain shrouded in secrecy amid federal contracting rules and a potential appeal.

“#FirstNetBoard has unanimously passed resolution 84 authorizing CEO Mike Poth to move forward with contract award,” FirstNet tweeted. The board apparently rejected a proposal at its last meeting on March 14 to delegate to staff the authority to make an award without further board action, we reported previously. The U.S. Court of Federal Claims recently rejected Rivada Mercury’s protest of its exclusion from the selection process, which allowed FirstNet to move forward on making a selection months later than expected. An AT&T spokesman didn't immediately comment Tuesday morning.

“We’ve done a lot to get to today,” said FirstNet Chairwoman Sue Swenson during an ongoing conference call. FirstNet is ready and will start its “100-day plan” to start the launch of the network, Swenson said. The board is “more than ready and more than anxious to get started,” she said. She called the vote a “milestone moment.”

Staff in several FCC bureaus, sometimes acting jointly, undid numerous actions from the administration of then-Chairman Tom Wheeler. All withdrawn Friday afternoon: a report raising questions on zero rating practices of AT&T and Verizon; an inquiry about Comcast's video streaming practices; staff guidance that could have placed additional standards of review on mergers and acquisitions of TV stations involving some resource and other sharing pacts; actions on TV station political advertising that highlighted a need for disclosure of certain information; and a report on E-rate modernization. Other actions effectively canceled were on cybersecurity and 5G device security.

Many of the actions had been taken in the final days of Wheeler's tenure, which ended Jan. 20. Many had been subject to criticism, with some deeming several of them "midnight" actions taken soon before FCC control shifted to Republicans with Donald Trump's swearing-in as president that day. See www.communicationsdaily.com/featured. Chairman Ajit Pai has been moving the agency in a different direction.

“In the waning days" of the last administration, FCC bureaus and offices "released a series of controversial orders and reports," said a statement to us from Pai. "In some cases, Commissioners were given no advance notice whatsoever of these midnight regulations. In other cases, they were issued over the objection of two of the four Commissioners. And in all cases, their release ran contrary to the wishes expressed by the leadership of our congressional oversight committees." The last-minute actions "are being revoked," he said.

Mignon Clyburn, the sole Democratic commissioner, called the moves a "Friday news dump." Her office unsuccessfully sought more than the allotted two days to review all the items, she said. "Multiple Bureaus retract -- without a shred of explanation -- several items released under the previous administration that focus on competition, consumer protection, cybersecurity and other issues core to the FCC’s mission," she added.

Already Friday afternoon, some entities that were subject to the now-abandoned actions cheered, including AT&T and Verizon. Commissioner Mike O'Rielly said the move on zero rating "recommits to permissionless innovation."

In an FCC pilot begun Thursday morning, the agency will release the full text of draft items before commissioners vote on them, when they're slated for consideration at members' monthly public meetings. Chairman Ajit Pai did just that, releasing a draft NPRM on broadcasters' envisioned move to next-generation ATSC 3.0 TV, plus an order on AM revitalization, of which he has been a major proponent.

"If successful," Pai said of the test, it "will become a commission practice -- one that will give the public much more insight into the Commission’s activities." The drafts he issued are tentatively set for a vote at commissioners' Feb. 23 meeting.

Agency practice has been to not issue full texts until they're approved and then released. Pai discussed the changes at a news conference with reporters, which ended about 10:30 a.m. Thursday.

The next-generation TV item would "propose to authorize television broadcasters to use" the ATSC 3.0 standard "on a voluntary, market-driven basis, while they continue to deliver current-generation" DTV service using ATSC 1.0, said the draft. The radio order would open an application window for translators.

NAB applauded moving on the draft items and Pai's overall move. "Chairman Pai deserves credit for departing from the past practice of both Republican and Democratic-controlled Commissions, and publicly releasing the proposals early to inject greater transparency in the FCC rulemaking process," said an NAB spokesman. "This action will provide greater clarity for stakeholders and greater trust from the public in dealing with the FCC." Pai's statement is here, the ATSC 3.0 draft is here and the AM draft is here.

Both the drafts said at the bottom of the first page: "This document has been circulated for tentative consideration by the Commission at its February open meeting. The issues referenced in this document and the Commission’s ultimate resolution of those issues remain under consideration and subject to change. This document does not constitute any official action by the Commission. However, the Chairman has determined that, in the interest of promoting the public’s ability to understand the nature and scope of issues under consideration by the Commission, the public interest would be served by making this document publicly available."

​President Donald Trump’s immigration executive order Friday blocking citizens of seven Muslim-majority countries from entering the U.S. for 90 days awakened an outcry in the tech industry over the weekend. The order "hurts our nation -- both morally and economically -- and runs counter to our country's long-standing values,” CTA President Gary Shapiro said in a Sunday statement. CTA understands the president’s “superseding role” in protecting the U.S. from terrorism, Shapiro said. But "blocking access en masse of employees of U.S. companies who are lawful visa and green card holders based on religion or national origin raises constitutional issues.”

Trump’s order “preventing the best and brightest from entering our country undercuts one of America's competitive advantages,” said Shapiro. “Immigrants are vital to our nation's economic vitality,” he said, citing estimates that 40 percent of Fortune 500 companies “were founded by immigrants or their children.” Though the tech industry will work with the Trump “administration to enhance our national security, we must do so in a way that does not undercut our unique economic dynamism and global moral leadership," he said. Shapiro emailed us Sunday to decline further comment, saying he would let the statement speak for itself.

A day earlier, the Information Technology Industry Council called on the Trump administration to “provide more clarity" to the order, including "defining the process for allowing vetted employees back into the country.” The order “injected a tremendous amount of uncertainly for a wide range of people, including employees within the tech sector,” said President Dean Garfield in a Saturday statement. His group is “troubled by reports” that even green card holders from the seven banned countries “are now unable to return from abroad and many more of our employees, who have been previously vetted and who love and contribute greatly to our nation, could be barred from returning to the U.S. simply because they visited their families abroad, even in cases of emergencies,” Garfield said.

Internet Association President Michael Beckerman in a Saturday statement said Trump’s order “has troubling consequences." Under the order, "legal immigrant employees” in many industries “will not be able to return back to their jobs and families in the U.S.,” said Beckerman. “Their work benefits our economy and creates jobs here in the United States. We maintain our support for immigration reform and will work with Congress and the Trump Administration on this important issue for families and our economy.

As an “immigrant and as a CEO,” Satya Nadella has “experienced and seen the positive impact that immigration has on our company, for the country, and for the world,” the Microsoft chief said in a Saturday LinkedIn post. “We will continue to advocate on this important topic.” His post accompanied an email that Chief Legal Officer Brad Smith sent Saturday to the Microsoft workforce in which he said the company was aware of at least 76 employees who are citizens of the seven banned countries “and have a U.S. visa and are therefore affected by this new Order.”

The White House didn't reply right away to an email and a call seeking comment.

In one of Ajit Pai's first steps as chairman, the FCC removed from circulation some draft items, including at least two high-profile orders. Draft actions on updating broadband data services (BDS) rules and on making it easier for pay-TV customers to connect to subscription video services without an operator-provided set-top box were removed from consideration Friday afternoon. That's according to our review of the circulation list and an interview with an FCC spokesman Saturday.

The BDS and set-top draft rules were opposed by some FCC and congressional Republicans, and some Democrats had concerns on items like the unlock-the-box proceeding. Those items were previously removed from commissioners' meeting agendas after they were divisive under then-Chairman Tom Wheeler. House Commerce Committee Republicans overseeing the agency asked Pai a few days ago to end the set-top box proceeding by closing the docket.

"This is the first step in assuring the rights of content creators so they can invest in the programming we all enjoy," said House Communications Subcommittee Chairwoman Marsha Blackburn, R-Tenn., in a statement to us Saturday. She and Commerce Committee Chairman Greg Walden, R-Ore., led the letter to Pai, signed by all GOP members of the Communications Subcommittee. "It's time we let industry innovate, free from the heavy hand of big government, and deliver consumers the services they want at a price they deserve," Blackburn said Saturday.

The FCC TV incentive auction won't total more than about $10 billion, according to just-released agency figures. The reverse auction clearing cost for Stage 4 is $10.05 billion, said the FCC Public Reporting System. That's down from approximately $40 billion that previously would have been needed to close the auction in the past stage. Some we previously canvassed expected a major drop from that $40 billion figure, but not all the way to $10 billion.

One expert said in an interview Friday afternoon that this is less than he expected. "I would expect that there will be enough interest among wireless bidders to close the incentive auction" in the coming Stage 4 forward auction, said BIA/Kelsey Chief Economist Mark Fratrik. Another expert said the same.

Next up is the forward auction portion of Stage 4. This is where wireless carriers will bid for the TV spectrum, which in total it would cost about $10 billion for those companies to purchase for wireless/broadband.

Stage 4, should the auction conclude, also would clear less spectrum than the previous stage. The ongoing stage if it were the last stage would clear 84 MHz, versus 108 MHz for the unsuccessful Stage 3, noted an FCC Incentive Auction Task Force spokesman in an interview Friday. He declined further comment.

Rep. Mike Doyle, D-Pa., will lead Democrats on the House Communications Subcommittee this Congress, replacing longtime ranking member Rep. Anna Eshoo, D-Calif. Commerce Committee Democrats approved Doyle’s position by voice vote Thursday during a closed-door meeting in the Rayburn House Office Building that lasted about 50 minutes. Doyle told us he wants to prevent the incoming Republican FCC from rolling back regulations from recent years. He confirmed he received the position in a unanimous voice vote.

“We’re going to be looking to protect the gains that we made in the open internet order,” Doyle said in an interview Thursday. “We’re going to continue to fight for competitive telecommunications policies. That’s going to be very important. Those are big issues, and we don’t want to move backward from that.”

Doyle has backed business data services overhaul for years and said it’s a disappointment that the FCC didn't manage to move forward on such a revamp in 2016. “It seems like it’s been a lifetime battle for me,” Doyle said. “And we came so close.”

Rep. Marsha Blackburn, R-Tenn., was named the subcommittee’s chairwoman last week. “I’m sure there are going to be some things we can work on,” Doyle said of possible bipartisanship.

Eshoo didn't seek the position and will remain a subcommittee member. “Senior members like myself must consider the best interest of our Party and our need to develop leaders for the future,” Eshoo said in a statement. “In other words, it’s time to walk my talk. I therefore am not seeking to be re-elected Ranking Member of the Communications and Technology Subcommittee. Instead, I’m asking to retain a seat on the Subcommittee and to hopefully join the Health Subcommittee where I worked for many years.”

Eshoo declined comment on her decision as she was leaving the meeting. “The press release says everything,” she told us.

Rep. Marsha Blackburn, R-Tenn., will now chair the House Communications Subcommittee, according to Capitol Hill and industry sources tracking the process. She’s a key net neutrality opponent and ally to President-elect Donald Trump, serving as an executive vice chairwoman on his transition team. She was expected to have the edge in the contest for the position due to her influence within the House GOP caucus, although her rhetoric has concerned some public interest advocates.

The Commerce Committee is expected to announce Blackburn’s position later Friday. An initial accounting for the subcommittee leaders circulated to at least some within industry earlier and was confirmed by a Capitol Hill source. The choices were not seen as certain leading up to the final listing this week. Rep. Bob Latta, R-Ohio, was initially believed to be seizing the gavel at one point.

The choices fell to new Commerce Committee Chairman Greg Walden, R-Ore., who led the telecom subcommittee for six years and focused on issues including federal spectrum use, FCC process overhaul and media ownership. A Walden spokesman didn't comment.

Latta will replace Rep. Michael Burgess, R-Texas, as chairman of the Commerce Manufacturing and Trade Subcommittee, which has held oversight of the FTC and certain data security issues. Latta has focused on the IoT and rural broadband and told us late last year he expected cybersecurity and issues surrounding data to be prominent this Congress. Burgess will now chair the Health subcommittee, a position he was believed to desire for many months. Rep. John Shimkus, R-Ill., a staunch telecom rewrite advocate who unsuccessfully fought Walden for the full committee seat in November, was earlier viewed as one of the few lawmakers who might overpower a bid from Blackburn for the Communications position. He will stay as chairman of the Environment Subcommittee, which he can do despite six-year chairmanship term limits if jurisdiction is tweaked. Rep. Fred Upton, R-Mich., the former Commerce chairman, will chair the Energy Subcommittee. Rep. Tim Murphy, R-Pa., will retain the gavel of the Oversight Subcommittee.

“I think you will see us address a net neutrality [legislative] fix early in the next Congress,” Blackburn told the Free State Foundation last month, calling a “starting point” the draft legislation from Senate Commerce Committee Chairman John Thune, R-S.D., Upton and Walden. That draft proposed codifying net neutrality rules into law while nixing reliance on Communications Act Title II reclassification of broadband. She also expects a focus on media ownership, spectrum policy and data security, she said. Blackburn told us this summer she backs overhaul of the 1996 Telecom Act, also a priority for Walden: “I would hope that we can do a couple of things with the Communications Act rewrite and one of ’em would be to clear up the net neutrality situation. I think people want a little bit of clarity. And the second thing is to make certain that the FCC understands where their lanes are and that they’re in those lanes.”

President Barack Obama sent the renomination of Jessica Rosenworcel to the Senate, for its new session that began Tuesday. Her last day as an FCC member was also Tuesday. Senate Commerce Committee Chairman John Thune, R-S.D., whose committee would need to OK Rosenworcel before the full Senate could vote on her reappointment, had signaled her imminent return to the agency was unlikely.

Among Obama's nominations, the White House said Wednesday late afternoon, was Rosenworcel, "to be a Member of the Federal Communications Commission for a term of five years from July 1, 2015. (Reappointment)."

Outgoing FCC Chairman Tom Wheeler welcomed the move, said a statement from an FCC spokesman.