A federal appeals court ordered the FCC and Dept. of Justice to respond to a rehearing petition filed in the CALEA case by a group including the Center for Democracy & Technology (CDT), American Library Assn., American Civil Liberties Union and others. Voting 2-1, the U.S. Appeals Court, D.C., ruled June 12 that an FCC order applying CALEA to VoIP and broadband access providers was legal (CD June 12 p1). The petitioning group, representing most of the entities that brought the case, asked the court July 28 for an en banc hearing. The court Aug. 2 signaled interest in the petition by asking the U.S. to answer it in 15 days. The court turns down at least 75% of such petitions, so that request is worth noting, Media Access Project (MAP) Pres. Andrew Schwartzman, representing CDT in the case, said: “It’s indicative that the court is treating this petition as nonfrivolous,” Schwartzman said. The American Council on Education and Educause, lead challengers of the FCC order, didn’t join in the rehearing petition. “The education entities were comfortable that the FCC brief and the court opinion together clarified the private network exemption” from CALEA application, said the education groups’ attorney, Matthew Brill. The petition said CALEA excludes information services such as the Internet. “In 1994, Congress flatly exempted Internet access and software applications from the reach” of CALEA, the petition said. “By extending CALEA to reach both Internet access and software applications like [VoIP], the FCC -- and a 2-1 panel majority -- overrode the clear statutory language of CALEA.”

A federal appeals court ordered the FCC and Dept. of Justice to respond to a rehearing petition filed in the CALEA case by a group including the Center for Democracy & Technology (CDT), American Library Assn., ACLU and others. Voting 2-1, the U.S. Appeals Court, D.C., ruled June 12 that an FCC order applying CALEA to VoIP and broadband access providers was legal (WID June 12 p3). The petitioning group, representing most of the entities that brought the case, asked the court July 28 for an en banc hearing. The court Aug. 2 signaled interest in the petition by asking the U.S. to answer it in 15 days. The court turns down at least 75% of such petitions, so that request is worth noting, Media Access Project (MAP) Pres. Andrew Schwartzman, representing CDT in the case, said: “It’s indicative that the court is treating this petition as nonfrivolous.” The American Council on Education and Educause, lead challengers of the FCC order, didn’t join in the rehearing petition. “The education entities were comfortable that the FCC brief and the court opinion together clarified the private network exemption” from CALEA application, said the education groups’ attorney, Matthew Brill. The petition said CALEA excludes information services such as the Internet. “In 1994, Congress flatly exempted Internet access and software applications from the reach” of CALEA, the petition said. “By extending CALEA to reach both Internet access and software applications like [VoIP], the FCC -- and a 2-1 panel majority -- overrode the clear statutory language of CALEA.”

An amateur radio operator convicted of child molestation was ordered to appear before an FCC administrative law judge to show why his license shouldn’t be revoked. Robert Landis, operator of N6FRV, is living in a Cal. mental hospital, said an order to show cause from Enforcement Bureau Chief Kris Monteith. His license expires Nov. 1. FCC “broadcast character” policy lets the agency weigh the personal background of license holders, Media Access Project Pres. Andrew Schwartzman said. He wants the Commission to be more proactive in revoking licenses when owners are indicted. “The Commission blinds itself to indictments and other indicia of questionable character and waits to be notified of convictions until after licenses are granted,” he told us: “They have to do a difficult and onerous revocation proceeding.”

The FCC approved the $17 billion Adelphia deal in a rare split vote under Chmn. Martin. The order avoided net neutrality rules while agreeing to a leased access rulemaking backed by Comr. Adelstein. Adelstein issued a partial dissent to the order approving the deal. He raised concern that it lacked a net neutrality condition, on which sources had expected the FCC to punt (CD June 28 p2). Comr. Copps voted against approval. The Commission set broad mandates on sports programming arbitration in cases involving networks owned by buyers Comcast and Time Warner and channels seeking carriage on their systems.

The FCC is teeing up a notice of apparent liability (NAL) against a data broker for violating customer proprietary network information (CPNI) rules. It’s to be voted on at the FCC’s July 13 agenda meeting. The data broker item is expected to be the highlight of the meeting, which also will include a notice of proposed rulemaking on telecom relay services (TRS) and an order and NPRM addressing rules for wireless medical devices, sources said Fri.

Broadcasters and activists, poised to battle on ownership rules, agree it will take a year and possibly 2 for anticipated FCC changes in media caps to take effect. Last week’s Commission vote to open a long-awaited rulemaking on cross ownership, TV and radio station limits and duopoly restrictions (CD June 22 p11) will take at least a year to complete, said 5 broadcast executives, lawyers and activists we surveyed. Ownership tweaks will likely be delayed another 6-12 months by court appeals that they said are all but certain.

The FCC shouldn’t transfer 6 radio licenses to Armada Media because a shareholder was charged with fraud, said Media Access Project Pres. Andrew Schwartzman. The Commission should “defer action on the applications” until 7 felony counts against Nicholas Hurtgen are resolved, Schwartzman wrote Media Bureau Chief Donna Gregg: “The mere possibility that an applicant not presently licensed by the Commission… will be convicted of multiple felonies surely raises substantial and material questions.” Aberdeen Radio agreed to sell Aberdeen, S.D., stations including KSDN(FM), KGIM(FM) to Armada.

FCC Chmn. Martin won approval for a media ownership cap review, but caught flak from FCC Democrats because the inquiry, while wide-ranging, insufficiently addresses local broadcast obligations. In a concession to Comrs. Adelstein and Copps (CD June 21 p2), the ownership docket will include a summary of filings from a 2003 localism notice of inquiry. Even so, the 2 partially dissented.

FCC Chmn. Martin’s quest for a multicast must-carry order drew a death blow Sun. when new FCC Comr. McDowell balked at imposing the rules due to constitutional and other concerns, said sources. With no chance in 2006 for Hill action to make cable operators carry all broadcast digital channels, industry executives termed the issue dead for the foreseeable future. McDowell and his aides didn’t comment.

The FCC should seek public comment before acting on a media ownership rulemaking set for a Wed. vote (CD June 8 p13), said the American Federation of TV & Radio Artists (AFTRA). AFTRA said members, who include actors, disc jockeys and broadcast reporters, are “contacting the FCC to let them know that the public needs to be heard before any new ownership rules are enacted.” Media activists want the Commission to seek comment on individual rules, instead of only soliciting input on a broad slate of mandates remanded to the FCC by U.S. Appeals Court, Philadelphia, as Chmn. Martin has proposed. “If the Commission does not put specific proposals out for comment, it runs the risk of alienating the Court of Appeals, which roundly criticized the Powell FCC for such a failure,” said Media Access Project Pres. Andrew Schwartzman: “We'd like to be able to comment on specific proposals.” Benton Foundation Pres. Gloria Tristani agreed: “We certainly hope that the notice has provisions that provide for sufficient time for the public and interested parties to comment.” - JM