Requiring Charter Communications to build out its broadband network into competitors' footprints likely would prompt it to overbuild where competition is weakest, rather than in unserved communities, Commissioner Mignon Clyburn said in a statement Monday, concurring with Chairman Ajit Pai and Commissioner Mike O'Rielly on the order eliminating the overbuild condition (see 1704030039). The overbuild requirement -- 1 million new broadband internet access service deployments in locations where another BIAS provider operates within five years of closing on the buys of Time Warner Cable and Bright House Networks -- doesn't fix a transaction-specific harm and isn't in the public interest, the FCC said in its order, agreeing with petitions for reconsideration filed by American Cable Association and NTCA (see 1606100043). In a statement, O'Rielly said the item "rightfully opens the door to the Commission scrutinizing other objectionable or questionable conditions in this transaction and others." O'Rielly said the FCC's review of Charter/TWC/BHN "did not comport with an acceptable mechanism to consider a merger transaction." Clyburn said she's "concerned" New Charter would end up the sole BIAS provider in those overbuild markets: "By removing the overbuild condition, we at least give New Charter the freedom to serve more unserved communities." Charter didn't comment on whether it had begun its BIAS buildout. The FCC decision to undo the overbuild condition of Charter Communications is “a big step toward restoring faith in the merger review process,” said House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn., in a statement. “Merger conditions should not be used to make an end run around the rule-making process to achieve unrelated policy goals.” In pushing for broadband deployment, “we should focus on targeting service to areas that are truly unserved, not attempting to manufacture competition through government mandated buildout,” she said. In a tweet Monday, House Commerce member Rep. Adam Kinzinger, R-Ill., said the order was a "common-sense decision ... to advance broadband policy that prioritizes Americans w/ no access." Still pending before the FCC are petitions for reconsideration by the Competitive Enterprise Institute and Zoom Telephonics (see 1606100043).

President Donald Trump’s signature Monday enacting the Congressional Review Act measure ending FCC ISP privacy rules immediately drew a flurry of responses that included outcry from defenders of the rules and praise from ISP industry officials. FCC Chairman Ajit Pai and Commissioner Mike O’Rielly lauded the new law. “To deliver that consistent and comprehensive protection, the [FCC] will be working with the [FTC] to restore the FTC’s authority to police Internet service providers’ privacy practices,” Pai said. “We need to put America’s most experienced and expert privacy cop back on the beat. And we need to end the uncertainty and confusion that was created in 2015 when the FCC intruded in this space.” Such a transition could involve undoing FCC Communications Act Title II reclassification of broadband. “The parade of horribles trotted out to scare the American people about its passage are completely fictitious, especially since parts of the rules never even went into effect,” said O’Rielly. Consumers “should feel confident,” said USTelecom President Jonathan Spalter. American Cable Association President Matt Polka said “nothing changes” in protecting consumer privacy. FCC Commissioner Mignon Clyburn tweeted that she awoke “from what I hoped was a bad dream.” FTC Commissioner Terrell McSweeny also tweeted her opposition. “The Republicans thought they could jam through this harmful law without anyone noticing,” said House Commerce Committee ranking member Frank Pallone, D-N.J. “Despite their effort to hide this latest corporate giveaway, Americans of all political stripes spoke out loud and clear to say that they wanted to keep their personal information private and secure.” Trump “made a grave mistake by signing this disastrous legislation,” said Sen. Al Franken, D-Minn., calling the measure “as anti-consumer as it gets.” Consumer Federation of America Director-Consumer Protection and Privacy Susan Grant said “the fight is not over” and the groups “will continue to push for real privacy protections for Americans." She was echoed by Public Knowledge. "We've raised $23,000 to put up billboards exposing the lawmakers that voted to gut Internet privacy," Fight for the Future tweeted Tuesday. Richard Bennett, network architect and free-market blogger, lamented in a blog post about the “firestorm of delusion” about the issue. “The FCC will now draft a replacement regulation only constrained by the law and the requirement that it’s not substantially similar to the old regulation,” he said. “The new rules will harmonize the FCC’s approach to privacy with the FTC privacy framework.” Since the House passage of the CRA resolution, House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn., has "received so many calls" on the issue, she said in a video, explaining her reasoning for the resolution: "This resolution does not make you less safe on the internet."

Telcordia/iconectiv and FP Investors asked the FCC to approve modifications to a local number portability administrator code of conduct and a trust holding the voting stock in iconectiv owned by its only shareholder, Ericsson Holdings II. The code and voting trust were established to ensure Ericsson wouldn't exert undue influence on iconectiv -- which is taking over LNPA duties from Neustar -- in favor of any telecom service provider, said the request posted Monday in docket 09-109: "The requested Modifications are to be made in connection with an investment in iconectiv by FP Investors ... that, if approved and upon closing, will result in FP Investors owning an approximately 16.7 percent equity interest in iconectiv and being represented on iconectiv’s Board of Directors. To the extent that the Commission must also consent to FP Investors participating in the control of iconectiv, iconectiv and FP Investors hereby request such consent." Telcordia and FP Investors said the transaction will strengthen "iconectiv's neutrality" as LNPA and "moot" any dispute over whether Delaware corporate law would have permitted Ericsson to direct iconectiv's board to act contrary to its neutrality obligations. FP Investors' presence as a minority shareholder "will prevent iconectiv from taking any action that would be harmful to iconectiv and thus to FP Investors," they wrote. A Telcordia March 16 letter (in Pacer) made the mootness argument to a court (see 1609130031) reviewing Neustar's challenge to an FCC order selecting Telcordia/iconectiv as LNPA. A Neustar March 20 letter (in Pacer) to the U.S. Court of Appeals for the D.C. Circuit, which heard oral argument in September (see 1703160050), said Telcordia's letter "essentially concedes" the FCC order was fatally flawed. "The Commission’s erroneous determination that Telcordia is an impartial entity ... even though Ericsson is not, was predicated on the incorrect belief that the fiduciary duties of Telcordia’s directors run to Telcordia and not to Ericsson," Neustar wrote. "Telcordia’s letter does not ask this Court to take any specific action. Telcordia may be implying that the Court should remand without vacatur, on the theory that the proposed future investment in Telcordia will somehow correct the Commission’s legal error. But if the Court concludes that the Commission erred, it should vacate the selection order, leaving it to the Commission to decide how to proceed in the first instance." Meanwhile, North American Portability Management monthly LNPA transition update was posted Monday.

AT&T should have notified 911 centers sooner about the wireless carrier’s 911 outage on March 8, said the District of Columbia Office of Unified Communications. The FCC should set a standard for carrier notifications to public safety answering points (PSAPs), OUC Director Karima Holmes said in a letter to the FCC posted Friday in docket 17-68. “The biggest concern for our agency was the lack of initial notification from the carrier to the affected area PSAPs,” Holmes wrote. “We believe this would have been easily responded to had the centers been notified earlier in the ordeal. Most agencies were notified by other agencies and ‘word of mouth’. Although this proved helpful, it should not have been the foremost route of notification during this severe impediment of emergency services.” FCC staff gave an update last month on its investigation into the AT&T outage (see 1703230075)

The FCC's planned review of the national TV ownership cap could influence how broadcasters react to the expected restoration of the UHF discount, said Wells Fargo analyst Marci Ryvicker at a Media Institute lunch Monday. Commissioners tentatively are to vote April 20 on bringing back the discount (see 1703300066), Though analysts initially thought the ownership cap could be pushed high enough to make some very large combinations possible, Ryvicker said she no longer believes that's likely. Companies could begin announcing deals the day after the FCC’s April 20 meeting, Ryvicker said. Numerous large broadcast entities are expected to seek acquisitions, she said, including Cox, Tegna and Scripps. “Everybody’s a buyer,” Ryvicker said, though she said Tribune is an exception, and is seen as looking to sell. With the NAB Show the week after the April FCC meeting, more dealmaking than usual could happen there, she said. Though investors see ATSC 3.0 as a positive concept, there’s too much uncertainty about the future of the new standard for it to do much to move the needle on broadcast investment, Ryvicker told us. It’s not clear if plans for broadcasters to begin offering up wireless spectrum will materialize, she said. Though Ryvicker said the Wall Street view of broadcast regulation under FCC Chairman Ajit Pai has been “positive,” she said unrealistic expectations for the Trump administration's pro-business policies and the recent failure to repeal the Affordable Care Act made investors leery. Investors are anxious about the growth of streaming media hurting broadcasting, and about ratings showing general decline in TV viewership and increased time shifted viewing, she said. Broadcasting is considered dependent on live viewership, she said: “That’s why there’s a perception that broadcast is dying.” Though spending on political advertisements during the presidential campaign was down, Ryvicker expects those numbers to rebound in 2018, saying the low spending in 2016 was a onetime fluke. Recent negative attention about the placement of online ads could be a boon to broadcast advertising, she said. Total audience measurement for broadcast would help compete with pay-TV and online, Ryvicker said.

FCC Chairman Ajit Pai announced a Rural Broadband Auctions Task Force to spearhead implementation of two planned reverse auctions of USF subsidies that were the subject of orders adopted Feb. 23 (see 1702230019 and 1702230042). The Connect America Fund Phase II (CAF II) auction will offer almost $2 billion in support for fixed broadband providers to connect customers, and the Mobility Fund II (MF-II) auction will offer $4.5 billion to expand 4G LTE mobile coverage -- both over 10 years -- said a commission release Monday. Pai named from within the agency Chelsea Fallon task force director, and Michael Janson and Kirk Burgee deputy directors. Thom Parisi will be chief of staff of the task force, which will draw on senior staffers from across the commission. The FCC is moving "aggressively to close the digital divide" and the task force "will help ensure that taxpayer funds are allocated efficiently for rural broadband deployment and that all Americans who want Internet access are able to get it," said Pai. Beginning the auctions "as soon as possible is a top priority," he added.

The FCC asked a court to remand Lifeline broadband provider (LBP) rules being challenged by state regulators. Chairman Ajit Pai said he "will soon commence a proceeding to eliminate the federal Lifeline Broadband Provider designation process at issue in these cases, recognizing that state governments, not the FCC, have primary responsibility for designating carriers that can participate in the Lifeline program," said the unopposed motion (in Pacer) Thursday in NARUC v. FCC, Nos. 16-1170, 16-1219. Pai announced Wednesday his plan to scrap the LBP process and said he didn't believe staff should approve pending applications (see 1703290025), sparking criticism and some support (see 1703290054).

Jurists asked questions skeptical of a challenge to a 2015 FCC order awarding AT&T $252,496 in damages to refund what it paid to three companies the agency in 2013 found to be "sham" CLECs engaged in "access stimulation" (often called "traffic pumping"). In oral argument Friday, three judges of the U.S. Court of Appeals for the District of Columbia Circuit repeatedly questioned and even disputed assertions of All American Telephone, e-Pinnacle and ChaseCom. Judges Thomas Griffith and Patricia Millett suggested some petitioner arguments were foreclosed because they hadn't challenged the 2013 liability order finding they didn't provide telecom service pursuant to a lawful tariff. All American counsel Jonathan Canis said the FCC found in that order his clients weren't common carriers but in the damages order was treating them like common carriers: "Our argument is you can't have it both ways." Judge David Tatel responded, "Let's assume we don't agree with you," but he then pursued petitioners' argument the FCC improperly decided their state claims against AT&T in the U.S. District Court for the Southern District of New York. A district court judge stayed that case in 2009 and referred various issues to the FCC. Tatel said he read the 2015 damages order as saying there was no evidence to support petitioners' view they provided telecom service, without pre-empting their state claim. But Tatel also told FCC attorney Grey Pash that paragraph 13 of the order could be read to decide the state issue and "does cloud the decision a little bit." It "would have been easier for us" if that paragraph hadn't been included, Tatel said. The case is All American Telephone Co. v. FCC, No. 15-1354.

USTelecom CEO Jonathan Spalter touted a "broadband first" agenda and bipartisan backing for including measures in infrastructure legislation to boost high-speed communications networks. He said any infrastructure bill must go beyond funding "asphalt and airports" because "the ones and zeros of broadband" are increasingly "essential" to connecting Americans. "We are going to be working very closely with the administration and with Congress to advance a national infrastructure plan that does prioritize broadband, that does allow the digital infrastructure of our nation to be more carefully coupled with our brick-and-mortar infrastructure," he said in an interview for C-SPAN's The Communicators being televised April 1 and April 3. He said there's "no daylight between Republicans and Democrats" on broadband's importance: "Those ones and zeros are not red and blue; they're red, white and blue." Spalter said USTelecom is focused on achieving provider "parity" and regulatory "clarity." Broadband providers invested more than $1 trillion over 20 years under "light-touch regulation" until the FCC in 2015 reclassified broadband under Communications Act Title II, an "artifact" of the 1930s with "regressive" rules, he said. “We support net neutrality. We understand that the ability to transact our online lives in an open and free environment is indispensable not only to our democracy but to the future of our economy, and to the health and safety and productivity and education, increasingly, of our families and communities." There should be "no throttling, no blocking -- we all agree on those types of principles," he said. "Where we disagree is how to get there." He predicted policymakers will move away from Title II regulation. He rejected the premise that competition is lacking: "The numbers really are off the chart: American consumers enjoy more broadband choice than any other consumer on the globe." He said next-generation networks will usher in innovations in "contextually aware environments, augmented reality, artificial intelligence, connected vehicles." Spalter called recent legislation to repeal FCC privacy rules a "win, win" for consumers that would lead to "harmonized" FCC and FTC protections for sensitive online data while allowing the benefits of innovation. He said a presidential executive order is expected soon to elaborate a clearer cybersecurity framework: "The threats are increasingly real." He said his association is working with other industry players and the Department of Homeland Security on an "action plan" to "ensure the integrity of our networks, their resiliency and security."

The 2005 Junk Fax Prevention Act doesn't authorize the FCC to require businesses have an opt-out notice on fax advertisements that were solicited by the receivers, so the 2006 solicited fax rule order is in violation of that, a U.S. Court of Appeals for the D.C. Circuit panel ruled Friday, with one judge dissenting. In the opinion, written by Judge Brett Kavanaugh, the court said the act requires an opt-out notice on unsolicited fax ads, but it doesn't do the same for solicited ones, with Congress clearly demarcating between the two. It said the FCC defense "has it backwards" in suggesting an agency can take an action as long as it's not prohibited by Congress: "Congress has not authorized the FCC to require opt-out notices on solicited fax advertisements. And that is all we need to know to resolve this case." The D.C. Circuit ruled the order vacated and remanded to the agency and dismissed petitions challenging FCC waivers given to fax ads sent before April 30, 2015, as moot. Raymond Randolph also joining in the majority decision. Numerous businesses challenged the rule (see 1408040030). In a dissent, Judge Cornelia Pillard said the FCC was reasonable in deciding opt-out notices are needed on all fax ads and that the court's opinion will put extra burdens on recipients trying to control their fax traffic, "precisely the sort of anti-consumer harm Congress intended to prevent." In a statement, Chairman Ajit Pai said the ruling "highlights the importance of the FCC adhering to the rule of law." He said he dissented from the 2014 order reaffirming the notice requirement (see 1410300047) "because, as I stated at the time, the agency’s approach to interpreting the law reflected ‘convoluted gymnastics.’ The court has now agreed that the FCC acted unlawfully. Going forward, the Commission will strive to follow the law and exercise only the authority that has been granted to us by Congress.” With the ruling, the D.C. Circuit "has shown that it is willing to take a hard look at the FCC’s [Telephone Consumer Protection Act] decisions, especially when they are difficult to square with the statute’s text or the practical realities that businesses face," said telecom lawyer Mark Brennan of Hogan Lovells, adding that there now will be increased attention on ACA v. FCC, "another TCPA case pending before the D.C. Circuit that involves the FCC’s interpretation of the term ‘automatic telephone dialing system’ and framework for calls to reassigned wireless numbers.” Friday's decision "reconfirms the proper and appropriate reading of the law," Commissioner Mike O'Rielly said in a statement. "It also signals that the court is willing to call the Commission to task for inappropriately creating authority not provided by Congress. I can only hope this view will be applied elsewhere, such as in the court's other case involving TCPA overreach.”