FCC General Counsel Thomas Johnson plans to spend 2020 fighting to uphold FCC pre-emptions of state and local governments in court, he said in Monday remarks at a TaxWatch event. “States and localities have litigated heavily against the FCC whenever it has attempted to streamline regulations,” including now in cases about wireless infrastructure at the 9th Circuit U.S. Court of Appeals and cable franchise changes at the 6th Circuit, he said. “We feel confident that our actions are well supported by the law.” Many states and localities have been helpful 5G partners, he said. “But too often, state and local governments adopt regulations that resemble Cerberus, the fearsome three-headed dog of Greek mythology that guarded the gates of Hell.”

After failing to convince a federal judge to disqualify Glenn Pomerantz from representing states in next week’s T-Mobile/Sprint trial (see 1911210068), DOJ Wednesday asked (in Pacer) the U.S. District Court for Southern District of New York to keep confidential material that the Munger Tolles lawyer had access to when he represented the U.S. in litigation over the failed AT&T/T-Mobile. DOJ said it went to Pomerantz before asking the court, but he refused their proposals. “Amending the protective order here is necessary to protect the United States’ confidential information, and will do so with no effect on the parties’ trial preparation or resources,” DOJ said. “Allowing the confidential information of a cooperating third party in a prior investigation to be used in a later lawsuit could seriously chill third parties’ participation in future investigations.” Judge Victor Marrero ruled (in Pacer) Monday that foreign market studies and testimony about T-Mobile/Sprint won’t be allowed in trial. “The Court finds that the relevance of wireless services mergers in foreign markets is dubious at best,” Marrero wrote. “Numerous salient factors, including market structure, consumer demographics, regulatory frameworks, and infrastructure may differ significantly and likely yield only an apples-to-orange comparison.” Consideration also would delay trial, he said. Marrero also excluded University of California, Berkeley professor Carl Shapiro's opinion reviewing changes in AT&T and Verizon stock prices shortly before and after big news on the T-Mobile/Sprint merger. That opinion doesn’t rely on enough factors or data, Marrero said. “The Court is skeptical of the reliability of an opinion that extrapolates the likelihood of anticompetitive effects from between five to seven discrete news articles covering a period of well over a year.” Marrero deferred until trial whether to admit testimony by Santa Clara University law professor Catherine Sandoval on FCC procedures.

The FCC wants to update its record to address RF safety challenges "presented by evolving technological advances," it said Wednesday in docket 19-226 after a 5-0 vote. Commissioner Jessica Rosenworcel concurred, without issuing a statement. The action includes an order and NPRM. After reviewing the extensive record submitted in response to an inquiry, "we find no appropriate basis for and thus decline to propose amendments to our existing limits at this time," the FCC said. Chairman Ajit Pai circulated an item a few months ago to keep current limits in place, while making a few updates (see 1908080061). "Despite requests from some to increase and others to decrease the existing limits, we believe they reflect the best available information concerning safe levels of RF exposure for workers and members of the general public, including inputs from our sister federal agencies charged with regulating safety and health and from well-established international standards," the commission said now. "Based on our existing limits, we revise our implementing rules to reflect modern technology and today’s uses. We streamline our criteria for determining when a licensee is exempt from our RF exposure evaluation criteria." The NPRM asks about "targeted proposals on the application of our RF emission exposure limits for future uses of wireless technologies" and proposes to "formalize an additional limit for localized RF exposure and the associated methodology for compliance for portable devices operating at high frequencies." It also proposes allowing wireless power transfer equipment under parts 15 and 18, with specific exposure limits. CTIA responded that "as the FCC states, 'no scientific evidence establishes a causal link between wireless device use and cancer or other illnesses.'”

Sprint and the FCC said they're on top of problems on Lifeline counts. The company overestimated Lifeline wireless customers it serves for longer than first thought, reported (login required) The Wall Street Journal Tuesday. Commissioner Geoffrey Starks tweeted the “allegations are serious and @FCC must hold @Sprint fully accountable.” The carrier takes Lifeline obligations seriously, and made an error "years ago in Sprint’s technical compliance with the FCC’s complex Lifeline rules,” a Sprint spokesperson emailed. “While the facts make clear that Sprint did make a mistake, it is also clear that Sprint corrected that mistake and cooperated with regulators. This error from 2013-2014 is distinct from the error that Sprint disclosed this August.” Chairman Ajit Pai “in September asked the Enforcement Bureau to investigate the full extent of Sprint’s non-usage problem,” an FCC spokesperson emailed now. “That investigation is underway.” An Oregon Public Utility Commission probe kick-started the FCC investigation (see 1909240023).

The FCC made permanent a five-year budget approach to E-rate category 2 spending for libraries and schools in an order released Tuesday afternoon and OK'd Nov. 20 in docket 13-184. The vote was 5-0, with Democratic Commissioners Jessica Rosenworcel and Geoffrey Starks concurring, as expected (see 1912020046). The order replaces a two-in-five-year budget approach deemed problematic by commenters. Funding floors for small and rural anchor institutions will be increased to $25,000. The new rules take effect in the 2021 funding year, when all E-rate applicants will begin new fixed five-year budget cycles. It extends the five-year pilot through the 2020 funding year. The agency declined to add services to its eligible services list. Commissioner Mike O'Rielly said that while he "would have been open to a much more fundamental review of our E-rate budgetary framework" and he disfavors the use of fundamentally flawed expenditure formula, he voted yes to offer applicants "stability and predictability in seeking funds for internal connections." He added he wants to discuss including network security in a future list of eligible services, but doesn't want to open discussions to "vast new laundry lists of permissable expenditures." Rosenworcel is concerned urban libraries will see funding levels cut. "The agency takes steps to strengthen the program by cementing in place essential E.Rate 2.0 reforms" like allowing school districts or library systems as a whole to seek money, she wrote. "I am concerned that the record before us supports a greater per pupil allowance than what is adopted." Commissioner Geoffrey Starks sees "work to do. Five years ago, the Commission established a goal of 1 Mbps internet access per student. Unfortunately, 62 percent of school districts still do not meet that standard."

The 9th Circuit U.S Court of Appeals scheduled Feb. 10 oral argument on challenges of FCC wireless infrastructure orders, the court said Sunday. It starts at 9 a.m. PST in Pasadena, California. The 9th Circuit agreed in October to fast track argument (see 1910080029). Three days later, the 9th Circuit will hear argument on the FTC's antitrust case on Qualcomm (see 1912020029).

Qualcomm has monopoly power in two key chip markets, maintained by refusing licenses to rival chipmakers, the FTC argued to the 9th U.S. Circuit Court of Appeals (see 1910100017). Oral argument is set for 9:30 a.m. Feb. 13 in San Francisco. Qualcomm and DOJ said previously that the lawsuit and lower court’s injunction threaten national security, given Qualcomm’s role in leading 5G advancement against Chinese rivals. The FTC called those claims “purely speculative.” Intel supported the commission in the case, also announcing it agrees with the district court’s finding “Qualcomm’s licensing practices have strangled competition in the CDMA and premium LTE modem chip markets for years, and harmed rivals, OEMs and end consumers.” Intel claims it “suffered the brunt of Qualcomm’s anticompetitive behavior, was denied opportunities in the modem market, was prevented from making sales to customers and was forced to sell at prices artificially skewed by Qualcomm.” Ericsson and Samsung previously argued in favor of Qualcomm, with Samsung saying contract and patent law are “better suited” for settling disputes about fair, reasonable and nondiscriminatory (FRAND) terms. American, Japanese and German automaker groups said prices of cars with 5G will likely increase if Qualcomm wins. The Alliance of Automobile Manufacturers and Denso with Continental Automotive Systems filed briefs. “Automakers have been forced into unnecessary and inefficient [standard-essential patent] licensing negotiations ... even though chip sales that exhaust patent rights ... would negate the need for such negotiations while allowing the patentee to be compensated for its inventions based on the price charged for a chip,” the alliance argued. That will worsen if Qualcomm practices are ratified, it said. The Computer & Communications Industry Association supports the agency, saying Qualcomm has an “antitrust duty” to license competing chip manufacturers on FRAND terms. Open Markets also supported the FTC, saying in a release that Qualcomm practices compel “smartphone and tablet producers to pay exorbitantly high amounts for their chips.” The company didn’t comment Monday. The 9th U.S. Circuit Court of Appeals scheduled Feb. 10 oral argument on challenges of FCC wireless infrastructure orders (see 1912020018).

An item to modernize Category 2 spending in E-rate was deleted from the FCC's circulation list, updated Friday. It was approved 5-0 and Democratic concurrences are possible, an agency official said Monday. The item, which went on circulation last month, is expected to make permanent funding for broadband-related services inside libraries and schools (see 1910290016). "We do hope that it's soon because libraries are planning now" for next year's budgets, and they need the certainty of a rule, said Marijke Visser, American Library Association senior policy advocate, about possible forthcoming release. Visser said in an interview Monday that ALA seeks an increase to libraries' per-square-foot funding levels.

Verizon wants the FCC to modify language in a draft order on remand and declaratory ruling to develop a unified intercarrier compensation regime related to over-the-top VoIP services, said a Wednesday filing in docket 01-92 on its meetings with Wireline Bureau officials. "The modified language would emphasize that LEC-VoIP partnerships may assess charges for non-end office access services only if they provide the functional equivalent of such services, and thus help avoid new arbitrage schemes based on non-end office rate elements."

After more than 45 years with the FCC, including 13 as head of the Office of Engineering and Technology, Julius Knapp will retire effective Jan. 3, he said Wednesday. FCC Chairman Ajit Pai said Knapp "is an FCC institution, and I will miss him for his expertise, his leadership, and his friendship." Knapp was named OET deputy chief in May 2001 and chief in October 2006. "I've loved it," Knapp told us. He said, with his wife retiring and after more than 45 years with the agency, the timing was right. He said OET leadership transition "will be addressed in due course." Former Chairman Tom Wheeler emailed that Knapp "is a National Treasure," and has been "a guide for Chairman after Chairman as the world evolved from analog to digital. Forty-five years at the FCC means Julie was pre-G; he has seen it all." Commissioner Geoffrey Starks said Knapp has been "a role model for me and countless other FCC employees [and] the gold standard for civil servants." The FCC "faces a monumental loss," Commissioner Mike O'Rielly said. Knapp helped "to lead our nation’s communications policy across many Administrations and with so varied a set of Commissioners." Knapp "is such a fantastic authority, a terrific teacher, and an extraordinary colleague whose input has improved countless decisions at the agency," said Commissioner Jessica Rosenworcel. Commissioner Brendan Carr called Knapp "one of the most consequential public servants the federal government has known." With most agency staffers lawyers, “Julie's knowledge & advice were critical in making sound policy,” tweeted Gigi Sohn, fellow at the Georgetown Law Institute for Technology Law & Policy, who was at the FCC under Wheeler. “One of the few things people could still agree on in D.C. is the integrity of Julie's engineering analysis,” said Public Knowledge Senior Vice President Harold Feld. The Wireless ISP Association and Qualcomm also had accolades.