Incompas urged a court to reject an FCC motion to delay Feb. 1 oral argument on its net neutrality reversal due to the partial government shutdown (see 1901150011). Denial would expressly authorize the FCC to proceed with the case despite Anti-Deficiency Act (ADA) restrictions absent regular funding, and be in line with U.S. Court of Appeals for the D.C. Circuit precedent denying such government stay requests during shutdowns, said the group's opposition Wednesday in Mozilla v. FCC, No. 18-1051. Incompas, one of many petitioners challenging the commission order, cited the need for a "timely decision" to protect consumers and edge providers from the risk of "substantial harm" due to possible ISP network interference, adding that delay would disrupt petitioner preparations. The court "may likely deny this motion," emailed Morgan Lewis communications attorney Andrew Lipman, citing opposition and precedent: "My sense is the FCC recognizes this distinct possibility in the way they drafted the Motion. I believe they will be ready to go on Feb 1." It seems the FCC expects the motion to be denied "but that the denial acts as authorization to continue preparing for the argument ... because the court requires it," emailed Daniel Lyons, Boston College associate law professor. Citing "aggressive" cost cutting by federal courts and public defender offices, the Administrative Office of the U.S. Courts confirmed Wednesday its intent to extend judiciary operations at least through Jan. 25 "by using court fee balances and other 'no year' funds." But "at some point in the near future, existing funds will run out if new appropriated funds do not become available." After that, only "mission-critical work" would be allowed, including case resolution, with each court determining staffing needs.

Legitimate collection calls for FCC fees are still being made to broadcasters during the shutdown, under the auspices of the Treasury Department, blogged Pillsbury Winthrop broadcast attorney Scott Flick Tuesday. Flick had raised concerns about phone scammers taking advantage of the shutdown (see 1901070046) but discovered that an apparently legitimate collection effort overseen by Treasury is being funded, he said. Broadcasters should remain cautious about scam calls, especially because outstanding fees can’t be checked on the FCC’s fee filer and red light databases during the shutdown, Flick said. “If you aren’t aware of any outstanding payment due, you may want to wait until the FCC reopens and the debt can be confirmed before sending any payment.” He said legitimate callers from Treasury won’t ask for payment in gift cards, and should oblige requests to send documentation of the debt, such as Form 159B. Nonpayment of FCC fees can lead to debts being forwarded to actual collection agencies and holds on FCC applications, Flick said. The FCC and Treasury Department didn't comment.

The FAA released long-awaited proposed rules that would allow drones to fly at night and over people without waivers. Unmanned aircraft systems were a big topic last week at CES (see 1901100025). No federal aviation officials attended because of the partial federal shutdown. Transportation Secretary Elaine Chao was expected to speak but instead spoke Monday at the Transportation Research Board’s annual meeting. “The proposed rule would allow drones to make routine flights over people without a waiver or an exemption under certain conditions,” Chao said. “These conditions depend upon the level of risk to people on the ground, and are spelled out clearly in the proposal.” DOT released Advance NPRMs on safe and secure operation of drones. Both (see here and here) must be published in the Federal Register. The safety ANPRM “identifies major drone safety and security issues that may pose a threat to other aircraft, to people on the ground or to national security,” Chao said. “It solicits for consideration recommendations to reduce these risks as drones are integrated into our national airspace.” DOT selected the Nevada UAS Test Site Smart Silver State; Northern Plains Unmanned Aircraft Systems Test Site, North Dakota; and the Virginia Tech Mid-Atlantic Aviation Partnership to participate in the unmanned aircraft systems traffic management system pilot project. “The pilot project, through September 2019, is intended to develop and demonstrate a traffic management system to safely integrate drone flights within the nation’s airspace system,” DOT said. “The pilot project will create a shared information network and gather data that can be used for future rulemakings."

The 28 GHz band auction took a snow day Monday after a weekend Washington storm. The auction closed at $695 million Friday (see 1901110041). The auction is scheduled to reopen Tuesday when it moves to stage 3 and six daily rounds. A lawyer with carrier clients said it's difficult to predict, but the first high-band auction appears to be reaching its final days after 126 bidding rounds. The Office of Personnel Management closed federal offices in Washington Monday but said emergency employees and telework employees continue to work.

Oral arguments for January and February "will go on as scheduled," said the U.S. Court of Appeals for the District of Columbia Circuit's updated webpage. Previously it had mentioned only January's arguments. Challenges to the FCC's net neutrality rollback order are scheduled to be heard Feb. 1 in Mozilla v. FCC, No. 18-1051.

Between $50 and $100 is a reasonable price when faced with a legitimate claim for using a copyright-protected image, IP lawyer-experts agreed Friday at an FCBA event. Not all claims should be considered legitimate, said Fletcher Heald's Kevin Goldberg, NPR Senior Associate General Counsel Ashley Messenger and Ballard Spahr's Adrianna Rodriguez on “copyright trolls.” With a legitimate claim, a settlement is infringer's first thought, Goldberg said, and the object is to come to conclusion as quickly and painlessly as possible. Speakers stressed the importance of rigorous record-keeping to ensure online publishers know when they’re using content legally. Rodriguez suggested something as simple as an Excel spreadsheet with rights information. Messenger said NPR handles about one claim per month, and it’s usually the result of a good-faith editorial-staff mistake. The $100 range for a photo is reasonable, she said. Goldberg agreed.

House Commerce Committee Chairman Frank Pallone, D-N.J., wrote FCC Chairman Ajit Pai seeking an emergency Monday briefing for committee staff on why the commission hasn't ended top wireless carriers' unauthorized location data disclosures (see 1901100046). The briefing “cannot wait” until the end of the partial government shutdown (see 1901100020), which has put most FCC activities on hiatus, because it's “in the interest of public safety and national security,” Pallone said. The agency “once again appears to have dragged its feet in protecting consumers,” he said. “While some carriers have now recommitted to stopping such unauthorized disclosure, the public can no longer rely on their voluntary promises to protect this extremely sensitive information.” The FCC “must take immediate action to ensure no wireless carrier is allowing the rampant disclosure of real-time location data and take enforcement action against carriers that violated the Commission’s rules and the trust of their customers,” Pallone said. Verizon is joining AT&T in ending location aggregation agreements, a practice criticized over claims carriers sold customers' real-time location that bounty hunters accessed, a spokesperson said Friday. Verizon noted it wasn’t among companies -- AT&T, Sprint and T-Mobile -- included in the Motherboard report. Verizon and the other three major carriers agreed to end such arrangements in the summer in response to a report on data brokers enabling misuse of customer data. “We have followed through on our commitment to terminate aggregation arrangements and provide location information only with the express consent of our customers,” Verizon said. The company ended deals with data broker Zumigo and by March will end agreements with roadside assistance companies, Verizon said. T-Mobile and Sprint didn't comment.

A federal appeals court denied local governments a stay of the FCC’s September wireless infrastructure order that takes effect Monday (see 1901090033). In a possible setback for the FCC, the 10th U.S. Circuit Court separately in No. 18-9568 agreed with cities it's effectively part two of the agency’s August pole attachments order and should be transferred to the 9th Circuit, which is weighing a Portland, Oregon, lawsuit against the August order. Cities “failed to meet their burden of showing irreparable harm if a stay is not granted,” the 10th Circuit ruled (in Pacer) Thursday. Granting transfer (in Pacer), the Denver court concluded “the FCC’s August Order and its September Order are the ‘same order’ for purposes of § 2112(a).” The 10th Circuit was chosen by court lottery, but cities argued Portland technically was first to challenge if that order was considered part one (see 1811300034). Selection of the 10th Circuit was considered good news for the FCC because the court is split evenly between Democratic and Republican judges and considered more middle of the road, whereas the San Francisco-based 9th is considered the most liberal and activist (see 1811060046). Commissioner Brendan Carr tweeted that the order taking effect “will help every community enjoy the economic opportunity that 5G will enable.” The transfer is good news for local governments because historically the 9th Circuit “has taken a more narrow view of what qualifies as an effective prohibition on broadband deployment,” blogged locality consultant Tellus Venture President Steve Blum. The FCC and an attorney for San Jose and the other cities declined comment. Seeing the transfer order, the D.C. Circuit on Friday dismissed (in Pacer) as moot an FCC motion to transfer a similar case (AT&T v. FCC, No. 18-1294) from that venue to the 10th Circuit. The Washington court asked parties to show cause why it shouldn’t move petitions to the 9th Circuit. In a separate infrastructure case, the National Resources Defense Council urged the D.C. Circuit to reject the FCC’s March wireless order in United Keetoowah Band v. FCC, No. 18-1129 (see 1812050010). The commission “overlooks the additional responsibilities that the National Environmental Policy Act ... imposes on it independent from the Commission’s obligations under the Communications Act” and “the continuing federal role it plays in overseeing the conduct of those it licenses to provide wireless service,” the council replied (in Pacer) Friday.

Negotiations between President Donald Trump's administration and Capitol Hill to end the partial government shutdown appeared to be at a standstill Thursday, the shuttering's 20th day, over the continued disagreement over funding for a wall on the U.S.-Mexico border. Midnight Friday would make it a record-length shuttering. Trump told reporters he will “almost definitely” declare a national emergency to siphon off Defense Department funds for the border wall if negotiations with the Hill don't progress. Vice President Mike Pence opposed a bid by Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., and other Republicans to seek a deal with Democrats that would fund the wall in exchange for temporary protections for immigrants. “I have never been more depressed about moving forward than I am right now,” Graham told reporters. “I just don’t see a pathway forward."

Broadband drives cable stock valuations, and new household formation is critical to growth in an increasingly saturated market, MoffettNathanson analyst Craig Moffett told investors Thursday. "As goes broadband, so goes the cable industry," he said. "There’s probably no more than 5 or 6 percent of the equity value -- or, in fact, the enterprise value -- of the cable stocks that we cover accounted for by their video businesses." The rest "is their broadband businesses, writ large," he added. Since 2008, Moffett said, cable has relentlessly taken wireline broadband market share, and despite telco network upgrades, "there’s still about 70 percent of the country where cable has an emphatically better technology than what it competes against.” He said it's "striking how little efficacy" telco price discounts had in spurring broadband gains. With "wired plus satellite" broadband reaching 80 percent penetration of occupied households, the industry growth rate slowed "because there just aren’t as many homes left to penetrate," and the remaining ones "are harder to penetrate," because they have mostly elderly and low-income residents. But “the growth rate of broadband has meaningfully accelerated in the last three quarters," he said. "All of that is attributable to an acceleration in new household formation."