FTC Commissioner Maureen Ohlhausen sees the need for repeal of the FTC’s common-carrier exemption as all the more important. That is in light of possible FCC reversal of its Communications Act Title II reclassification of broadband under a Republican majority (see 1611100041) and questions surrounding the FTC's request for an en banc rehearing of 9th U.S. Circuit Court of Appeals ruling on its fight with AT&T Mobility (see 1611080053), she said Tuesday at an event hosted by the Phoenix Center. “I would hope Congress might consider at least repealing the common-carrier exemption for the consumer protection side,” said Ohlhausen when considering what might follow an FCC Title II reversal. “The problem with the consumer protection side is you don’t have somebody else ready to step into the space.” Ohlhausen is expected to be in the FTC majority next year. She called the exemption “outdated” and referred to the bipartisan objections to retaining it. “The reasons we’re keeping the FTC out of the picture don’t really make sense anymore.” The 9th Circuit ruling “is a broad decision,” she added. “Of course, it is only one court of appeals and we have asked for rehearing.” She has a forthcoming law review article about taking competition seriously in the broadband space, she said, defending the role of antitrust principles playing a “fundamental approach to all industries, including internet industries.” She objects to those who say antitrust only takes economic values into consideration, calling it a “misunderstanding of how markets work.” She also addressed broader antitrust concerns. “I don’t want to see the liability for activity in the economy turn on whether your conduct, your merger goes to the FTC or the DOJ,” she said. “I think that causes a problematic state of affairs and a lack of certainty for companies.” She backed the Standard Merger and Acquisition Reviews Through Equal Rules Act (HR-2745), a partisan measure that passed the House this fall (see 1603230047).

Infrastructure policy kept coming up this week, with an eye toward President-elect Donald Trump’s plan for a $1 trillion infrastructure funding package that he has said he wants to advance before Congress early next year. “The whole idea around infrastructure is something that not only crosses lines between parties but it also crosses lines between federal government, state governments and local governments,” said Verizon Smart Communities Vice President Mrinalini Ingram Monday, speaking at an event hosted by Bloomberg Government and referring to smart city and autonomous vehicle initiatives. She called for “synergies” and “seamless” coordination involved in such infrastructure: “Look at infrastructure as a whole.” Chamber of Commerce Transportation Infrastructure Executive Director Ed Mortimer said the Chamber backs a “long-term sustainable funding solution,” questioning the merits of repatriated tax funds -- one debated source of funding for infrastructure as part of a greater package -- as sufficient. AFL-CIO Policy Director Damon Silvers mentioned a need for broadband funding, part of Trump’s proposal: “There is a need for broadband both in our nation’s inner cities and in our nation’s rural communities,” he said, while also questioning the racial climate that he says is preventing a fulsome infrastructure discussion.

Telecommunications Industry Association CEO Scott Belcher is leaving at year-end, TIA said in a Friday news release. A search for a new CEO is underway, and incoming Chairman David Heard will serve as interim CEO starting Dec. 1, said TIA, which, in conjunction with a board meeting this week, will also present "a new slate of board leaders with strong industry experience." Belcher "has helped the organization establish a strong operational foundation and strategic plan from which to grow," said current Chairman Mark Walker. "In line with this, we will seek a new leader with strong industry knowledge and technology background.” Belcher was named CEO two years ago (see report in the Oct. 9, 2014, issue). A TIA spokeswoman told us by email Monday: "At this time, no one else is leaving TIA, and no one else has left recently.”

Ex-Rep. Henry Waxman, D-Calif., warned FCC Commissioner Mignon Clyburn that "millions of Lifeline consumers would be adversely affected" if the agency proceeds with a "reduction in the de-enrollment for nonusage rule" from 60 days to 30 days on Dec. 2, as scheduled. "As my client, TracFone described in a motion to stay or defer the effective date of the revised rule, many Lifeline consumers temporarily cease using the service for short periods due to illness, hospitalization, or due to broken or misplaced handsets. However, those consumers fully intend to remain in the program," said Waxman, chairman of Waxman Strategies, in a filing posted Monday in docket 11-42 reporting a call with the Clyburn. "TracFone estimates that it would have had to de-enroll from the Lifeline program approximately 1.1 million low-income households during the first quarter of 2016 had the revised rule been in effect at that time." He asked the FCC to stay or defer the effective date, or grant a blanket interim waiver as requested by the Lifeline Connects Coalition (see 1610260033). On another Lifeline deadline issue, USTelecom said Alaska, Kansas, Kentucky, Minnesota, Nebraska, Nevada, New Jersey and Ohio have made legal changes such that they no longer are believed to need a waiver the association is seeking to give states more time to align their Lifeline rules with broadband and administrative changes to the federal program to assist low-income telecom users. The association said it understands that Oregon, South Carolina and Washington, D.C., will soon be making such changes, which would leave 16 states and Puerto Rico still needing the waiver relief (see 1610210046). Michigan, Missouri, New York, Utah, Vermont and Puerto Rico have filed in support of the petition and California, Vermont and Wisconsin have filed separate waiver requests, a USTelecom filing said. GVNW Consulting meanwhile supported an NTCA/WTA petition seeking a temporary waiver for their members and similarly situated rural telcos "of the language contained in the Lifeline Modernization Order that requires 'ETCs [eligible telecom carriers] receiving high-cost support [to] offer a Lifeline-supported standalone broadband offering where the ETC is required to offer Lifeline-supported BIAS [broadband internet access service].’”

Just providing Internet access doesn't infringe copyright, and a U.S. District judge in Alexandria, Virginia, "effectively guided the jury" to do exactly what the Supreme Court has cautioned against in other copyright infringement cases -- to find contributory infringement based solely on not taking active steps to avert infringement by a third party, CTA and Computer & Communications Industry Association said in a joint amicus curiae brief (in Pacer) filed Monday with the 4th U.S. Circuit Court of Appeals. The brief was filed in Cox Communications' appeal of the lower court's ruling in favor of BMG Rights Management in its torrent piracy lawsuit against the cable ISP (see 1608190030). CTA/CCIA said Judge Liam O'Grady "compound[ed] this error" when he instructed the jury that it could find willful blindness from a general awareness of possible infringement instead of following Supreme Court precedent that requires deliberate actions. The lower court also held that the Digital Millennium Copyright Act wasn't a defense yet let the jury base its verdict on facts related to whether Cox had satisfied its safe harbor immunity from damages under the DMCA, CTA/CCIA said. "The jury was essentially invited to draw inferences of liability" from Cox not shutting off alleged copyright infringers rather than from whether the cable operator's workers took any volitional acts to encourage copyright infringement, the trade groups said. They called the ruling "contrary to sound public policy," arguing it undermined congressional intent in Section 512 of the DMCA, which covers liability limitations. CTA/CCIA called for the judgment against Cox to be reversed and for the case to remanded for entry of judgment in favor of the cable ISP or a new trial. Counsel for BMG didn't comment.

NAB and the News Media Alliance appealed the FCC’s 2014 quadrennial review and accompanying media ownership rules in the U.S. Court of Appeals for the D.C. Circuit, according to an NMA news release and court filings. “It makes no sense at all to prevent newspapers from helping to fund this essential activity by receiving capital and collaboration by an aligned industry such as broadcasting,” said NMA President David Chavern in the release. The orders violate the Administrative Procedure Act and the Communications Act, since the FCC retained rules against newspaper/broadcast cross ownership “with only minimal change” despite “substantial" evidence that the rule no longer serves the public interest, said the NMA appeal (see 1608250063). NAB also filed its own appeal of the quadrennial review in the D.C. Circuit Monday, as expected (see 1611090061). Like NMA, NAB also challenged the FCC's action as a violation of the APA and agency discretion. "The broadcast ownership rules are relics of a long-gone era," NAB said in its appeal. "Many have not been updated in several decades, despite dramatic evolution in the communications landscape that has eroded the rules' original public-interest justifications and fundamentally altered the nature of competition." Prometheus Radio Project filed an appeal in the 3rd U.S. Circuit Court of Appeals. Though NAB and NMA filed in time to be part of an expected lottery to determine where the case should be heard, both associations said they wouldn’t object if the case is transferred to the 3rd Circuit, as many expect it to be. The FCC didn't comment.

The FCC Disability Advisory Committee will meet Dec. 6 from 9 a.m. to 3:30 p.m. in the Commission Meeting Room, said a public notice Thursday, covering a variety of issues from IoT accessibility to video description. The gathering will hear reports on video mail-to-text services for video relay services for consumers who are deaf-blind; mobile device support for USB connectivity to Braille displays; best practices for development and testing of augmentative-alternative communication devices; portability of phone numbers between IP-enabled relay providers; IoT accessibility; and video description services. The event also will hear a presentation on the future of TV, the PN said. The meeting also will be webcast with open captioning.

FCC Commissioner Mignon Clyburn invited further "pitch" submissions by Nov. 28 for her "#Solutions2020 Call to Action Plan" she intends to release by year-end. "Pitch submissions should propose a specific solution to an issue facing the communications sector and be a maximum of 350 words in length," a Clyburn release said. Parties are "encouraged to submit a 'pitch' that falls within one of the six categories" she outlined recently for dealing with communications challenges: "Ensuring Affordable Communications, Empowering Communities, Broadband as a Driver of Improved Health Services, Promoting a More Diverse Media Landscape, 5G and Beyond for All Americans [and] Enhancing Consumer Protections." The senior-most FCC member has been conducting a listening tour as part of her action-plan effort (see 1610190044 and 1610040020).

Law firms Arnold & Porter and Kaye Scholer will combine to become Arnold & Porter Kaye Scholer beginning Jan. 1, Arnold & Porter said in a statement on its website Thursday. The combined firm will have around 1,000 lawyers working at nine domestic and four international offices, it said. The new firm will have close to 400 lawyers in Washington, D.C., A&P said. “Arnold & Porter's focus aligns with Kaye Scholer's critical strengths in bankruptcy, corporate, finance, intellectual property, litigation, real estate, and tax,” the release said. Current Arnold & Porter Chairman Richard Alexander will chair the combined firm.

The transition team for president-elect Donald Trump has staffers tracking different government agencies, according to a chart circulating among industry officials. Jeffrey Eisenach, a visiting scholar at the American Enterprise Institute, is the staffer listed as tracking the FCC, as expected (see 1611090034 and 1611090038). Eisenach defended Trump’s telecom stances on C-SPAN’s The Communicators this month (see 1611040057). Bill Walton and David Malpass are the transition staffers listed as overseeing the transition’s advisers on economic issues, including Eisenach and Ray Washburne, a Texas investor who’s tracking the Commerce Department. Washburne has been vice chairman of The Trump Victory Committee. Michael Torrey is the transition staffer eyeing the Agriculture Department, which includes the Rural Utilities Service, and Kevin O’Connor is tracking the Justice Department. The Trump transition didn't confirm the authenticity of the circulating chart. “My No. 1 priority in the coming two months is to try to facilitate a transition that ensures our president-elect is successful,” President Barack Obama said Thursday after meeting with Trump. Trump has created a website and Twitter account for his transition effort. “We’ve got a lot of really great priorities,” Trump told reporters Thursday at the Capitol, expressing interest in “big-league jobs.” Great speculation has surrounded Trump’s leading advisers and surrogates and what positions they could receive in the incoming administration. “I’d love to be the person that comes up with a solution to cybersecurity,” Trump backer Rudy Giuliani, former mayor of New York City, told Fox News Thursday, declining to comment specifically on a possible administration role as attorney general or Homeland Security chief. “Now, I’d like to invent the real overall holistic solution to cybersecurity.” Giuliani, who chairs the cybersecurity practice at Greenberg Traurig, is listed as taking a leave of absence currently.