DOJ may not get involved in a lawsuit to block T-Mobile from buying Sprint in a case involving states, as four more states joined 10 other states' suit against the deal, a court that will hear the case beginning Oct. 7 apparently was told Friday. That's according to an attendee and other stakeholders including a spokesperson for co-plaintiff New York. During a status-type hearing in New York, "a lawyer for T-Mobile noted that it was 'very unlikely' that the DOJ" will sue by participating in this case, recalled New Street Research's Vivek Stalam. That could also mean that Justice won't challenge the states' case. U.S. District Judge Victor Marrero "seems open-minded," the analyst wrote investors. "Referring to the threshold questions of the case, Judge Marrero noted both traditional antitrust questions around market concentration, as well as the impact of 5G, and whether incremental competition in one market could offset anti-competitive effects in another." Four more Democratic AGs joined the suit, Stalam noted, as expected (see 1906140041). Hawaii, Massachusetts, Minnesota and Nevada's addition was reflected in an amended complaint filed Friday, the New York AG's office announced. "State AGs are adamant about continuing with the litigation even if the merger were to receive DOJ and FCC approval prior to the trial date, surmising that any such approvals would require additional review and analysis to ensure compliance with the States’ antitrust concerns," wrote the Rural Wireless Association. RWA backs the suit. DOJ didn't respond to requests for comment and T-Mobile declined to comment. FCC Chairman Ajit Pai said separately Friday that clearing T-Mobile/Sprint is “one of the most critical steps the agency can take” to promote mid-band 5G (see 1906210045).

GAO began a survey Thursday on the comment process. It emailed 10,000 randomly chosen people believed to have commented on federal rulemakings, 2013-17, “to better understand how public comments on proposed rulemakings are submitted to federal agencies, and especially the extent to which the comments submitted electronically are actually from those who are listed as having submitted them,” it said Thursday. Responses will help form the basis of a report to Congress next year.

A federal court sentenced ex-Quintillion CEO Elizabeth Pierce to five years in prison after the ex-chair of the FCC’s Broadband Deployment Advisory Committee pled guilty to wire fraud and identify theft in a scheme to induce investors to sink more than $270 million into her Alaska-based company's fiber network (see 1902120030). Pierce “placed her ambition above the law,” U.S. Attorney Geoffrey Berman for the Southern District of New York said Wednesday. Pierce's arrest in April 2018 (see 1804130055) led the Project on Government Oversight to seek an FCC investigation into her BDAC work (see 1804180038). The agency last year played down her role, and Chairman Ajit Pai told a lawmaker in the fall he and staff weren't aware of the DOJ probe before Pierce resigned as BDAC chair in September 2017 (see 1810040051). The FCC declined comment Thursday.

FCC Commissioner Jessica Rosenworcel said she agrees with a push by Rep. Jerry McNerney, D-Calif., and three other House Communications Subcommittee members for the commission to advance a rulemaking on the 5.9 GHz band. McNerney; Anna Eshoo, D-Calif.; Billy Long, R-Mo.; and John Shimkus, R-Ill., wrote FCC Chairman Ajit Pai Wednesday to “move forward” on a proceeding to “take a fresh look,” saying it's “crucial that we use this resource in an efficient way” given increasing demands for spectrum. “It is important that we re-examine how [the 5.9 GHz band] is being used and how to allocate it in a way that meets the demands of our times and best serves the American people” since the dedicated short-range communications technology it was originally designated for “has yet to be widely adopted,” the lawmakers said. Pai didn't circulate a 5.9 GHz rulemaking ahead of the July 10 commissioners' meeting, increasing perceptions that objections from the Department of Transportation have stalled its progress (see 1906180072). “We shouldn't strand spectrum policy in turn-of-the-century ideas about what these airwaves can do,” Rosenworcel tweeted Thursday. “Let's take a fresh look.”

The FCC moved up its August commissioners’ meeting, from Aug. 2 to Aug. 1, at 10:30 a.m., it said Wednesday.

CTA supported proposed updates to FCC rules for over-the-air reception devices, in reply comments posted Tuesday in docket 19-71. Cities and others continue to counsel restraint (see 1906050014). Other groups are raising RF health concerns. “The availability of broadband is an important factor in the growth of emerging technologies,” CTA said. “Emerging technologies use smaller form factors than previous generation’s macro towers, and these smaller form factors must be closer to end-users. Over the past two years, the Commission took important steps to streamline state and local review of infrastructure siting. … Expanding the OTARD rule to include all fixed wireless equipment is a reasonable next step for the Commission to consider.” Incompas also supported the change. “Fixed wireless is a solution that some of our members use to deliver critical voice and broadband services to their customers,” it commented: “INCOMPAS supports the Commission’s proposal to eliminate the restriction that currently excludes hub and relay antennas from the scope of the Commission’s OTARD provisions.” The U.S. Conference of Mayors and Los Angeles, Boston, Dallas and other local governments said the FCC doesn’t have the authority to act. “The Commission lacks the legal authority, delegated, implied, or ancillary, to take the actions it contemplates,” filing said. “Parties that are supportive of the proceeding fail to demonstrate that there is a predicate for action,” the cities said: “Numerous non-governmental parties offer insights that there is no national movement or scheme to deny OTARD deployments, and the Commission’s proposed actions could retard current plans for wireless developments.” San Francisco also opposed the rules. “The Commission cannot extend the OTARD rule simply because the Commission believes it will be speed-up broadband deployment,” it said: “Where, as here, the Commission is acting under a directive from Congress, the Commission must show that its actions are consistent with that directive, and are not prohibited by other federal laws.” The Wireless ISP Association, which asked for the change, said initial comments broke down into two camps. “Those in the real estate business that seek to maintain the status quo giving zoning and homeowners’ associations unmitigated control over the way their residents’ access video content, and those providers that desire a limited change to the OTARD rule so that consumers have more choices and providers are better able to extend service and offer competitive choice,” WISPA said.

DOJ settled with five more broadcasters over sharing “competitively sensitive” advertising rate information, said a release and amended complaint Monday night. The new settlements are with CBS, Cox, E.W. Scripps, Fox and Tegna, after a previous settlement with seven including Nexstar, Sinclair and Tribune. The new pact also involves the Cox-owned ad sales company CoxReps. The companies involved “agreed with other entities in many metropolitan areas across the United States to exchange revenue pacing information, and also engaged in the exchange of other forms of non-public sales information,” the release said. Pacing data compares a station’s revenue for a certain time period to the same time the previous year. By sharing that information, the broadcasters were “better able to anticipate whether their competitors were likely to raise, maintain, or lower spot advertising prices” which helped inform their pricing strategies, DOJ said. “The information exchanges harmed the competitive price-setting process in markets for the sale of spot advertisements.” Justice didn’t comment on the monthslong gap between the resolution of accusations against these five broadcasters and the previous seven, but the release refers to them as “new” defendants. The release also singles out Fox as helping DOJ reach an “expeditious resolution” of the matter. For seven years, the broadcasters must refrain from sharing competitively sensitive information, adopt “rigorous antitrust compliance and reporting measures,” and cooperate with DOJ’s “ongoing investigation,” the release said. CoxReps must also implement firewalls in markets where it represents more than one broadcast station. Cox has been cooperating with the DOJ in the investigation "over the last many months,” said a spokesperson. “We have agreed to a consent decree that is consistent with our current business standards at our TV stations and in the CoxReps business.” Scripps "disagrees with the DOJ’s allegations,” a spokesperson said. “We decided settling with them was our best option to remain focused on our business.” CBS, Fox and Tegna didn’t comment Tuesday. “The DOJ accuses more broadcasters, who endlessly tout how they serve their local communities, of engaging in practices which allowed the station owners to overcharge local businesses in their communities for ads,” said America's Communications Association Senior Vice President-Government Affairs Ross Lieberman in a pair of tweets. “If broadcasters really cared about localism, they wouldn’t rip off the the ad buyers in the markets they serve,” he said. The DOJ investigation into broadcaster ad data sharing arose out of its evaluation of the Sinclair/Tribune deal, DOJ officials said.

FCC infrastructure orders “rest on a highly strained reading” of the Telecom Act and violate the Constitution, said New York City and NATOA jointly at the 9th Circuit U.S. Court of Appeals. Intervenor briefs were due Monday (see 1906170049). "Compelling cities to lease their rights-of-way and municipally owned property on the FCC’s terms implicates the Takings Clause and the Tenth Amendment by denying just compensation, infringing on local police powers, intruding on traditionally local spheres of control, and conscripting local governments to administer a federal agency’s regulatory agenda,” the city and local government association wrote (in Pacer). "But this Court need not actually determine whether the Orders are irrational or unconstitutional, because the FCC lacks authority to take these steps that -- at a minimum -- dramatically shift the federal-state balance and intrude on the core of traditional local prerogatives.” Several state associations of municipal utilities said the September order endangers public safety. It “is a blatant effort by the FCC to strengthen the hand of carriers in negotiations with local governments over small wireless deployment, and to limit the ability of local governments to negotiate to protect the public interest around small wireless facilities,” filed (in Pacer) Iowa, Minnesota, Missouri and Arkansas municipal utility associations. That “will significantly and negatively impact local governments’ ability to protect and serve public property, safety and welfare,” they said. California, Virginia and Florida municipal utility groups wrote (in Pacer) that “Congress explicitly denied the Commission authority to regulate the rates, terms, and conditions of access to public power utility poles.” The order was challenged on similar grounds by American Municipal Power (in Pacer) including electric systems in Delaware, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West Virginia, and the Nebraska Municipal Power Pool (in Pacer), representing communities in Colorado, Iowa, Kansas, Nebraska, North Dakota and Wyoming.

Commissioners will consider at the July 10 FCC meeting an NPRM on broadband deployment in multiple tenant environments (MTEs), an order to wrap together and rule on a business data services transport and USTelecom forbearance proceeding, and an NPRM on a connected care telehealth pilot program, Chairman Ajit Pai blogged Tuesday. The NPRM and declaratory ruling on MTEs follows a 2017 notice of inquiry in docket 17-142 (see 1706220036) on "the unique challenges to deploying broadband to apartment, condominium, and office buildings," Pai wrote. The agency wants to decide whether to back or pre-empt a San Francisco code that requires multitenant buildings to allow residents to access competing broadband providers (see 1811140017). The agency will release an order next month that wraps together two related issues, on a business data services transport proceeding (docket 16-143) and a USTelecom petition for unbundled network elements forbearance (docket 18-141), an FCC official said Wednesday. USTelecom and other telco incumbents say they should no longer be required to unbundle and resell access to some of their networks at below-market rates (see 1905140012). Competitive LECs say there's not enough facilities-based competition in all areas to warrant nationwide forbearance (see 1906130005). Pai wrote that the agency plans to "grant relief only where there is actual or potential competition that ensures reasonable prices." Also at the meeting, commissioners will vote on an NPRM on a three-year, $100 million USF telehealth pilot called connected care designed to support eligible healthcare providers to low-income patients outside hospitals and other traditional healthcare facilities. The Wireline Bureau initiated a notice of inquiry (docket 18-213) in August to wide support (see 1809110039). Commissioner Brendan Carr is leading the effort and will offer more details at the July meeting, Pai wrote.

The FCC overreached with its September infrastructure order to streamline 5G small-cells deployment, said Communications Workers of America, the National Digital Inclusion Alliance and Public Knowledge in an amicus brief Monday at the 9th Circuit U.S. Court of Appeals. Intervenor briefs were due Monday, after initial briefs last week (see 1906100021). “To protect public welfare and address the digital divide, states and localities must be able to charge appropriate fees,” said the CWA brief. The FCC shifted (in Pacer) political responsibility for unpopular rules to local governments, said the Association of Washington Cities. “The FCC failed to consider that the regulatory structure it created must be implemented by local government agencies whose powers and authority are structured, pursuant to and limited by the laws under which they are created.” Forcing localities to act quickly on applications threatens public safety, they said. Municipal utilities should be exempt to federal pre-emption on small cells, said Missouri River Energy Services (MRES), representing energy utilities in Iowa, Minnesota, North Dakota and South Dakota. Municipal utilities act in a proprietary capacity, and “the FCC's understanding of federal preemption is at best inapplicable to municipal utilities,” it said (in Pacer). MRES members are in two states with small-cells laws exempting municipal utilities, and one in Marshall, Minnesota, negotiated a small-cells agreement without needing FCC action, it said. "Their experience with collocation of small wireless facilities does not support the FCC’s Order and affirms that the issue should be left to state and local control.” The Berkshire-Litchfield Environmental Council (BLEC) supported (in Pacer) Maryland’s Montgomery County, which argued the agency inadequately addressed comments on the FCC's outdated RF emission standards. Studies show negative biological and environmental effects of 5G wireless exposure, said BLEC. Small cells have amplified RF safety concerns (see 1906140050).