The FCC likely can find an easy solution after a three-judge panel of the 8th U.S. Circuit Court of Appeals vacated one part (see 1808280020) of a decision easing regulation of the business data service rates of major incumbent telcos, experts said. The court denied CLEC and ILEC petitions in general but vacated the final rule on TDM transport services, remanding it to the regulator for further proceedings. The case is Citizens Telecommunications v. FCC, No. 17-2296. Oral argument was in May (see 1805150020).

Fight for the Future, Free Press, Public Knowledge and 21 other groups jointly urged senators Monday to vote down Supreme Court nominee Brett Kavanaugh because of his dissent in the D.C. Circuit's 2017 en banc affirmation of the FCC's 2015 net neutrality rules in USTelecom (see 1705010038). Kavanaugh, if confirmed, is considered likely to generally raise the high court’s bar for FCC regulations in part because of perceptions he will seek to rein in Chevron deference to agency expertise (see 1807100020). Kavanaugh’s opinion in USTelecom “makes clear that he views administrative law and appellate review of agency decisions not as a means to ensure that agencies engage in reasoned decision making, but as a tool to force deregulation and let judges strike down agency actions at will,” the groups said in a letter sent to all senators. Kavanaugh “would side with big telecommunication companies whenever a free and open internet for all is at stake” and “would strike yet another blow to the 21st century’s online mobilization and communication infrastructure, demonstrating support for big cable companies but ignoring the wishes of the American public.” Sens. Richard Blumenthal, D-Conn.; Ed Markey, D-Mass.; and Ron Wyden, D-Ore.; and Rep. Anna Eshoo, D-Calif.; plan to raise their concerns about Kavanaugh’s net neutrality views during a Tuesday conference call with reporters.

Major internet players asked the U.S. Court of Appeals for the D.C. Circuit to overturn last year’s order repealing 2015 net neutrality rules. The Internet Association filed a brief joined by the Entertainment Software Association, Computer & Communications Industry Association and Writers Guild of America West. The IA-led filing said the FCC was wrong that bright line rules aren’t needed. “The broadband marketplace cannot effectively discipline ISP gatekeepers because a lack of competition and high switching costs prevent even fully-informed consumers from responding to unwanted ISP practices,” they said. “General consumer protection laws provide no clear protection against non-neutral ISP practices so long as they are disclosed, and antitrust laws were neither intended nor designed to address the net neutrality harms at issue here.” The FCC didn’t correctly assess costs of overturning the rules and professed lack of jurisdiction, IA said. “The Commission entirely disclaims authority it possesses under this Court’s precedent, while exceeding its authority under the only source of authority the Order recognized -- the now-repealed Section 257(c) of the Communications Act." The 2015 order wasn’t unprecedented, Consumers Union said. “It implemented the same policy the FCC had been pursuing for more than four decades, using the tool that was available to it -- a tool that the Commission had used before, from 1998-2005.” What was unprecedented was last year’s repeal, CU said. “For the first time since the 1960s, the FCC abandoned the principles of openness, nondiscrimination, and competition central to net neutrality. The resulting 2018 Order’s revision of history ignored nearly a decade of wireline broadband classification under Title II.” USTelecom President Jonathan Spalter slammed the IA pleading. “It’s ironic" the companies that "have become the internet’s most powerful gatekeepers are claiming to fight for a free and open internet that exempts them from the very rules for which they are advocating,” he said. He sought "legislation that provides uniform consumer protections that apply to all companies in the internet ecosystem, and will truly preserve and protect net neutrality principles for all.” Professors and former FCC Chief Technologists Scott Jordan and Jon Peha said it's the agency that didn’t keep up with how technology has evolved. The order “relies on technical assumptions that are no longer valid,” they said. “Consumers today turn almost entirely to providers other than their ISP for e-mail service, web page hosting, discussion forums, and countless other content and application services.” When broadband customers use Gmail, “no email is ‘stored on an Internet service provider's computers’ … so it is Google that provides the information service,” they said.

The FTC should require edge and core internet providers to offer uniform protections for online consumers, telecom trade groups told the agency Monday. Organizations from across the economy made policy suggestions by the Monday deadline for public comment on upcoming hearings on consumer protection and competition (see 1808200045).

State and local governments and a broad coalition of pro-net neutrality groups and companies said the U.S. Court of Appeals for the D.C. Circuit should overturn the FCC's "internet freedom" order, approved 3-2 last year, which itself overrode net neutrality rules approved just two years earlier. In the opening volley of a major test of Chairman Ajit Pai’s commission decisions, government petitioners said (in Pacer) the D.C. Circuit should find the FCC had no authority to pre-empt state and local police powers and reject the FCC order as an “arbitrary and capricious” departure from 15 years of FCC policy.

The divide over the state of fixed broadband competition and deployment deepened in comments posted Monday for an FCC communications marketplace report due by year-end under the Ray Baum's Act. Several industry commenters cited robust market rivalry and activity benefiting consumers, but consumer advocates generally noted shortcomings in competition, deployment and the data used to measure progress. Parties also disagreed on policy proposals. NCTA and USTelecom painted a positive picture and Incompas offered a circumspect view, in comments posted Friday in docket 18-231 (see 1808170049).

Incumbents and rivals painted different pictures of fixed broadband competition as the FCC prepares a communications market report by year-end required by the Ray Baum's Act. NCTA said competition "is delivering substantial benefits to consumers," bolstered by deregulation, and USTelecom said the fixed broadband market continues to be "dynamic," with increasing competitive alternatives. But Incompas said "data is insufficient to conclude the fixed broadband marketplace is competitive," and urged the agency to dismiss a USTelecom wholesale forbearance petition. Comments were due Friday in docket 18-231.

The FCC adopted rural call completion rules to oversee intermediate providers used by larger telecom companies to complete many calls. "We establish a registry for intermediate providers and require intermediate providers to register with the Commission before offering to transmit covered voice communications," said the unanimous two-order item issued Wednesday in docket 13-39 to implement part of the Improving Rural Call Quality and Reliability Act. The RCC orders took other measures to enhance the effectiveness of call completion rules, and denied a USTelecom petition to stay an April order's "covered provider" duties to monitor intermediate providers, pending completion of act implementation.

There's "no basis" for the FCC to treat model-based rate-of-return telcos differently than price-cap carriers on "TDM transport," as an NPRM on rural carrier business data services proposed, said a filing on a meeting ITTA, USTelecom, TDS Telecom, Great Plains Communications, Hargray Communications and Consolidated Communications executives had with Wireline Bureau Chief Kris Monteith and aides, posted Monday in docket 17-144. The telcos said "competitive disparity" with unregulated competing transport networks "hamstrings model-based rate-of-return carriers' ability to price transport appropriately" in markets. Eliminate ex-ante regulation of such RoR carriers' TDM transport, just as the FCC did for price-cap carriers, they asked. They also met with an aide to Chairman Ajit Pai to seek BDS relief. Some pressed for "fully funding" model-based and legacy RoR USF mechanisms in meetings with the Pai aide, Monteith and staffers (here, here).

USTelecom and NTCA urged the FCC to grant their requests to revisit certain rural call completion (RCC) rules adopted in an April order (see 1804170025). USTelecom noted NCTA and ITTA backed, and only NTCA opposed, its petition to reconsider rules on intermediate carrier monitoring obligations of "covered" (originating) providers not subject to a safe harbor. The rules take effect Oct. 17, though USTelecom sought a related stay. NTCA "glosses over the valid concerns" and "mischaracterizes key aspects" of the order, USTelecom replied, posted Tuesday in docket 13-39. NTCA responded to opponents of its petition asking the FCC to require covered providers to file their RCC monitoring procedures (see 1808060027). "It is difficult, if not impossible, to see how the task of submitting procedures already required to be documented by the Commission could possibly be 'burdensome,'" replied NTCA: "The benefit is certain and clear," giving covered providers "better incentives both to develop effective procedures and then to hold fast to those procedures" and allowing the FCC to forego "potentially time consuming recordkeeping requests" in future investigations. Verizon backed FCC efforts to implement the Improving Rural Call Quality and Reliability Act (RCC Act), the subject of an accompanying April Further NPRM. "Limit application of the RCC Act to rural areas," adopt "flexible service quality standards for intermediate providers" and "establish compliance deadlines," recommended the telco on a discussion with Wireline Bureau officials. HD Tandem "explained the cost-shifting techniques of different carriers in handling" rural call traffic and backed "registration for all intermediate carriers," said a filing on a discussion with some of those staffers.