Florida's Bay, Gulf and Washington counties remain particularly hard hit by Hurricane Michael damage, with 40.9 percent of Bay wireless sites, 30.4 of Gulf sites and 17.9 percent of Washington sites out of service, the FCC said Friday. It said one TV station, seven FMs and two AMs reported being off-air. Cable and wireline customers without service were 63,856, down from 103,811 the previous day. The agency deactivated the disaster information reporting system for Alabama and Georgia, but it remained activated in 21 Florida counties.

Net neutrality litigation is about whether the FCC may ensure "light touch" regulation of broadband, not about internet openness, said USTelecom, CTIA, NCTA, the American Cable Association and Wireless ISP Association in a supporting intervenor brief Thursday citing their commitment to an open internet. The Supreme Court's 2005 "Brand X makes clear that the Commission may do so, and the ["internet freedom"] Order demonstrates that the Commission’s decision to follow that path was reasonable," the ISP groups argued to the U.S. Court of Appeals for the D.C. Circuit in Mozilla v. FCC, No. 18-1051: The FCC "amply" justified returning to a "flexible" Communications Act Title I regime (see 1810120022). "Petitioners establish no distinction between the Order’s classification of broadband as an information service and the 2002 Commission decision reaching the same conclusion, which Brand X upheld," said the ISPs. "The Commission lawfully preempted state and local regulation of broadband, which is a jurisdictionally interstate service." The order rightly repealed the "unconstitutional" 2015 Title II net neutrality order that "violated" individuals' speech rights, argued intervenor Leonid Goldstein, of Austin. "So long as an agency acts within its realm of authority, its decision to alter a pol-icy decision -- or even reverse course -- is not subject to a special, enhanced standard of review," argued amici Texas, Arkansas and Nebraska. The Title I order "is eminently justified given the highly competitive nature of the broadband market and the importance of removing unnecessary barriers," argued the National Association of Manufacturers, U.S. Chamber of Commerce, Business Roundtable and Telecommunications Industry Association. Petitioner network arguments that broadband internet access "can only be rationally classified" as a Title II service are wrong, argued network architect Richard Bennett and others. The court should resolve the legal questions "definitively to put an end to the regulatory 'ping pong,'" argued TechFreedom. Countries "with hard bright line rules do not exhibit increased innovation at the edge," argued scholar Roslyn Layton: "Increased edge innovation is seen in countries with soft net neutrality rules (e.g., Sweden, Norway, Denmark, South Korea)" or "no rules at all." Other amicus filers were: Technology Policy Institute, Tech Knowledge, Georgetown Center for Business and Public Policy, Multicultural Media, Telecom and Internet Council, International Center for Law and Economics, Phoenix Center, Information Technology and Innovation Foundation, Washington Legal Foundation and Southeastern Legal Foundation and Christopher Yoo.

Chairman Joe Simons defended FTC Privacy Shield enforcement efforts, as officials from the U.S. and the EU discuss extending PS. The FTC is committed to maintaining “a robust mechanism for protecting privacy and enabling transatlantic data flows,” he said in Brussels Thursday. Since 2017, the FTC brought eight PS enforcement actions. He cited 39 actions under the U.S.-EU safe harbor, which predated the Privacy Shield, and four actions linked to the Asia-Pacific Economic Cooperative’s Cross-Border Privacy Rules system. The Privacy Shield actions concerned entities falsely claiming program verification, failure to complete the verification process and failure to uphold program standards after leaving. The chairman cited the steady stream of press reports about privacy and data breaches, saying the agency is investigating Facebook and Equifax.

We incorrectly reported these people's names: Center for Democracy & Technology CEO Nuala O’Connor (see 1810090056); Facebook Vice President-Product Management Guy Rosen (see 1810030034); and National Tribal Telecommunications Association President Godfrey Enjady (see 1810040055).

Cable and telecom industry groups sued Vermont over its net neutrality law and executive order that restricted government contracts to companies that follow open-internet principles. Gov. Phil Scott (R) has vowed to fight the suit. It was the third state to enact a net neutrality law when in May the state put into statute Scott’s February executive order (see 1805240043). USTelecom, CTIA, NCTA, the American Cable Association and New England Cable and Telecommunications Association complained Thursday in the U.S. District Court in Burlington. Restricting state contracts are pre-empted under the U.S. Constitution’s Supremacy Clause by the FCC December order and the Communications Act’s ban on imposing common carrier obligations on mobile and information-service providers, the groups said. The Vermont actions "regulate outside the borders of the State of Vermont and burden interstate commerce in violation of the" Constitution's dormant Commerce Clause, they said. “Internet traffic flows freely between states, making it difficult or impossible for a provider to distinguish traffic moving within Vermont from traffic that crosses state borders.” States can’t “use their spending and procurement authority to bypass federal laws they do not like," but Congress should pass a national law, said a statement by the national associations. NECTA supports "federal legislation that would enshrine these principles permanently across the entire U.S.," said CEO Paul Cianelli. While Scott understands "consistent regulation is important to ensuring a vibrant and thriving telecom and cable sector, our obligation as a state government is to our citizens, who I strongly believe have a right to free and open access to information on the internet,” the governor said. “In the absence of a national standard to protect that right, states must act.” The national groups earlier sued California for a comprehensive net neutrality bill (see 1810030036). Other states with net neutrality laws (Oregon, Washington state) or executive orders (Montana, New York, New Jersey, Hawaii and Rhode Island) have yet to be sued. Washington has comprehensive rules, while the others restricted procurement.

Oral argument on DOJ's appeal of the U.S. District Court approval of AT&T buying Time Warner is Dec. 6 before the U.S. Court of Appeals for the D.C. Circuit, said a clerk's order Wednesday (in Pacer, docket 18-5214).

Big-tech acquisitions of startup competitors are harmful because startups usually deliver the “paradigm shifting innovations,” FTC staffer Lina Khan said at Wednesday’s competition policy hearing (see 1810160062). Antitrust enforcers should be wary of seemingly harmless acquisitions like Facebook’s 2013 buy of VPN provider Onavo, argued Khan, a staffer for Commissioner Rohit Chopra and fellow at Columbia University Law School. Onavo grants users heightened security, but it allows the social network to track in “extremely close detail” which rival apps are diverting attention from Facebook, she said. This allows the platform to detect which startups are the biggest competitive threat, shaping acquisition strategy and leading to purchases of apps like tbh and Moves, Khan said. These types of acquisition might not directly affect competition in the digital market, but they improve Facebook’s position and strengthen its leverage as incumbent, she said. It’s unclear how much competition is the right amount to produce a healthy amount of innovation, argued University of California-Berkeley economist Steven Tadelis. Companies need market power to reap the benefits of innovation, he said. Tadelis is convinced current antitrust tools guided by solid economic thinking are adequate, and each case should be evaluated on its own merits. Former FTC General Counsel Willard Tom, now at Morgan Lewis, agreed existing antitrust tools are adequate. Early stage entry is now extremely cheap and easy, given cost reductions with cloud computing, Tadelis said.

The FCC International Bureau is extending to Oct. 31 registration of 3.7-4.2 GHz earth stations, said a public notice Wednesday. It said "intermittent difficulties" with the International Bureau filing system because of a wave of applications coming in close to Wednesday's deadline prevented some applicants from filing. April 1-Wednesday, 13,445 registrations were filed, according to IBFS.

Treatment of VoIP and the transition from incumbent telcos are among issues to be ironed out after the FCC Connect America Fund Phase II subsidy auction, a National Regulatory Research Institute webinar heard Wednesday. Winning CAF II bidders are to receive $1.49 billion cumulatively over 10 years to provide broadband and voice service in areas traditionally served by price-cap telcos (see 1808280035). "You have a whole new cast of characters," said consultant Carol Mattey, citing fixed-wireless, electric utilities and ViaSat. The $23 million OzarksGo will receive is a "drop in the bucket" of a $180 million fiber project offering gigabit speed, said General Manager Randy Klindt, whose company will lease capacity from parent Ozarks Electric Cooperative. To become a CAF eligible telecom carrier, winning bidders must provide a telecom service, said Mike Romano, NTCA senior vice president. He said ETC aspirants should familiarize themselves with common carrier requirements, given uncertainties. He noted an 8th U.S. Circuit Court of Appeals ruling that interconnected VoIP is an information service and FCC reluctance to decide the matter. Romano said rate-of-return rural telcos see the CAF II support as a way to "edge out" service areas. USTelecom Vice President Mike Saperstein cited a "halo effect" where ILEC winning bidders provide service above minimum speeds in areas adjacent to their territories. Romano said CAF II winners won't technically be carriers of last resort, but "practically speaking" will be, replacing price-cap telcos no longer being subsidized. He and Mattey said that raised questions about the transition as CAF II winners build out over six years. Mattey said the FCC will have to issue a new NPRM on Remote Areas Fund details, including any change to a 2011 plan for a $100 million annual budget. She thinks that amount would be enough if the FCC confined the RAF to CAF II areas that didn't receive winning bids, but not enough if it broadens coverage. She said ViaSat, a CAF II auction winner, and Hughes, a New York State broadband auction winner, essentially revealed what they need to provide satellite broadband in high-cost areas: "a very low number." Asked if the U.S. would ever get to 100 percent broadband coverage, Mattey quipped, "We're just going to move the goal posts." She expects the FCC to increase the 10/1 Mbps standard for new CAF phases within three years. Romano agreed, saying 25/3 Mbps is likely. USF contributions must become more sustainable, said speakers. Nobody was optimistic.

Filings that were due at the FCC Monday when it was closed because of water damage from fire sprinklers (see 1810150023) were instead due Tuesday, said a public notice. The new date applies to all paper and electronic filings “with the exception of (1) Network Outage Reporting System (NORS) notifications and reports and (2) filings that are subject to statutory deadlines,” the PN said.