Sen. Dan Sullivan, R-Alaska, is lifting his hold on Senate confirmation of FCC Commissioner Brendan Carr, an aide told us Thursday. The end of Sullivan's hold, in combination with the end of a separate hold on Carr by Sen. Joe Manchin, D-W.Va., could clear the way for the Senate to approve Carr and Democratic FCC nominee Geoffrey Starks in an end-of-the-year package that may come as soon as Thursday afternoon. Senate leaders have been working since June to advance the nominees as a pair.

Senate Commerce Committee Chairman John Thune, R-S.D., told us Wednesday there was a chance that if an agreement could be reached with Sullivan, Carr and Starks could be confirmed this week, along with a range of President Donald Trump's other nominees. A Commerce Committee spokesperson didn't comment.

Sullivan moved to lift the hold because the FCC had assuaged his concerns about the USF Rural Health Care Program, which led him to publicly declare his hold in September. Manchin said Wednesday he was planning to lift his hold after reaching a solution with the FCC that addressed his concerns about the commission's decision to suspend the window for responding to Mobility Fund Phase II challenges while it investigates whether wireless carriers submitted incorrect broadband coverage maps.

Outgoing Senate Commerce Committee Chairman John Thune, R-S.D., has decided to seek the chairmanship of the Communications Subcommittee, a Senate GOP aide told us Thursday. Thune, who was elected Wednesday as the chamber's majority whip, had been debating whether to seek the gavel of Senate Communications or Senate Surface Transportation.

Thune is relinquishing the Senate Commerce chairmanship at the end of this Congress. Senate Communications Chairman Roger Wicker, R-Miss., is widely viewed as likely to succeed him in that role.

Wicker, if selected to lead Senate Commerce, ultimately will decide who leads the subcommittees.

At least four leaders of telecom and tech-focused congressional committees and subcommittees lost in Tuesday’s elections, which resulted in split control of Capitol Hill. Democrats had a net gain of at least 26 seats in the House and had won at least 220 seats. Republicans expanded their Senate majority, seeing a net gain of at least two seats. Three other seats remained undecided Wednesday morning, but the GOP will have at least 51 seats. Results are according to at least two major media outlets for each race.

Republicans’ gains included Senate Homeland Security Committee ranking member Claire McCaskill (D), who lost her seat to GOP Missouri Attorney General Josh Hawley. Hawley has been a hawk on tech antitrust and privacy issues.

Senate Commerce Committee ranking member Bill Nelson, D-Fla., was trailing Republican Gov. Rick Scott by fewer than 35,000 votes. Scott led criticisms over carrier efforts to restore service after Hurricane Michael.

Two other telecom-focused Republicans also won Senate seats. House Communications Subcommittee Chairman Marsha Blackburn (R), as expected, won an open Tennessee Senate seat over Democratic former Gov. Phil Bredesen. Sen. Heidi Heitkamp, D-N.D., lost her seat to Rep. Kevin Cramer (R). Cramer has been active on rural broadband issues as a member of House Communications.

Sen. Dean Heller, R-Nev., lost his seat to Rep. Jacky Rosen (D). Sen. Ted Cruz, R-Texas, defeated Rep. Beto O’Rourke (D) to retain his seat.

Three top Republicans on House telecom-related subcommittees also lost: House Communications Vice Chairman Leonard Lance of New Jersey, House Homeland Security Communications Subcommittee Chairman Dan Donovan of New York and House Appropriations Commerce Subcommittee Chairman John Culberson of Texas. Democrat Lizzie Fletcher won against Culberson, whose House Appropriations subcommittee oversees funding for NTIA. Democrat Max Rose defeated Donovan. Democrat Tom Malinowski defeated Lance.

Rep. Steve Chabot, R-Ohio, defended his seat against Democratic challenger Aftab Pureval. Chabot is expected to compete against Rep. Doug Collins, R-Ga., for the top GOP seat on the House Judiciary Committee. Rep. Will Hurd, R-Texas, who has been active on tech, artificial intelligence and quantum computing, defeated Democratic candidate Gina Ortiz Jones. Democrat Jason Crow defeated Rep. Mike Coffman, R-Colo., the only House Republican thus far to support a Congressional Review Act resolution to overturn the FCC’s 2017 order rescinding 2015 net neutrality rules.

President Donald Trump signed a memo Thursday directing Commerce Secretary Wilbur Ross to work with others in the administration and with industry to develop a comprehensive national spectrum policy. Trump also rescinded two Obama administration-era spectrum policy memos. The Trump memo requires all government agencies to report to the Commerce Department on current and anticipated spectrum requirements, officials said.

The White House Office of Science and Technology Policy will report on emerging technologies and their demand for nonfederal spectrum and on research and development aimed at promoting spectrum efficiency, officials said. Ross also will issue a report on existing and planned efforts for repurposing spectrum.

The administration’s goal is maintaining U.S. leadership “whether in 5G or any future technology,” said Michael Kratsios, OSTP deputy assistant to the president-technology policy.

The memo creates a Spectrum Strategy Task Force within the Executive Office of the President, Kratsios said. The task force will work with NTIA, Ross and the FCC “in coordinating implementation of this memo,” Kratsios said.

Senators passed the Music Modernization Act Tuesday evening. The vote on S-2823 was unanimous, as expected, and by voice vote.

Sens. Ron Wyden, D-Ore., and Chris Coons, D-Del., had just crafted another last-minute compromise on the comprehensive music copyright legislation. It would grant full federalization to pre-1972 recordings, providing the same rights and obligations as post-72 recordings and exempt the public performance right for terrestrial radio. It would last for 95 years.

“For the modern U.S. Senate to unanimously pass a 185-page bill is a herculean feat," and it would move toward a "modern music licensing landscape better founded on fair market rates and fair pay for all," said RIAA President Mitch Glazier. He noted the bill included the Classics Act with the pre-72 rights.

The legislation also includes "comprehensive and publicly available audits of the MMA’s new Mechanical Licensing Collective and ensuring that the Collective uses best practices to find the owners of unclaimed royalties," said the Content Creators Coalition and MusicAnswers. SiriusXM, which earlier had concerns about some aspects of MMA, didn't comment.

A third tranche of tariffs, on $200 billion worth of Chinese imports, takes effect Sept. 24 at a 10 percent rate, rising to 25 percent after Jan. 1, said President Donald Trump Monday evening. The administration will “immediately pursue” a fourth batch of duties, on $267 billion of additional imports, if China retaliates against the third installment, said Trump. "China has been unwilling to change its practices.”

The administration removed some additional subsets of products within certain tariff lines, sparing smartwatches and Bluetooth devices imported to the U.S. under the broad 8517.62.00 tariff code, said government officials.

Many tech and telecom groups oppose such penalties. See our Sept. 13 report here.

Sen. Dan Sullivan, R-Alaska, placed a hold on FCC Commissioner Brendan Carr’s reconfirmation for a full five-year term ending in 2023 over the senator’s continued concerns about the agency’s handling of the USF Rural Health Care Program under Chairman Ajit Pai. Confirmation of Carr and FCC nominee Geoffrey Starks has been stalled repeatedly in recent months. Senate Commerce Committee Chairman John Thune, R-S.D., and others point to larger political factors as the major hurdle.

“I have major concerns” with how the FCC handles RHC given it's negatively affecting Alaskans, Sullivan told us Wednesday night: “And I’m not going to remove” the hold on Carr “until I get a commitment from [Pai] and his team on a plan to fix” ongoing problems with the program. Sullivan voiced frustrations on RHC during Senate Commerce’s August FCC oversight hearing, citing “underwhelming” response to problems with Alaskans’ 2017 applications to the program.

Sullivan told us he hasn't "heard a damn thing” from Pai since the hearing that effectively addresses his concerns.

The FCC and Carr’s office had no comment.

A wireless infrastructure order set for a vote at the FCC's Sept. 26 commissioners' meeting takes a “balanced approach” by allowing local governments to retain some autonomy over their reviews of small-cell deployments in rights of way while also streamlining the process, Commissioner Brendan Carr said Tuesday in a speech at the Indiana State House. NATOA officials raised concerns about the coming action during their meeting last week, we previously reported.

The draft order will “tailor” the shot clocks for local reviews of small-cell deployment proposals, setting a 60-day deadline for projects on existing structures and a 90-day deadline for new infrastructure construction, Carr said. The order doesn't propose a deem-granted remedy, which “many local governments opposed on the grounds that it would allow deployments without their authorization,” he said.

The draft would reaffirm local control over wireless infrastructure reviews by disturbing few of the provisions of small-cell bills that 20 state legislatures enacted, Carr said. The order would preserve local governments' right to aesthetic reviews of projects if they are reasonable, nondiscriminatory and announced in advance, he said. The draft allows localities to impose cost-based fees on deployments but requires them to “reasonably approximate” a local government's costs for the project, Carr said.

NATOA didn't comment immediately, and nor did the office of FCC Commissioner Jessica Rosenworcel.

A three-judge panel of the 8th U.S. Circuit Court of Appeals vacated one part of the FCC’s decision easing regulation of the business data service rates of major incumbent telcos. The St. Paul, Minnesota-based panel heard the case in May and asked few questions then (our report here). The court’s sole quibble was on TDM transport.

“We grant the petitions of the CLEC Petitioners on the notice issue, in part, vacating solely the portions of the final rule affecting TDM transport services and remanding them to the FCC for further proceedings,” the 8th Circuit ruled Tuesday. “We otherwise deny the petitions of the CLEC Petitioners on the remainder of the notice issue.” The court denied the petitions of ILECs and CLECs “in all other respects.”

Judges Bobby Shepherd, Michael Melloy and Steven Grasz heard the case.

Various litigants didn't comment right away on the ruling.

President Donald Trump directed U.S. Trade Representative Robert Lighthizer to consider raising the third round of Trade Act Section 301 tariffs to 25 percent from 10 percent, the USTR and others confirmed Wednesday afternoon.

That prompted the USTR to extend to Aug. 13 the deadline for filing requests to speak at four days of hearings still scheduled to begin Aug. 20. USTR also extended by six days to Sept. 5 the deadline for filing post-hearing rebuttal comments.

The potential increase is because the tariffs haven't led China to overhaul allegedly unfair intellectual property practices. The Chinese embassy in Washington didn't comment right away.

“The Trump Administration continues to urge China to stop its unfair practices," said Lighthizer. "Regrettably, instead of changing its harmful behavior, China has illegally retaliated." Potentially boosting the duty rate would give the U.S. administration "additional options to encourage China to change its harmful policies and behavior and adopt policies that will lead to fairer markets and prosperity for all of our citizens," he added.

New York Public Service commissioners voted 3-0 to revoke the state's 2016 conditional approval of Charter Communications’ buy of Time Warner Cable, directing the acquirer to submit a transition plan within 60 days. At a Friday special session, commissioners also voted 3-0 for an order directing PSC counsel to begin a civil enforcement case against Charter in New York Supreme Court seeking civil financial penalties for past failures.

The PSC denied the company's requests to reconsider the agency’s previous orders saying Charter missed broadband deployment targets that were conditions of the transaction OK. The cable ISP argues it exceeded broadband targets. At the meeting, the PSC said the company inappropriately counted passings in New York City when the commission wanted the company to count passings in less densely populated areas.

Charter's Spectrum brand "has extended the reach of our advanced broadband network to more than 86,000 New York homes and businesses since our merger agreement with the PSC," Charter said in a statement. The operator and its employees "remain focused on delivering faster and better broadband to more New Yorkers, as we promised,” it added.

The U.S. Court of Appeals for the D.C. Circuit upheld FCC reinstatement of the UHF discount, denying anti-consolidation groups’ petition for review because they didn’t show sufficient standing, according to a judgment (in Pacer) issued Wednesday morning. Some had thought the FCC might lose the case, based on oral argument, but standing was always a question.

Petitioners including Free Press and Prometheus Radio Project had argued members would be adversely affected by the media consolidation the restored discount would permit, but their proof was insufficient, a three-judge D.C. Circuit panel ruled. “The record did not contain -- and petitioners’ initial submissions failed to provide -- evidence that any member of any petitioner organization is a viewer in an affected market or otherwise stands to be injured by the identified consolidation.”

The decision "does not bear on the validity of the Trump FCC decision to reimpose that rule," responded Cheryl Leanza, policy adviser to the United Church of Christ, Office of Communications, another challenger. "The D.C. Circuit's per curium decision was on a technical point, unique to the D.C. Circuit, that standing (i.e. concrete and specific harm to petitioners) must be shown in petitioners' initial filing. ... While disappointing, this decision does not bear on the other cases pending and to come if the Commission's decision-making process continues down its present path of arbitrary, capricious and extra-legal decision-making."

FCC spokespeople didn't comment right away.

With FCC members having unanimously approved a hearing designation order on Sinclair buying Tribune, the agency said Wednesday evening that the HDO will be released the next day. That was despite the companies changing their plan earlier Wednesday. Some of the divestitures that would have gone to broadcasters linked to Sinclair would instead be sold to others once buyers were found.

Many industry officials told us that if the HDO is issued, they think the merging companies might abandon the deal altogether.

The two companies that own TV stations didn't comment right away after business hours.

The draft FCC hearing designation order for an administrative law judge hearing on issues involving some proposed divestitures in Sinclair's planned buy of Tribune is getting majority support from commissioners, we're told. Commissioner Jessica Rosenworcel said she voted to OK the HDO, shortly after Chairman Ajit Pai announced he had circulated it. Commissioner Brendan Carr also is voting yes, an official said.

Commissioner Mike O'Rielly's office is talking with Pai's office about changing the draft to address O'Rielly's concerns it should add timelines, deadlines or other such "structure" to the process, said the member's chief of staff, Brooke Ericson. Commission representatives didn't comment right away.

Stock of the two TV-station owners further declined following the announcement Monday. Sinclair closed down 12 percent at $29.10 and Tribune fell 17 percent to $32.12. Tribune declined to comment and Sinclair didn't reply to queries.

An earlier bulletin on Pai's announcement is now in front of the Communications Daily pay wall: https://communicationsdaily.com/featured. Subscribers can read more about this development in the next regular issue.

With "serious concerns" on Sinclair buying Tribune, FCC Chairman Ajit Pai is asking commissioners to OK a draft order to designate, for an administrative law judge hearing, issues involving some proposed divestitures. “Based on a thorough review of the record," Pai said Monday morning, "the evidence we’ve received suggests that certain station divestitures that have been proposed to the FCC would allow Sinclair to control those stations in practice, even if not in name, in violation of the law."

Under the Communications Act, with "issues like these," the agency must put the transaction to a hearing "to get to the bottom of those disputed issues," Pai said.

Sinclair stock dropped after the announcement, down 4 percent to $31.65 in mid-morning trading. Tribune dropped 11 percent to $34.39.

The owners of the combining TV stations didn't comment right away. Commissioners' offices also didn't comment right away.

President Donald Trump chose Judge Brett Kavanaugh, 53, of the U.S. Court of Appeals for the D.C. Circuit Monday night to be his nominee to replace retiring Justice Anthony Kennedy on the Supreme Court.

Kavanaugh had by far the most telecom and media experience of any reported contenders, all appellate judges, for the nomination to the high court.

In dissenting from a D.C. Circuit en banc ruling affirming the FCC's 2015 net neutrality order, he argued the "major" regulation didn't deserve Chevron deference to agency expertise, lacked clear congressional authorization and violated broadband ISP First Amendment speech rights. He has also found programming rules violate cable operator speech rights, upheld partial telco forbearance relief decisions and ruled on many other FCC orders.

The jurist's record sparked initial polarized views in communications circles in our report.

For Disney's $71.3 billion deal to buy much of 21st Century Fox, DOJ said it would require the would-be acquirer to divest 22 regional sports networks. In a settlement agreed to by Disney, the Antitrust Division filed suit Wednesday in the U.S. District Court for the Southern District of New York, Justice announced. "To streamline agency clearance, Disney agreed to divest the 22 RSNs rather than continue with the Antitrust Division’s ongoing merger investigation." Smaller cable operators and others recently said they were concerned about such RSN concentration.

Comcast also has been trying to buy Fox assets, though some said that deal could face bigger antitrust hurdles. Comcast and 21st Century Fox didn't comment immediately. Disney recently boosted its bid for the Fox assets.

"Without the required divestitures, the proposed acquisition would likely result in higher prices for cable sports programming licensed to" MVPDs "in each of the local markets that the RSNs serve," Justice said. “American consumers have benefited from head-to-head competition between Disney and Fox’s cable sports programming that ultimately has prevented cable television subscription prices from rising even higher,” said Antitrust Division Chief Makan Delrahim.

The department's consent decree with Disney and 21st Century Fox allowing the deal would give the acquirer at least 90 days from closing to complete the RSN sale, "with the possibility that the DOJ can grant extensions of time up to another 90 days," Disney said. "The decree is subject to the normal court approval process."

Former FCC chairmen heralded Apple's Monday announcement it will include RapidSOS technology in iOS 12 to quickly send more accurate location information to 911 call centers, which National Emergency Number Association President Rob McMullen said will accelerate next-generation 911 deployment. It's "a very significant announcement heralding a material shift forward in emergency response capabilities,” former FCC Chairman Dennis Patrick, an adviser to RapidSOS, told us. “The FCC has itself estimated that enhanced location information accurately and immediately communicated can save up to 10,000 lives annually.”

“When we developed the mobile location standards, I asked why Uber could get to my home with precision, but the best we could do was 50 yards 80 percent of the time in six years,” former Chairman Tom Wheeler told us. “When I left, I was contacted by RapidSOS and liked what they were doing so much that I invested.”

Apple said it will use RapidSOS’ IP-based data pipeline to securely share Apple’s hybridized emergency location (HELO) data, which determines position based on cell towers and on-device sources including GPS and Wi-Fi. It will exceed the FCC 2021 requirement that carriers locate callers within 50 meters at least 80 percent of the time, it said. The new iOS, supporting iPhone 5S and later, will be available as a software update this fall.

Communications Director Bob Finney of the Collier County, Florida, sheriff's office tested the tech and said he hopes other smartphone makers follow. We interviewed him and others, who were among the only people Apple permitted us to contact before the company's announcement.

AT&T's planned $108.7 billion purchase of Time Warner got the green light Tuesday from U.S. District Judge Richard Leon of Washington. as he ruled in favor of the companies in rejecting DOJ's antitrust complaint seeking to block the deal. Leon announced his decision this afternoon to a packed courtroom.

DOJ sued the companies in November to block the deal, claiming New AT&T would pose too big an anticompetitive risk to rival video distributors. Many saw Justice's complaint facing long odds against success. The seven-week bench trial saw DOJ trying to paint a picture of New AT&T as willing and able to use its vertical integration against other MVPDs and the companies trying to raise doubt about the government's economic model.

Geoffrey Starks will be nominated by President Donald Trump to be a commissioner, FCC Chairman Ajit Pai said. The elevation of the Enforcement Bureau assistant chief has been expected, and he would succeed outgoing Commissioner Mignon Clyburn. Starks would serve the rest of a five-year term ending June 30, 2022, said a White House announcement forwarded to us from a Senate official. Other FCC members offered endorsements and encouragement as well (here, here and here.)

Starks "has a distinguished record of public service, including in the FCC’s Enforcement Bureau," Pai said Friday evening. Starks previously was senior counsel to a deputy attorney general and worked at Williams & Connolly, said a White House announcement.

Starks, the White House, offices of key senators and of Clyburn, and FCC spokespeople had no immediate or further comment after Pai's statement.

The Senate voted 52-47 Wednesday to pass the Congressional Review Act resolution aimed at reversing the FCC order to rescind 2015 net neutrality rules (Senate Joint Resolution-52), as expected.

Three Republicans voted in favor of the measure -- Sens. Susan Collins of Maine; John Kennedy of Louisiana; and Lisa Murkowski of Alaska. All three also had voted earlier Wednesday in favor of a motion to begin debate on the resolution, though Kennedy cautioned reporters then he wasn't yet committed to supporting the measure.

Supporters of the measure must still secure House passage of its version (House Joint Resolution-129) and convince President Donald Trump not to veto it.

Sprint and T-Mobile agreed to combine in a deal that would see the resulting wireless carrier take the T-Mobile name and be under some of that company's leadership. Foes of consolidation are likely to oppose the deal at the FCC and perhaps at DOJ, too, they told us Sunday immediately after the transaction was disclosed. The companies said in a statement that joining would help them roll out 5G: "Neither company standing alone can create a nationwide 5G network with the breadth and depth required to fuel the next wave of mobile Internet innovation in the U.S. and answer competitive challenges from abroad."

The transaction "represents a total implied enterprise value of approximately $59 billion" for Sprint, the companies said, and the "New T-Mobile" will be based in Bellevue, Washington, where T-Mobile US is headquartered, with a second headquarters in Overland Park, Kansas, where Sprint now is based, they said. T-Mobile US CEO John Legere would keep that title at the combined company, with T-Mobile Chief Operating Officer Mike Sievert as president-COO. T-Mobile US Chairman Tim Höttges would also keep that job, with the board including SoftBank Chairman-CEO Masayoshi Son and Marcelo Claure, current CEO of Sprint.

“We intend to bring ... competitive disruption as we look to build the world’s best 5G network," which will include "rural America," said Claure. The New T-Mobile "plans to create the highest capacity mobile network in U.S. history," the merging carriers said. "Compared to T-Mobile’s network today, the combined company’s network is expected to deliver 15x faster speeds on average nationwide by 2024, with many customers experiencing up to 100x faster speeds than early 4G." The combined carriers would invest up to $40 billion in new network and business in the first three years, 46 percent more than they spent in the past three years, they said.

Foes of such consolidation have opposed shrinking the number of nationwide U.S. wireless carriers to three from four. “This isn’t a case of going from 4 to 3 wireless companies," said Legere. "There are now at least 7 or 8 big competitors in this converging market. And in 5G, we’ll go from 0 to 1."

Free Press opposes this transaction and likely will make filings to that effect at the FCC, Policy Director Matt Wood told us. The "merger should and will face major antitrust hurdles," the group said Saturday, ahead of the announcement. "This deal must be blocked," said Gigi Sohn, Georgetown Law Institute for Technology Law & Policy distinguished fellow.

"This will receive vociferous opposition from the public interest community and Justice will be very, very skeptical," said Andrew Schwartzman, a senior counselor at Georgetown Law's Institute for Public Representation, in a phone interview. "Public interest groups will have serious problems with this transaction."

Company representatives didn't comment right away on such concerns, as executives were discussing the deal in a call that will be available for replay. Pro-consolidation voices didn't comment right away.

A full slate of FTC nominees “cleared the hotline” process on the Senate Republican side by Thursday afternoon, indicating members of that party wouldn't oppose confirmation under unanimous consent, Senate Commerce Committee Chairman John Thune, R-S.D., told us. A day earlier, the Senate Commerce Committee advanced on a voice vote Democratic FTC nominee Rebecca Slaughter. Commerce forwarded the other nominees in February: Joseph Simons, whom President Donald Trump plans to name chairman; Rohit Chopra; Noah Phillips; and Christine Wilson.

Democrats “have a hold" on advancing the nominees "at the moment" but were "trying to reach an understanding” with the White House, Thune said. Senate Commerce ranking member Bill Nelson, D-Fla., said his party's leaders were considering confirming “the whole package of five” FTC nominees under UC.

The White House didn't comment.

The Senate confirmed all five of President Donald Trump's FTC nominees Thursday evening under unanimous consent. The nominees include antitrust lawyer Joseph Simons, whom Trump plans to designate chairman. The others are former Consumer Financial Protection Bureau Assistant Director Rohit Chopra; Noah Phillips, aide to Senate Minority Whip John Cornyn, R-Texas; Rebecca Slaughter, former chief counsel to Senate Minority Leader Chuck Schumer, D-N.Y.; and Delta Air Lines' Christine Wilson.

The confirmations followed negotiations that lasted through Thursday afternoon. All five nominees “cleared the hotline” on the Senate Republican side by the afternoon, as we previously reported, but the Democrats were “trying to reach an understanding” with the White House, Senate Commerce Committee Chairman John Thune, R-S.D., told us ahead of the deal.

FCC Commissioner Mignon Clyburn said Tuesday's monthly meeting will be her last. "This has been the most incredible opportunity for me," she said in emotional comments following agency approval of six items. While she said she hasn't always agreed with colleagues, she thanked them and others, and noted she doesn't have her post-FCC "path all laid out" yet.

Clyburn received an ovation and colleagues thanked Clyburn for her service and dedication. "We’re going to miss you," said Commissioner Mike O'Rielly. "I just want to say goodbye to a real dynamo" and "partner in the public interest," said Commissioner Jessica Rosenworcel. Commissioner Brendan Carr thanked Clyburn for her public service. Chairman Ajit Pai said he agreed with his colleagues' statements and added: "Your legacy is a very rich one."

The 9th U.S. Circuit Court of Appeals agreed to transfer net neutrality repeal litigation to the D.C. Circuit for review. In a brief order (in Pacer) Wednesday, a three-judge 9th Circuit panel cited petitioners' unopposed motion to transfer the case (County of Santa Clara v. FCC, No. 18-70506, and consolidated cases).

President Donald Trump intends to nominate Rebecca Slaughter, chief counsel to Senate Minority Leader Chuck Schumer, D-N.Y., to the vacant Democratic FTC seat, as expected (see 1802060039), the White House said late Monday. Slaughter has worked for Schumer since 2009, advising him on competition, consumer protection, privacy, IP and telecom policy issues, among others. She previously was a Sidley Austin associate. Trump’s intended nomination of Slaughter comes weeks after the Senate Commerce Committee voted to advance four other FTC nominees, including antitrust lawyer Joseph Simons, whom Trump plans to designate chairman. The other nominees are former Consumer Financial Protection Bureau Assistant Director Rohit Chopra; Noah Phillips, aide to Senate Minority Whip John Cornyn, R-Texas; and Delta Air Lines' Christine Wilson. Schumer’s office didn’t immediately comment.

The FY 2018 omnibus spending bill contains language from the House-passed Repack Airwaves Yielding Better Access for Users of Modern Services (Ray Baum's) Act FCC reauthorization and spectrum legislative package (HR-4986), as expected. House leaders released the spending bill's text Wednesday evening. The House could vote on the measure as soon as Thursday, with a Senate vote to follow. The current continuing resolution to fund the government expires Friday.

The included HR-4986 text includes language from the Viewer Protection Act (HR-3347) to authorize additional repack funding and from the Spectrum Auction Deposits Act (HR-4109) that would let the FCC place bidders' deposits for future spectrum auctions in a Treasury Department fund. The omnibus allocates $1 billion in additional repack funding, with $600 million available in FY 2018 and $400 million in FY 2019. Funding will be available until July 3, 2023. The omnibus version of HR-4986 also includes a revised version of language from the Senate-passed Making Opportunities for Broadband Investment and Limiting Excessive and Needless Obstacles to Wireless (Mobile Now) Act (S-19) spectrum bill.

Also included is language from the Clarifying Lawful Overseas Use of Data Act (HR-4943/S-2383), despite privacy groups' concerns. The Cloud Act "includes strong privacy protections around access to data, contains clear human rights protections, and maintains a robust role for Congress and the judicial system in overseeing agreements to obtain data," said BSA|The Software Alliance.

Among other provisions of interest to the telecom sector are $600 million in funding for a Rural Utilities Service-administered “Distance Learning, Telemedicine, and Broadband Program” and $7.5 million for NTIA to coordinate the federal government's broadband mapping activites, also as expected.

Senate Commerce Committee ranking member Bill Nelson, D-Fla., said Tuesday he now supports Senate Minority Leader Chuck Schumer's, D-N.Y., recommended choice to replace FCC Commissioner Mignon Clyburn upon her expected departure from the commission. Schumer recommended Enforcement Bureau Assistant Chief Geoffrey Starks as Clyburn's successor. Nelson in February publicly backed John Branscome, Senate Commerce chief Democratic telecom counsel, to succeed Clyburn.

“It's [Schumer's] choice” to make, Nelson said in response to our questions now: “We'll get John [Branscome] later on down the line” at the FCC “because he's a real expert” on telecom policy.

Schumer's office didn't comment.

The White House has “no announcements at this time,” a spokesman said.

Federal judges partially upheld and partially overturned an FCC robocalling order that sought to clarify Telephone Consumer Protection Act restrictions on using automated dialing devices to make uninvited calls. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit upheld the 2015 declaratory ruling's revocation approach, under which parties can revoke consent "through any reasonable means clearly expressing a desire to receive no further messages from the caller," said the opinion Friday of Judge Sri Srinivasan in ACA International v. FCC, No. 15-1211. "We also sustain the scope of the agency’s exemption for time-sensitive healthcare calls."

The panel set aside the FCC's "effort to clarify the types of calling equipment that fall within the TCPA’s restrictions," said Friday's opinion. "The Commission’s understanding would appear to subject ordinary calls from any conventional smartphone to the Act’s coverage, an unreasonably expansive interpretation of the statute. We also vacate the agency’s approach to calls made to a phone number previously assigned to a person who had given consent but since reassigned to another (nonconsenting) person. The Commission concluded that calls in that situation violate the TCPA, apart from a one-call safe harbor, regardless of whether the caller has any awareness of the reassignment. We determine that the agency’s one-call safe harbor, at least as defended in the order, is arbitrary and capricious."

After oral argument was held in October 2016, the opinion had been long awaited. ACA and FCC representatives said they couldn't comment right away.

The 9th U.S. Circuit Court of Appeals was picked to hear net neutrality repeal litigation, the FCC confirmed Thursday. The 9th Circuit was "randomly selected" by the U.S. Judicial Panel on Multidistrict Litigation, said an order a commission spokesman passed along after we inquired.

The FCC had told (in Pacer) the panel there were 10 petitions for review filed in the D.C. Circuit and two in the 9th Circuit.

Parties could still file a motion to transfer the case back to the D.C. Circuit. The decision would be up to the 9th Circuit.

Federal judges upheld a district court denial of an AT&T motion to dismiss an FTC action alleging the carrier's mobility unit data-throttling plan is unfair and deceptive. The ruling appears to preserve FTC authority over the non-common-carrier activities of common carriers such as AT&T Mobility. An en banc panel of the U.S. 9th Circuit Court of Appeals said an FTC common-carrier exemption is "activity based," covering common-carrier activities only, not "status based," which would also cover non-common-carrier activities of common carriers.

"The phrase 'common carriers subject to the Acts to regulate commerce' thus provides immunity from FTC regulation only to the extent that a common carrier is engaging in common-carrier services," said the opinion (in Pacer) of the en banc panel in FTC v. AT&T Mobility No. 15-16585. "Reaffirming FTC jurisdiction over activities that fall outside of common-carrier services avoids regulatory gaps and provides consistency and predictability in regulatory enforcement."

AT&T and the FTC didn't comment right away in the minutes after the decision was issued Monday.

Principles for President Donald Trump's infrastructure legislative proposal expected to be released Monday will include a promised focus on streamlining the federal environmental permitting process down to a maximum of two years for a wide range of projects that could include broadband, plus state block grants and federal matching funds, administration officials told reporters this weekend. The communications sector has been lobbying for an anticipated broadband title in the infrastructure package.

The Trump administration will propose shortening the environmental permitting timeline via a proposal to “create a lead federal agency” with authority over the process, “working with the permitting agencies” to reach a “collective decision,” an administration official said. The White House will propose delegating more permitting authority to state governments as long as they follow federal mandates. These measures could aid rollout of more communications equipment like cellphone infrastructure that industry believes will be in need for 5G.

The plan would commit $200 billion in federal infrastructure funding that would include $50 billion for rural areas via block grants to governors, aimed at encouraging $1.5 trillion in total new investments, administration officials told reporters Saturday. They spoke on the condition they not be named and that this information not be made public until now.

President Donald Trump's administration Tuesday said it sent the Senate four FTC nominees (see here). If they are all confirmed, both current commissioners would leave. Three of the picks had been expected, plus Delta Air Lines' Christine Wilson. The agency would be at its full complement only if existing Commissioner Terrell McSweeny were to stay, but her term would be filled by the incoming chairman. Earlier this week, the White House announced it was nominating current acting Chairman Maureen Ohlhausen to be a judge and she would leave once her successor arrives, and that nomination has been sent to the Senate.

Wilson would be a commission member for the rest of Ohlhausen's term and then seven years from Sept. 26, the White House said. The former top aide to FTC Chairman Timothy Muris in the George W. Bush administration, Wilson is an antitrust and consumer protection expert and senior vice president-regulatory and international affairs at Delta, the administration said. "For over twenty years, Ms. Wilson has been an advocate of the fundamental principle that competition -- not regulation -- is the best protection for consumers and the strongest prescription for a healthy economy."

The other nominees, whom the White House previously had said it was picking, are Joseph Simons, whom the administration previously said it would designate chairman, former Consumer Financial Protection Bureau Assistant Director Rohit Chopra and Noah Phillips. Simons would get "the term of seven years from September 26, 2017, vice Terrell McSweeny, term expired," said the administration. The paperwork for Simons and Chopra previously was sent to the Senate but was held up for Phillips, an aide to Sen. John Cornyn, R-Texas. Chopra would fill the term of Joshua Wright and his term would end Sept. 26, 2019, while Phillips would get Julie Brill's term (she previously left) and that would end Sept. 26, 2024.

The White House, FTC, Delta and McSweeny's office didn't have further comment right away.

President Donald Trump signed two executive orders Monday aimed at improving broadband deployments in rural areas of the U.S., saying at an American Farm Bureau Federation convention in Nashville that it will be the first of several actions aimed at changing the current situation. One of the orders is aimed at “streamlining and expediting requests” for rural broadband projects, he said. The other targets siting of tower facilities on Department of the Interior-owned lands. Both orders will ensure citizens in rural areas are “going to have great, great broadband,” Trump said. The texts of the orders weren't available.

Trump's announcement occurred in conjunction with the Monday release of a report from the Interagency Task Force on Agriculture and Rural Prosperity that in part recommended the White House act to improve rural “e-connectivity,” including developing a multiagency strategy for increasing rural broadband deployment and reducing regulatory barriers to broadband projects. “E-connectivity is fundamental for economic development, innovation, advancements in technology, workforce readiness, and an improved quality of life,” the report said. “Reliable and affordable high-speed internet e-connectivity will transform rural America as a key catalyst for prosperity.”

The FCC released the long-awaited text of its new net neutrality regulations Thursday evening. Some had expected imminent release. The order was OK'd by commissioners on a party-line vote Dec. 14.

As promised, two FCC members' statements ran long. Commissioner Mignon Clyburn included the couple-hundred page text of the rescinded rules as an Appendix to her nine-page dissent, which she called in part a "eulogy of our 2015 net neutrality rules." And Mike O'Rielly also added to his statement from last month's commissioners' meeting.

"Many words have been spoken during this debate but the time has come for action," Chairman Ajit Pai wrote. The total page count of the new order, including all aforementioned materials: 539 pages.