Several lawmakers and organizations have already signed the letter the Congressional Progressive Caucus plans to send the FCC later this week (CD May 12 p7) pressing for stronger net neutrality rules (see separate report above in this issue), relying on Communications Act Title II authority rather than Section 706. According to a Dear Colleague letter sent Monday by caucus co-chairs Raul Grijalva, D-Ariz., and Keith Ellison, D-Minn., the American Civil Liberties Union, Credo Action, Demand Progress, Democracy for America, MoveOn.org and the National Hispanic Media Coalition all endorse the letter. Signatories include House Judiciary Committee ranking member John Conyers, D-Mich., along with Reps. David Cicilline, D-R.I.; Mike Capuano, D-Mass.; Peter DeFazio, D-Ore.; Donna Edwards, D-Md.; Alan Grayson, D-Fla.; Rush Holt, D-N.J.; Mike Honda, D-Calif.; Jared Huffman, D-Calif.; Marcy Kaptur, D-Ohio; Barbara Lee, D-Calif.; John Lewis, D-Ga.; Alan Lowenthal, D-Calif.; Jim McGovern, D-Mass.; Jerrold Nadler, D-N.Y.; Mark Pocan, D-Wis.; Lucille Roybal-Allard, D-Calif.; Mark Takano, D-Calif.; and Del. Eleanor Holmes Norton, D-D.C. “Over one million people have already gone on the record in support of reclassification,” the letter to lawmakers said. “We urge you to join us in pressing the FCC to consider this support for strong, enforceable open Internet rules as it moves forward with the rulemaking process.” The deadline to sign is Tuesday at close of business, it said. The letter to the FCC has not been officially released or sent.

FCC commissioners should continue to “keep our eyes open” for evidence of broadband provider actions that harm consumers, Commissioner Mike O'Rielly said in an interview for C-SPAN’s The Communicators, adding that “I don’t want to regulate in the future what may happen.” The interview is set to appear online Friday afternoon and on C-SPAN at 6:30 p.m. EDT Saturday. Commissioners should likewise “keep our eyes open” for any emergence of an Internet fast lane, but “it’s early on in the equation,” O'Rielly said. He said his own conversations with broadband providers indicate that they don’t intend to fundamentally change their policies in the wake of the U.S. Court of Appeals for the D.C. Circuit’s Jan. 14 ruling that largely struck down the FCC’s 2010 net neutrality rules. The FCC should absolutely follow up on “legitimate harms,” but “right now we're kind of regulating a guessing game,” O'Rielly said. FCC Chairman Tom Wheeler plans to justify the net neutrality NPRM using Section 706, which O'Rielly has said could lead to unintended consequences, particularly opening the door to possible future FCC action on cybersecurity and edge providers. The FCC’s authority on cybersecurity is “very limited” under the Communications Act, but a broader interpretation of Section 706 could lead the commission to expand its regulatory authority on the issue, he said.

FCC Commissioner Jessica Rosenworcel has “real concerns” about Chairman Tom Wheeler’s proposal on net neutrality, she told the chief officers of state library agencies Wednesday, according to prepared remarks (http://bit.ly/RslUvG). Rosenworcel called for a delay of at least one month to give the agency time to consider how to proceed, and a broad Internet-based public outreach effort. Wheeler has acknowledged that all options are on the table, but “I have real concerns about process” given that the rules could lead to the creation of an “Internet fast lane,” Rosenworcel said. Wheeler’s proposal “has unleashed a torrent of public response” with tens of thousands of emails, hundreds of calls, and Internet-wide commentary that “we need to respect,” she said. “While I recognize the urgency to move ahead and develop rules with dispatch, I think the greater urgency comes in giving the American public opportunity to speak right now, before we head down this road.” The sunshine period, set to kick in Thursday, will mean the agency no longer accepts public comment, she said. “It’s a mistake to cut off public debate right now,” Rosenworcel said. “At a minimum, we should delay the onset of our Sunshine rules.” Because of a “challenging set of court decisions that have led us to this point,” the agency’s legal staff “should be holding forth, answering questions, and explaining what is before us with regular sessions -- not in Washington, but over the Internet, through social media, and broadly accessible to the public,” Rosenworcel said. Commissioner Mignon Clyburn posted a blog entry Wednesday saying her preferred net neutrality rules would ban pay-for-priority arrangements. “During the past few weeks, tens of thousands of consumers, companies, entrepreneurs, investors, schools, educators, healthcare providers and others have reached out to ask me to keep the Internet free and open,” Clyburn said (http://fcc.us/1jfDxd3). “While it is my normal practice not to comment in advance on items which are on circulation out of my deep respect for the integrity of our regulatory and administrative process, given the high level of attention and the outpouring of expression on the notice of proposed rulemaking on Open Internet, I felt it was important to highlight my previously stated views,” Clyburn said. When she voted to approve the 2010 net neutrality order, she made clear she would have applied the rules to mobile services, and she “would have prohibited pay for priority arrangements altogether,” Clyburn said. “There is no doubt that preserving and maintaining a free and open Internet is fundamental to the core values of our democratic society, and I have an unwavering commitment to its independence."

Level 3 made public details about its peering arrangements. The transit provider has tens of thousands of customers but only 51 peers interconnected in 45 cities, Mark Taylor, vice president-content and media, said in a Monday blog post (http://bit.ly/Rp4os6). Of those, he said, 48 are “settlement free” -- no money changes hands. “Our policy is to refuse to pay arbitrary charges to add interconnection capacity,” he said. As for shared costs for the networks to interconnect, each party typically pays to augment its own network to allow more traffic exchange, he said. Most peers aren’t anywhere near capacity, but six peers have congestion on “almost all of the interconnect ports between us,” Taylor said. That congestion is “permanent,” he said, “where our peer refuses to augment capacity.” They're deliberately harming the service they deliver to their paying customers, he said. They're not allowing us” to fulfill “the requests their customers make for content,” he said. Five of those congested peers are in the U.S., and all of them are large broadband consumer networks with dominant or exclusive market share in their local markets, he said: “Shouldn’t a broadband consumer network with near monopoly control over their customers be expected, if not obligated, to deliver a better experience than this?"

Top Senate Democrats weren’t ready to say when they would take on draft legislation for Satellite Television Extension and Localism Act reauthorization, they told us Tuesday at the Capitol. The House Commerce Committee scheduled a markup of its STELA draft, the only legislative text introduced so far, for Thursday. (See separate report below in this issue.) The Commerce and Judiciary committees in both chambers have jurisdiction over STELA, which will expire at the end of the year unless Congress reauthorizes it. “We're anxiously watching to see what the House will do and see what their final bill looks like,” said Senate Communications Subcommittee Chairman Mark Pryor, D-Ark. “We'll see what they do and look forward to seeing what they come up with.” He acknowledged legislative days left in the year “are short.” Senate Commerce Committee Chairman Jay Rockefeller, D-W.Va., seemed familiar with the markup planned in the House but did not pay it much mind: “We don’t sort of decide what we're going to do because the House does or doesn’t do something, but we'll be marking that up,” Rockefeller said of STELA. “We've got about 10 things we have to do, but that’s going to be one of them!” Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., declined to weigh in on precisely where his committee stands. But when asked, Leahy said, “I'd love to mark it up today.” Both Commerce and Judiciary have held STELA hearings this year. Pryor also didn’t rule out the possibility the Communications Subcommittee would hold a hearing on Comcast’s proposed buy of Time Warner Cable. “I need to talk with Chairman Rockefeller on that,” Pryor said. “He and I have discussed that a couple of times before, as I have with Senator [John] Thune,” R-S.D., ranking member of Commerce. “But we'll just see what we're going to do on that.”

Correction: The dates of the Minority Media and Telecommunications Council telecom policy conference are July 28-29 (CD May 5 p21).

The U.S. Supreme Court agreed to hear T-Mobile South v. Roswell, Ga., on whether local governments have to provide detailed written explanations when they deny carriers’ applications to build new cell towers in their jurisdictions. The case will be argued during the court’s October 2014 term (http://1.usa.gov/1iQXU16). The court also granted leave for the Competitive Carriers Association to file an amicus brief. In seeking cert, T-Mobile said there’s a split in the federal circuits on how to interpret Section 332(c)(7)(B)(iii) of the Communications Act, which “specifies that any local government’s denial of an application for the placement, construction, or modification of a personal wireless facility “shall be in writing and supported by substantial evidence contained in a written record.” The case is from the 11th U.S. Circuit Court of Appeals, which is at odds with other circuits, T-Mobile said (http://bit.ly/1iQXvM5). The circuit court handed down its decision last year (CD Oct 2 p 12). “According to the majority of the federal courts of appeals to address the issue, this provision dictates that an issuance denying such an application must be separate from the administrative record and ‘contain a sufficient explanation of the reasons for the permit denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons,'” T-Mobile said. “The Eleventh Circuit expressly ‘rejected’ that view and instead joined the Fourth Circuit in holding that a denial letter need only advise the applicant of the fact that the permit has been denied.” The city asked the court to turn down the appeal. “Even a cursory review of the more recent decisions and the relevant Eleventh Circuit Opinion appealed underscore the reality that the Circuit Courts are now reaching a consensus in theory or practice such that this issue does not necessitate or merit review,” the City of Roswell said (http://bit.ly/1mw1AI6). “Finally, Petitioner has not and cannot show that the Eleventh Circuit erred in its interpretation of the straightforward language of the Act, thereby failing to set forth any underlying error and basis for granting of the Petition.” Said T-Mobile General Counsel Dave Miller: “We believe local governments should clearly state ‘in writing’ the reasons why an application to build new or modify existing wireless infrastructure is denied.” “Building and improving mobile infrastructure is critical for consumers to fully benefit from our broadband economy."

Until nations achieve acceptable intellectual property protections, they will “remain second-rate powers,” said Vice President Joe Biden at the Motion Picture Association of America’s creativity conference Friday. ABC News and Microsoft helped sponsor the event. How can a nation say it’s “law-abiding” when its government and people “steal the most valuable ideas from our country?” Biden asked. The “choices” of governments on intellectual property “in the next few years will shape the character” of a “global system of competition for decades to come,” he said. “President Obama and I are not going to sit by and let the outcome of this new system be determined by others,” which is why they are negotiating the Trans-Pacific Partnership in parts of the Asia-Pacific and the Transatlantic Trade and Investment Partnership (TTIP) in Europe, he said. The TTIP would “significantly deepen” economic ties with the European Union, including on intellectual property, he said. If the playing field in intellectual property protections is “even remotely level,” the U.S. will “succeed,” he said. The Congressional International Anti-Piracy Caucus is planning to change its name, because the word “piracy” has an “allure,” said House Judiciary Committee Chairman Bob Goodlatte, R-Va., at the event. Goodlatte co-chairs the caucus. Piracy is “stealing,” he said. The name change will need approval from some Congressional members, he said, declining to elaborate. “I think we're making progress, but we have a long way to go” in improving China’s intellectual property enforcement, he said. Thirty-seven countries were featured on the U.S. Trade Representative Special 301 Watch List 2014 for insufficient enforcement of intellectual property rights, said a USTR report released earlier in the week (http://1.usa.gov/R32RYF). Ten countries, including China and India, were designated as priority watch list countries, it said.

Correction: Matthew Berry, aide to Commissioner Ajit Pai, said the FCC has enabled the cable industry to make better use of spectrum (CD May 2 p1), not that the industry needs to make better use of it.

FCC Chairman Tom Wheeler’s fellow commissioners weighed in on net neutrality at a Cable Show policy luncheon Thursday, but didn’t comment directly on whether they agreed with his proposal (CD May 1 p1). The commission should seek congressional guidance on how to proceed before taking action, said Commissioner Ajit Pai, who called the matter “a solution in search of a problem.” Commissioner Mike O'Rielly said he worries that the agency doesn’t have jurisdiction over the Internet, though he added that he would keep “an open mind.” Commissioners Jessica Rosenworcel and Mignon Clyburn said they support an open Internet, and that they were still considering Wheeler’s NPRM, which is currently circulating on the eighth floor. (See separate report above in this issue.) Clyburn said she is “still evaluating what the chairman circulated. Rosenworcel has “heard a lot from a lot of people” and said she will take “a hard look” at the proposal and the public perception of it.