Federal Communications Commission (FCC)

The FCC’s handling of the recent UNE decision may require Congress to step in and force the agency to follow more standardized operational procedures, Rep. Bachus (R- Ala.) said in a floor statement. The Commission causes “needless regulatory uncertainty” by issuing orders that go back and forth to the courts, he said. The agency was close to meeting the U.S. Appeals Court’s remand on UNEs when 3 commissioners “at the last minute decided to break away,” adding to that problem, Bachus said. Saying that the new plan would spread decisionmaking to regulators in every state, Bachus said “the only winners of this particular approach are likely to be the members of the Federal Communications Bar Assn.” He suggested that Congress might have to address this problem “in connection with proposals to reform the overall FCC process and to require the agency to follow standard quasi-judicial rules and procedures -- not individual Commissioners’ latest whimsy or caprice.”

The FCC plans to begin “systematically” evaluating scientific findings on the impact of communications towers on migratory birds, but that doesn’t necessarily mean rule changes are on the way, said Bryan Tramont, senior legal adviser to FCC Chmn. Powell. Speaking at a Wed. PCIA seminar, he said the Commission “in the near future” would seek input on scientific evidence, but: “We believe it would be premature to jump into something at the moment that would drastically change the regime because we just don’t think there’s enough information out there.” In related areas, Tramont said the FCC was nearing release for public comment of a nationwide agreement on streamlining tower siting decisions, and might hire a staff biologist to examine communications issues.

State legislatures this year have taken up many bills that will affect state commission operations, administration and jurisdiction, ranging from agency restructuring and public campaign financing to universal service and consumer advocacy, including proposals to turn the Cal. PUC and Utah PSC from appointed to elected bodies, restructure the Ark. PSC and reform the commissioner selection process in S.C.

Many state public utility commissions (PUCs) have been reluctant to support the United Church of Christ (UCC) in its effort “to ensure corporate character among telecom companies who have licenses to operate on behalf of the public interest,” Rev. Robert Chase, dir. of the UCC Office of Communication, said in an interview: “We have one legislator so far who has written a letter in support of this effort -- Congressman [Richard] Burr (Rep.-N.C.),” who also is a vice chmn. of the House Commerce Committee. “We are looking for Sen. [Joseph] Lieberman [D-Conn.] and Congressman Dennis Kucinich [D-Ohio] to do likewise,” Chase said. He visited Washington Tues. and Wed. to meet with lawmakers and others to encourage them to join the UCC and pressure the FCC to conduct an industrywide investigation and, based on its results, open a rulemaking to prevent financial fraud. Chase expressed concerns about “egregious” behavior by WorldCom and others in the telecom industry: “Our effort is to get the FCC to take action on behalf of the public, which is now being faced with $11 billion in fraudulent misstatements. How many more billions do we need to go before the regulatory bodies are going to step up and say ‘enough'? It’s time that we put policies in place to ensure that it doesn’t happen again.” He said groups such as Urban Link, Rainbow Push, the National Council of Churches, the Communications Workers of America and others had filed letters with the FCC supporting the effort: “We are looking to extend that group of supporters.” Chase said the UCC was planning to act on both the federal and the state level (CD March 13 p10). He said he had received responses from a dozen state PUCs, including Fla., N.J., Pa. and S.C. “In many cases their initial response is to say that this lies outside our purview,” he said. However, he said D.C. PUC Comr. Anthony Rachal was “more than supportive to the point that he initiated our meeting.”

Expressing frustration at the FCC’s pace of developing solutions to problems facing the universal service program, Senate Commerce Communications Subcommittee Chmn. Burns (R- Mont.) said he would like to see a summit involving members of Congress, the FCC and the Federal-State Board on Universal Service. “This horse [the FCC] isn’t going to run any faster unless we put the spurs on,” Burns told reporters after a hearing Wed. on universal service. He said such a summit would help members determine whether legislation was needed in any areas and, if so, whether Congress could begin work on a bill this year.

FCC legal advisers said Wed. they were aware of concerns by rural ILECs that universal service money was shrinking while requests for it were growing with the arrival of competitive carriers in rural areas. But they also told members of the National Telecom Co-op Assn. (NTCA) that those were very difficult problems to solve because the Telecom Act encouraged competition as well as universal service. The advisers told NTCA that numerous universal service issues were teed up at the Commission, including what services should be funded and how the support money should be raised, and they wouldn’t be easy to solve. NTCA members were in town for their annual Legislative & Policy Conference.

The FCC is set to open a broad inquiry at today’s (Thurs.’s) agenda meeting on receiver performance requirements, ranging from TV receivers to more traditional wireless handsets. Among the key questions expected is the Commission’s statutory authority in that area and incentive- based ways to make such specifications work, a source said. The agency’s Spectrum Policy Task Force included in its wide range of policy recommendations last fall minimum receiver performance requirements. Today’s agenda item has drawn particular attention because it specifically cites DTV receivers as part of a broader inquiry.

The appropriateness of public TV (PTV) stations’ using federal, state and local govt. allocations to fund their proposed ad-supported ancillary and supplementary services was raised by judges of a U.S. Appeals Court, D.C., panel hearing a challenge to the FCC order that permitted PTV stations to solicit ads on their excess nonbroadcast digital capacity. While the arguments of petitioners the United Church of Christ and Media Access Project (MAP) and the FCC focused on whether the statutory prohibition on carrying ads covered PTV’s subscription services and the definition of broadcasting, Judges Raymond Randolph and Judith Rogers showed more interest in issues such as tax dollars’ being used for such services and the tax status of PTV. Randolph asked Kevin Newsom, counsel for the Assn. of Public TV Stations (APTS), the intervenor, whether: (1) There was no prohibition on the use of federal, state and local funds for funding subscription services. (2) PTV stations proposed to use taxpayer dollars for these services to turn a profit. PTV stations weren’t planning on turning a profit from those services, Newsom said, but would plough all revenue generated from them back into the system to broaden their noncommercial educational service offerings. Rogers asked what problems would be created under tax laws if public broadcasters put their spectrum to commercial use and why it would be a good thing for them to do so. Newsom clarified that ad-supported revenue wouldn’t supplant govt. and membership funding. In fact, he said, Sec. 399(B) of the Communications Act, gives broad authority to public broadcasters to use their facilities for remunerative purposes, he said. Referring to FCC counsel Daniel Armstrong’s statement that PTV stations would use excess digital capacity to provide Internet service to rural areas, stock quotes and information on homeland security, Randolph wondered whether the stock quote service by PTV stations would be in competition with cable and other offerings. “You are subsidized and they are not,” he said. Newsom said the Commission had made it clear in its order that it would address such issues. Harold Feld, counsel for petitioners, said it was clear that Congress intended the meaning of “broadcasting” to include subscription services and Congress had no reason to think it had to explicitly prohibit ads on subscription services. Even if the meaning of broadcasting were ambiguous in the statute, the FCC’s order was “arbitrary and capricious” and contrary to past precedent, he said. The Commission in 1951 had rejected the public broadcasters’ plea for limited commercial operations, Feld said, saying it was imperative to insulate noncommercial educational stations (NCEs) from commercial pressures. Armstrong sought to assure the court that the Commission’s order would ensure that the ad-free nature of PTV’s over-the- air broadcasts would continue. The FCC’s order allows ad- support only on PTV’s ancillary and supplementary services, while stipulating that public broadcasters should use a substantial majority of their digital capacity for noncommercial educational services. The same court 15 years ago in National Assn. for Better Broadcasting v. FCC had upheld the Commission’s authority to interpret the term “broadcasting” to not include subscription services. Referring to tax breaks enjoyed by NCEs, Randolph asked whether if there were anything to prevent them from putting all kinds of editorials on their subscription services. Armstrong said that as long as public broadcasters’ tax- exempt status was in jeopardy, there were limitations on their ability to do that.

Senate Commerce Technology Subcommittee Chmn. Brownback (R-Kan.) said Wed. he wanted FCC reform to be a priority for the Commerce Committee this session. In a statement to accompany a Communications Subcommittee hearing on E911, Brownback said he would meet with Committee Chmn. McCain (R- Ariz.) to discuss the committee’s agenda, particularly FCC reform. “How can the Commission be expected to help make E911 a success if the Commission is broken?” Brownback asked, again criticizing the agency for its Triennial Review ruling. “Today we are faced with unprecedented uncertainty in the telecom sector created by fly-by-night rulemaking, public admissions by a Commissioner suggesting he didn’t know what he was voting on and a final product consisting of what appears to be conflicting federal-state jurisdictional standards supposedly derived from one federal standard in the [Telecom] Act.” He said he voted for the Telecom Act, but didn’t recall voting in favor of “regulation by multiple choice.” Brownback also said the process leading to the order “leaves much to be desired.” A spokeswoman for McCain said FCC reauthorization was included in the committee agenda McCain released in Nov.

OPASTCO said Tues. it was upset with way many state PUCs were allowing competitive carriers to receive Universal Service Fund (USF). Group said it would start pushing message to Congress that states were straying from congressional intent of Telecom Act of 1996 and that FCC needed more oversight of PUCs. With OPASTCO members in Washington for annual legislative and regulatory conference, many were planning to meet with members of Congress this week in attempt to put more focus on USF issues, particularly designations of eligible telecom carrier (ETC) by state PUCs.