The Supreme Court didn't announce Monday whether it will review, let stand or vacate a ruling by the U.S. Court of Appeals for D.C. Circuit that affirmed the prior FCC's 2015 net neutrality order. A decision on Daniel Berninger v. FCC, No. 17-498, wasn't on the court's order list after the case was distributed for justices' Friday conference. It was again distributed for potential consideration at this coming Friday's conference, said a notice in the docket. Berninger wants the court to grant cert and review the case on the merits, but net neutrality advocates urge cert denial. Given the current commission's order undoing Communications Act Title II net neutrality regulation, the government and ISP groups want the court to grant cert but vacate the D.C. Circuit judgment and remand the 2015 order litigation with directions to declare related legal challenges moot, or to the consider the effect of the 2018 order.

The Office of Engineering and Technology Monday released the first phase of testing results on sharing in the 5.9 GHz band between Wi-Fi and dedicated short-range communications systems, as promised last week by FCC Chairman Ajit Pai (see 1810230038). “We found the prototype devices reliably detected DSRC signals,” OET said. “The prototype U-NII-4 devices were able to detect a co-channel DSRC signal and implement post detection steps as claimed by the submitters. This Phase I test report was peer reviewed and the information is included in the record.” The report was coordinated with the NTIA and the Department of Transportation, OET said. OET is next seeking comment by Nov. 28, replies Dec. 13, in docket 13-49. Commissioner Mike O’Rielly said the results weren’t “all that surprising given the simple questions posed." The "entire debate has gravitated away from the type of sharing regime envisioned in the testing,” he said. “Instead, the Commission should move past this and initiate a rulemaking to reallocate at least 45 megahertz of the band, which is completely unused today for automobile safety.”

Pew Center analysis of 2015 U.S. Census Bureau data found 15 percent of U.S. households with school-age children don’t have a high-speed internet connection at home. The center also found some teens “are more likely to face digital hurdles when trying to complete their homework.” About a third of households with children ages 6-17 and annual income below $30,000 don’t have a connection at home, compared with 6 percent of such households earning $75,000 or more, Pew said Friday. The disparities “are particularly pronounced for black and Hispanic households with school-age children -- especially those with low household incomes,” Pew said. The numbers “should be a wake-up call,” said FCC Commissioner Jessica Rosenworcel. “Nearly one-in-five teens cannot complete their homework because of the Homework Gap, and impoverished and minority students are hit especially hard.”

Mark McDiarmid is a T-Mobile executive (see 1810250022).

The FCC Wireline Bureau granted waiver of the agency’s E-rate program invoicing rules to assist schools and libraries affected by Hurricane Michael. The Florida Department of Management Services sought a waiver, arguing that entities in storm-affected counties in Florida may be unable to meet Monday's invoice deadline for recurring services provided in funding year 2017, the bureau said in docket 02-6 Friday. “Such waiver relief would also be appropriate for entities located in counties in Georgia that were similarly impacted by Hurricane Michael,” the bureau said. Schools and libraries in affected areas now have until Feb. 26 to file the required invoices. The Hurricane Michael disaster information reporting system was deactivated, the Public Safety Bureau said in a public notice also Friday. It said the FCC will still monitor the status of communications services as restoration work continues. DIRS was deactivated for Alabama and Georgia earlier this month but remained active for Florida (see 1810190058). According to the agency (see here), two Florida counties as of Friday had between 10 and 15 percent of cellsites out of service; one TV station, seven FM radio stations and two AM radio stations were reported being out of service.

The FCC Wireline Bureau sought comment Friday on the implications of a provision in the FY 2019 National Defense Authorization Act that would bar use of money in any USF program to buy equipment or services from companies that “pose a national security threat” to U.S. communications networks or the communications supply chain. The FCC had been expected to deepen its inquiry in light of the NDAA (see 1810190025). The bureau asks specifically about Section 889(b)(1), which bars federal agencies from using “loan or grant funds to procure or obtain, extend or renew a contract to procure or obtain, or enter into a contract (or extend or renew a contract) to procure or obtain equipment, services, or systems” with Huawei, ZTE and other Chinese companies. “Does the prohibition in section 889(b)(1) apply to support provided by the … USF?” the bureau asks. “To the extent the provision is intended to apply to USF, what obligation might it impose upon the Commission? Would the Commission’s proposed rule in the Protecting Against National Security Threats to the Communications Supply Chain NPRM satisfy the intent of section 889(b)(1)?” Comments are due Nov. 16 in docket 18-89, replies Dec. 7.

San Jose and Seattle led lawsuits against a September FCC wireless infrastructure order aimed at speeding 5G buildout by targeting state and local hurdles to small-cell deployment. It "exceeds the FCC’s statutory authority" and "is otherwise contrary to law, including the Constitution of the United States,” said San Jose, Las Vegas, Los Angeles, Portland and other western localities in one petition (in Pacer) filed Tuesday at the 9th U.S. Circuit Court of Appeals (case 18-72883). Seattle with Arizona, Oregon and California municipal leagues sued at the same court. “The Commission’s rules are an unlawful pre-emption of local and state government authority promulgated without response to the arguments advanced by Petitioners,” said the petition (in Pacer) in case 18-72886. The FCC’s response is due Feb. 11 for both cases, court dockets said. “The smart infrastructure policies the FCC put in place will help ensure that every community in the country benefits from the economic opportunity 5G can enable," said Commissioner Brendan Carr's spokesperson. "The FCC struck the right balance. The commonsense ideas we put in place respond to several dozen mayors and local officials that called on the FCC to act. Our decision tracks the road map already laid out by the appellate courts, and we look forward to the court ruling on our decision." U.S. Conference of Mayors CEO Tom Cochran applauded the suits. “Instead of working with local governments to win the global race to 5G, the FCC is forcing cities to race to the courthouse to defend the most basic of local government rights -- the authority to manage and seek fair compensation from private users that seek to employ public assets, owned and paid for by local taxpayers, for their personal profit without any obligation to serve all of the community,” he said. NATOA, "along with every major municipal organization and dozens of individual municipalities, opposed the FCC’s decision to adopt this Order," emailed General Counsel Nancy Werner. "We will continue to join local governments in challenging this extraordinary federal agency overreach." CTIA and the Wireless Infrastructure Association didn't comment. Seattle earlier threatened suit (see 1810020041). San Jose officials reported early success speeding up permitting process for small cells after signing agreements with carriers (see 1810220030).

We misspelled the name of ICANN Expedited Policy Development Process Chair Kurt Pritz (see 1810220002). ... Final briefs by DOJ and AT&T with the U.S. Court of Appeals for the D.C. Circuit are the same as previously filed, adding only page numbers (see 1810190006).

The FCC said it received all approvals needed to launch its Office of Economics and Analytics (OEA). Giulia McHenry, who recently joined the Office of Strategic Planning and Policy Analysis from NTIA where she was chief economist, will be acting chief, the FCC said Thursday. OEA is to open by year's end, the agency said. The FCC approved the office in January over dissents by Commissioner Jessica Rosenworcel and then-Commissioner Mignon Clyburn (see 1801300026). The agency then filed its plans with the Office of Management and Budget and with the employee union. “We are in the final stages,” Chairman Ajit Pai said Thursday. Under the agreement with the union, “we are committed to helping all FCC employees involved make a smooth transition to the new office.” About 100 employees from bureaus and offices across the agency will staff the OEA, the commission said. Rosenworcel said Thursday the OEA's work must include peer review. “It is unacceptable that so much of the recent economic work of this agency was not subject to any standard of peer review,” she said: “Rigorous peer review of scientific and economic work has been encouraged and even required” since President George W. Bush's administration. Rosenworcel said transparency is critical. “The FCC needs to be honest about how much of the economic data presented to it is advocacy,” she said. "We must avoid the risk of relying on numbers masquerading as fact when they simply add up to an effort to champion a desired outcome.” Having "worked hard” on OEA, Commissioner Mike O’Rielly said he will be “particularly focused on ensuring that the Office ramps up the FCC’s cost-benefit analysis and provides sufficient input prior to items’ consideration.” He looks forward to a proceeding on criteria for such analyses.

The FCC scheduled a conference call Nov. 1 at 2 p.m. EDT with tribal governments on the agency's notice of inquiry to consider creating a $100 million telehealth pilot program, said a public notice Wednesday of the Office of Native Affairs and Policy and the Wireline Bureau Telecom Access Policy Division. The FCC plans a workshop for tribal authorities and members Nov. 14-15 on the Nez Perce Reservation in Lewiston, Idaho, said another PN. It said the workshop will include a presentation on the recent Connect America Fund Phase II auction and the upcoming Mobility Fund Phase II auction, both designed to support rural broadband deployment, including on tribal lands.