Three groups urged a court to throw out an FCC business data service order "largely deregulating and deeming competitive an overwhelmingly concentrated market." The agency "departed from its past precedents" without justification in concluding, "contrary to the record and established antitrust analysis, that duopoly markets are sufficiently competitive to discipline market power and prices," said an amicus brief by Public Knowledge, Consumer Federation of America and New Networks Institute to the 8th U.S. Circuit Court of Appeals (in Citizens Telecommunications of Minnesota v. FCC, No. 17-2296), which PK posted Thursday. The groups said the order will "harm businesses, government institutions, and other organizations that rely on BDS for essential connectivity, and those costs, totaling approximately $20 billion per year, will ultimately be borne by consumers and taxpayers." If the "contrived theory" is upheld and applied to other markets, it "would be catastrophic for competition and consumer protection," they said, because the FCC could "contravene the direct mandate from Congress to ensure 'just and reasonable rates,' opening the door to potential price gouging and possibly chilling traditional antitrust enforcement." The FCC didn't comment. After years of “massive data collection,” the agency 2-1 found price regulation inappropriate for packet-based BDS offerings due to widespread competition, creating a competitive market test for legacy services under price caps (see 1704200020 and 1705010019).

Puerto Rico's main public safety answering point remains offline, with 911 calls being sent to the backup PSAP. The St. Croix and St. Thomas 911 call centers are operational but unable to retrieve some location information for wireless and VoIP callers, the FCC said Thursday in its latest Hurricane Maria status report. It said 84.6 percent of wireless sites are out of service, down from 86.3 percent the day before. It said 24 of Puerto Rico's 78 counties have all their cellsites out of service, down from 27. In the U.S. Virgin Islands, 60.3 percent of cellsites are out of service, down from 66 percent, and all cellsites in St. John remain out of service. It also said large numbers of people in Puerto Rico and the Virgin Islands remain without cable or wireline service due to widespread power outages. And it said two Puerto Rican TV stations and nine radio stations are reported off-air. The outage information is "almost certainly ... not complete" due to some communications providers having yet to report, the agency said. A Wireless Bureau order Thursday granted an American Radio Relay League temporary waiver to allow amateur data transmission at a higher baud rate than allowed to facilitate hurricane relief communications. “Approximately one-third” of Puerto Rico’s VHF radio system for communication among municipalities is back online, said the Federal Emergency Management Agency Thursday. “Since Hurricane Maria, communication has been out across the island, hampering the ability of mayors to communicate.” The system currently allows communication among more than 30 municipalities, and is expected to be fully functional by “early next week,” FEMA said. The system will also allow municipalities to communicate with the Puerto Rico Emergency Management Agency, the federal counterpart said. “Restoration is joined by more and more cell towers being re-energized around the periphery of the island, increasing communications of government municipalities and Puerto Ricans.” AT&T and other carriers likely learned lots of lessons from the three big storms that hit parts of the U.S. recently, blogged public safety consultant Andrew Seybold Thursday. “The final and greatest challenge is just getting underway in Puerto Rico,” Seybold wrote. “Because of the devastation, lack of access, power, water, and food, the job for both those handling the power and the cell sites is most daunting.” As it rebuilds its cellsites, FirstNet partner AT&T is likely spending extra time and money making sure more sites are hardened to a point where they can withstand at least some of “nature’s fury,” he said. “I say ‘some’ because I am not certain how you could ensure your hardened sites are, in fact, hardened to withstand what Maria brought.”

The FCC proposed 4-1 a $3.96 million fine against Neon Phone Service for apparently violating rules against making unauthorized changes to consumers' preferred long-distance providers (slamming) and inserting unauthorized charges on phone bills (cramming). The commission, saying Neon also "deceptively marketed" its service, received many consumer complaints, said a release and a notice of apparent liability in Wednesday's Daily Digest. In a couple cases, "Neon fabricated third party verification recordings to make it appear that these consumers authorized the carrier change and then provided those fabricated recordings to the Commission as evidence of consumer authorization," said the NAL, noting Neon didn't respond to a letter of inquiry. Chairman Ajit Pai and Mignon Clyburn said they were pleased the FCC "agreed to consider revoking Neon’s Commission authorizations after it has had the opportunity to respond to this [NAL]. If companies egregiously flout our rules, this option should be on the table." Commissioner Jessica Rosenworcel called this "part of a pattern of similar behavior by others associated with Neon," some subject to multiple FCC enforcement actions: "The Commission should go further to stop these bad actors from engaging in this same fraud again. This agency should use every tool we have at our disposal to stop wrongdoers in their tracks and prevent them from repeating these scams." Commissioner Michael O'Rielly partially dissented without issuing a statement. Company representatives didn't comment or couldn't be reached.

Finding spectrum will increasingly become a challenge as space and airborne wireless becomes a bigger part of communications, said Julius Knapp, chief of the FCC Office of Engineering and Technology, at a Silicon Flatirons conference Wednesday, streamed from Boulder, Colorado. The session was on 3D wireless, from satellites to high-altitude platform stations (HAPS) to drones. “It’s getting more complicated,” he said. “There’s a lot more things going up in the sky” and the FCC doesn’t have the luxury of giving all the users their own bands, he said. Like in chess, “2D is challenging, 3D, mind-boggling.” Knapp said 3D wireless is “at the intersection of policy, engineering, economics, and the services that they provide.” Geostationary orbit satellites, roughly 22,000 miles in space, have major latency issues, “not necessarily a complete" impediment, he said. Non-geostationary satellites offer worldwide coverage and are comparable to inverted cellular systems, he said. “Instead of having all of the base stations on the ground, now the base stations are in the air and the handoff is happening between satellites.” HAPS, at close to 60,000 feet high, have a role, he said. They are “low to the Earth, so they don’t have the latency issue,” Knapp said. “The power levels are higher so I can get penetration on the ground. I can use them to fill in areas.” There’s only one global allocation for HAPS now, he said. The "good news” is ITU is looking at more spectrum for HAPS as an agenda item at the 2019 World Radiocommunication Conference, he said. “Because the technology has advanced, and the need to provide service to fill in” at various locations bigger, “it’s all being studied,” he said. Unmanned aerial vehicles, much lower than HAPS, are seeing work at NASA and the FAA and within industry, Knapp said. UAVs now mostly use unlicensed spectrum, “which always makes me a little bit nervous because there’s no interference protections,” Knapp said. UAVs need spectrum for command and control, but also for their payload, he said. People want HD video from the UAV and that takes a lot more bandwidth than the operations themselves, he said. “Where is that going to come from?" he said. "There has been much more focus on the control.” The big challenge for all the systems is spectrum, agreed Bobby Braun, dean of the College of Engineering and Applied Science at the University of Colorado Boulder. “If you think of where we’re headed … I actually don’t think that there’s going to be enough spectrum,” he said. “I imagine there will some kind of allocation, sharing scheme in time.”

The U.S. Court of Appeals for the D.C. Circuit is moving to the next-generation case management/electronic case files system on Nov. 20, with a redesigned user interface that functions similarly to other circuit, district and bankruptcy courts in the federal judiciary, it said in a notice Tuesday. The implementation also will increase compatibility with commonly used web browsers and allow a centralized sign-on into each circuit, district and bankruptcy court that has implemented the next-gen upgrade, it said. The court also said each user will need an individual, upgraded Pacer account under the next-gen CM/ECF system, because firmwide and shared accounts aren't permitted.

Reactions to Senate reconfirmation of FCC Chairman Ajit Pai divided between supporters of a proposal to rescind 2015 net neutrality rules, who praised the vote, and those who favor keeping the rules, who overwhelmingly criticized it. The Senate voted 52-41 to confirm Pai, with four Democrats joining Republicans in voting for the chairman (see 1710020062). Fight for the Future, a 2015 rules supporter, launched a phone campaign Tuesday targeting the four Democrats who voted for Pai (see 1710030065). “The only people celebrating today’s vote are top executives at the phone and cable companies Ajit Pai so eagerly serves,” said Free Press CEO Craig Aaron. Public Knowledge Vice President Chris Lewis tweeted thanks to the 41 Democrats who voted against Pai, saying “we need more to stand up for [net neutrality], rural broadband & other issues at risk.” Many companies and industry groups Monday and Tuesday lauded Pai's confirmation, including 5G Americas, America's Public Television Stations, AT&T, Comcast, Frontier Communications, ITTA, Verizon and WiFiForward. NCTA CEO Michael Powell said Pai “has consistently demonstrated a thoughtful approach to policymaking that promotes consumer welfare through marketplace competition and innovation.” CTA President Gary Shapiro said Pai's “emphasis on promoting competition, innovation and flexibility will help ensure a thoughtful policy approach as the commission addresses expanded broadband access, digital opportunity for all Americans and the anytime, anywhere connectivity consumers demand.” NAB appreciates "his effort to ease outdated regulatory burdens on local radio and TV” (see 1710030059), said President Gordon Smith.

The FCC says a carriage disruption involving Dish Network and Lilly Broadcasting came to an end Monday night after calls from Chairman Ajit Pai's office to the two. The agency said after it "expressed its concern about the impact of this dispute on the people of Puerto Rico and the U.S. Virgin Islands," the two restored One Caribbean TV carriage. Neither Dish nor Lilly commented. Pointing to that blackout, American Cable Association President Matt Polka in a docket 10-71 filing posted Tuesday pushed for a change in the FCC's retrans good faith negotiation rules. ACA said the agency should add to its list of per se bad faith actions broadcasters failing to provide an MVPD with authorization to retransmit signals, and pay-TV providers refusing to retransmit those signals, in any county where the Disaster Information Reporting System is activated. It also said the agency "should find it intolerable" that a broadcaster would use blocking of viewers during a state of emergency as a means of leveraging higher retransmission consent fees. Switching providers or installing antennas is a ridiculous broadcaster suggestion during an emergency like the aftermath of Hurricane Maria, ACA said.

The telecom recovery from Hurricane Maria in Puerto Rico is moving at a slow pace. The FCC reported Monday that about 88.3 percent of cellsites remain down, virtually unchanged from the previous day. All counties, except Bayamon, Guaynabo and San Juan, have more than 75 percent of their cellsites out of service. Key public 911 call centers in Puerto Rico and the U.S. Virgin Islands remain down, the FCC said. In both places, substantial numbers of cable and wireline customers lack service.

Newsmax CEO Chris Ruddy, meeting with more FCC officials about fears on Sinclair/Tribune (see 1709290063), also raised concern about Comcast's programming carriage choices and asked the agency not to let ISPs block or throttle content providers including news outlets. Meeting last week with FCC Chairman Ajit Pai, the head of the conservative news outlet said of efforts to reclassify broadband back under Title I of the Communications Act that "network neutrality protections have been in place long before the Obama Administration reclassified broadband under Title II and have been affirmed by both Republican and Democrat Administrations." Newsmax said in a filing posted Monday in docket 17-179 that "even if" ISPs hadn't "engaged in anti-competitive activity," the agency is obliged "to take reasonable steps to implement safeguards." On "Comcast’s well-known political bias," Ruddy said the company acts "not only [to] benefit their owned and operated networks like MSNBC and CNBC, but prevent networks that do not share their political point of view" from carriage. The cable operator has at least 11 liberal-leaning news and information channels and "only one conservative-leaning news channel, Fox News," Newsmax said. On Sinclair's planned takeover of Tribune, "Ruddy questioned the apparent rush to approve the Sinclair merger before the ownership cap had been fully reviewed by the Commission or Congress." Comcast and Sinclair didn't comment.

The FCC is moving to "define down" what's acceptable for broadband networks and wireless competition (see 1709260045 and here), blogged former Chairman Tom Wheeler for the Brookings Institution. "By quietly altering the measuring sticks, the Trump FCC is 'Defining Digital Down' to reset the definition of acceptable behavior by the companies that control America’s networks," Wheeler wrote Monday. "Instead of working to build the best possible future for Americans, the agency’s new definitions lower expectations, declare victory where there is none, and set the stage for anti-consumer consolidation." Commissioner Jessica Rosenworcel recently objected to the possibility the FCC could, in effect, lower its benchmark through its inquiry into the state of broadband-like advanced telecom capability deployment pursuant to a Telecom Act Section 706 mandate (see 1709200042).