MOUNTAIN VIEW, Calif. -- Prospects are bright for building under an Obama White House on successes by supporters of Carterfone, net neutrality rules and open spectrum for wireless broadband, leading activists said. Groundbreaking changes probably will come Nov. 4 with the arrival of a friendly national administration and FCC white- space rules, said President Andrew Schwartzman of the Media Access Project Tuesday at an open-wireless conference of Google and the New America Foundation. “Policy makers are ready to listen,” he said: “There’s likely to be a very receptive environment going forward.”

SANTA CLARA, Calif. -- Wireless Carterfone supporters tried to turn First Amendment arguments against carriers, as opponents attacked proposals to require opening cellphone networks to a wide range of devices. The comments came late Friday at a Santa Clara University conference on the 40th anniversary of the FCC Carterfone order breaking wireline companies’ control over attachments.

SANTA CLARA, Calif. -- Wireless Carterfone supporters tried to turn First Amendment arguments against carriers, as opponents attacked proposals to require opening cellphone networks to a wide range of devices. The comments came late Friday at a Santa Clara University conference commemorating the 40th anniversary of the FCC Carterfone order breaking the wireline phone system’s control over attachments. A long line of Supreme Court cases starting with Red Lion empowers the commission to protect a “robust marketplace of ideas” by promoting diversity that the FCC should extend to telecom from TV and radio through wireless Carterfone, said Media Access Project President Andrew Schwartzman. Carrier practices such as restricting file sizes and directing subscribers to partner search engines act as limits on expression, Schwartzman said. Verizon Wireless has raised the First Amendment on the other side of the question, contending that imposing rules would restrict the diversity that the market offers. Schwartzman raised “an important issue,” said Nicolas Johnson of the University of Iowa’s law school, who as an FCC commissioner wrote the majority opinion in Carterfone. Contending that competitiveness of the cellular market makes it completely inappropriate to extend Carterfone from its Bell monopoly context were George Ford, the Phoenix Center’s chief economist, and James Speta of Northwestern University’s law school. Carterfone doesn’t apply outside the world of monopoly, strong regulation and guaranteed returns from which it emerged, Speta said. Rules on devices are beside the point in a world where consumers have a wide choice of cellphones and operators have controlled Skype and P2P in their networks, not through leverage over hardware, Ford said. “It’s not just the equipment,” he said. “It’s the terms of the agreement we have to use it.” And it’s Apple that dictated to carriers what the iPhone 3G would be, Speta said.

The federal government wants more time to decide whether to challenge in the Supreme Court a lower court remand of an FCC indecency fine, said a participant in the case. The Solicitor General sought a month’s extension, to Nov. 18, of a deadline to file a cert petition with the high court, said Media Access Project President Andrew Schwartzman. He participated in CBS v. FCC, in which the 3rd U.S. Appeals Court in Philadelphia remanded a $550,000 fine against the broadcast network for airing Janet Jackson’s breast-bearing Super Bowl halftime show (CD July 22 p1). Such requests by the Solicitor General are “granted almost automatically,” Schwartzman said. “This lets them see how the oral argument goes in the Fox case, which is on Nov. 4” before the high court, he said.

The FCC’s October meeting has been changed for at least a third time as Chairman Kevin Martin failed to get any other commissioner to support a DTV-related notice that drew internal controversy (CD Oct 8 p6). No items will be voted on Wednesday, at what was to have been a regular monthly meeting in Nashville, agency officials said. Instead, four FCC members will gather at Vanderbilt University’s medical center Wednesday morning for an en banc hearing on obesity, while Commissioner Michael Copps will participate by phone, agency officials said.

The FCC’s October meeting has been changed for at least a third time as Chairman Kevin Martin failed to get any other commissioner to support a DTV-related notice that drew internal controversy (CED Oct 8 p3).

Schurz Communications shouldn’t be allowed to own three LPTV stations in South Bend, Ind., because it already owns four TV stations and two radio stations there, as well as the market’s only daily newspaper, according to a petition to deny filed by Free Press. “The fact that Schurz… may even claim it has a record of superior service” in the market “is irrelevant to whether it, or any applicant, should be afforded so much power in any community,” Free Press said. Representing Free Press, Andrew Schwartzman of the Media Access Project said LPTV rules normally might allow FCC staff to approve the deal without full commission input, had Free Press not filed a petition. The stations, WMYZ-LP, WCWW-LP and WBND-LP, would be owned by WSBT Inc., which Schurz owns.

The FCC should create a new full-power commercial TV license assigned to entities using commercial digital licensees’ facilities, a public-interest lawyer planned to tell a Tuesday commission hearing on minority ownership. (See separate report in this issue.) Class S licensees would pay conventional broadcasters to use transmitters and facilities, under a proposal by Media Access Project President Andrew Schwartzman. If the contracting station broadcasts in high definition, the Class S user would need to lease spectrum to do that. The arrangements would be voluntary, Schwartzman wrote. “Interested full-power licensees would assign a portion of their bitstream to a qualified applicant in an arm’s-length transaction” under procedures in section 309 of the Communications Act, he said. It would provide a “new revenue stream for incumbent broadcasters,” promote diversity and require no legislation, Schwartzman said.

A Tuesday FCC hearing in New York on hurdles to women and minorities getting financing to buy communications properties will serve as the July commission meeting, the agency said Friday. The hearing has been moved to the Schomburg Center for Research in Black Culture from its previous Barnard College site. Speakers on the first witness panel, about equity financing, are Spanish Broadcasting System CEO Raul Alarcon, Dempster Group Managing Partner Percy Berger, Delman Coates of Enough is Enough, Columbia Capital Partner James Fleming, ZGS Communications CEO Ronald Gordon, Opportunity Capital Partner Anita Stephens Graham, Quetzal/JP Morgan Partners Managing Partner Reginald Hollinger, Syncom Funds Managing General Partner Terry Jones, Catalyst Investors Managing Partner Brian Rich, Media Access Project President Andrew Schwartzman, ShootingStar President Diane Sutter and Tower of Babel Chairman Frank Washington. Witnesses on the second panel, about loans, are CIT Communications Managing Director Charles Dreifus, InterMedia Partners Managing Partner Leo Hindery, Media Ratings Council CEO George Ivie, Oppenheimer & Co. Managing Director William Lisecky, Access.1 Communications President Chesley Maddox- Dorsey, Arbitron CEO Steve Morris, Patrick Communications Co- owner Susan Patrick, Roberts Cos. Chairman Michael Roberts, LIATI Capital Managing Director John Stevens Robling, Azteca America Executive Vice President Mayela Rosales, Inner City Broadcasting President Charles Warfield and National Association of Black-Owned Broadcasters Executive Director James Winston.

A federal appeals court remanded to the FCC a $550,000 fine against CBS for airing a split-second live shot of Janet Jackson’s breast at halftime of the 2004 Super Bowl. Writing for himself and Judge Julio Fuentes, Chief Judge Anthony Scirica of the 3rd U.S. Appeals Court in Philadelphia said the fine over a fleetingly indecent image marked a policy change made by the FCC without adequate notice. Fuentes said Jackson and Justin Timberlake, who ripped off the singer’s bustier, were independent contractors, not CBS employees, as the agency found. Judge Marjorie Rendell agreed with her colleagues’ conclusion in CBS v. FCC, dissenting in part because she felt they should have vacated the case entirely and not remanded it. Monday’s decision was foreshadowed in questions by the jurists in oral arguments (CD Sept 12 p2).