The FCC’s regulation of rural broadband is akin to the taxation of the British government two and a half centuries ago, said Harold Furchtgott-Roth, former FCC commissioner and head of the Hudson Institute’s Center for Economics of the Internet. “Today the situation is eerily similar,” he said at a Hudson Institute panel on rural telecommunications Monday. His comparison kicked off a series of scathing critiques among panelists of how FCC policy contributed to the U.S.’s rural broadband divide. “Flat out, it’s a terrible set of rules that they came up with,” Furchtgott-Roth said of the FCC’s USF/intercarrier compensation order of November 2011.

Telcos, others, reiterated their opposition to a “further guidance” notice released by the FCC Office of Native Affairs and Policy, which requires that telecom companies engage with tribal governments whose lands they serve. In reply comments on a USTelecom petition for reconsideration, non-tribal entities elaborated on their earlier concerns (CD Sept 28 p6) that the new rules violate the Administrative Procedure Act, the Paperwork Reduction Act (PRA), and the First Amendment. U.S. Cellular, C Spire Wireless, and Pioneer Cellular argued the further guidance was not accompanied by “any comparative analysis” of the costs and benefits of the requirements, and has “numerous procedural and legal deficiencies” (http://xrl.us/bntu9p). Blooston Rural Carriers disputed comments by Gila River Telecommunications that the rules requiring engagement with tribes do not implicate the PRA (http://xrl.us/bntu99). Tribal entities continued to oppose USTelecom’s petition. Gila River maintained that the further guidance was “not only procedurally and constitutionally proper,” but also offered the opportunity for better coordination and increased deployment of telecom services on tribal lands (http://xrl.us/bntvaf). The National Tribal Telecommunications Association said those who support USTelecom’s petition fail to grasp the concept that tribal governments are “sovereign” on tribal lands, and “serve the role of regulator, legislature, judicial, and other executive branches of non-Tribal state governments. It is difficult to imagine USTelecom members refusing to engage with their state commission or local government in providing current services or in planning future broadband, voice, or other services,” NTTA said (http://xrl.us/bntvaq).

A proposal for the FCC to handle class action complaints was met with scorn, as commenters called the request “impractical,” “unnecessary,” “unlawful,” “unrealistic,” and “unworkable.” No one spoke in favor of the proposal, made in July by Solvable Frustrations (SFI), a recently formed online social network that collects customer complaints. SFI had said an FCC class complaint procedure could be an “excellent and efficient tool to address unlawful acts by carriers” (http://xrl.us/bntee2).

The FCC released a further notice of proposed rulemaking (http://xrl.us/bnsshn) Friday seeking comment on a series of questions about its program access rules. The notice was part of a broader rulemaking in which the commission let a ban on exclusive contracts between cable operators and the networks they own expire. In its place, the order adopted a case-by-case framework under Section 628(b) of the Communications Act for evaluating whether such arrangements hurt competition, with a rebuttable presumption that exclusive deals involving regional sports networks are considered unfair, industry and FCC officials said.

State regulators asked the FCC Friday to suspend an updated method of determining high-cost support from the USF (http://xrl.us/bnsr4j). The motion comes after months of debate and allegations from national and state entities that the year-old reform will hurt companies due to its unpredictability. “Clearly [the FCC model] is going to have the most impact on high-cost, rural-type carriers,” NARUC Telecom Committee Chair John Burke told us. It will impact states differently depending on how many such companies they have, he said. The FCC’s methodology of quantile regression analysis was introduced in its November USF/intercarrier compensation order, adjusted in April and determines more than 700 companies’ high-cost support as of this July. Other NARUC telecom committee members are “concerned,” Burke said.

The NCTA criticized proposals from USTelecom that the cable association said would have the commission prejudge, in carriage disputes, in favor of competing MVPDs “virtually all of the key issues relevant to assessing the competitive impact of an exclusive contract” between a cable operator and network it owns (http://xrl.us/bnshpu). The FCC’s ban on such exclusive contracts is set to expire Friday. USTelecom’s approach “is tantamount to extending the per se ban,” the NCTA said. “Just as there is no factual or legal basis for retaining the per se ban ... there is no justification to adding new burdens to the standard for case-by-case adjudication of program access complaint,” it said. There’s no basis for adopting special presumptions for the “top 20” cable-affiliated networks, or for regional sports networks (RSNs) or networks that carry lots of sports programming, it said. “Unlike the presumption for terrestrially-delivered RSNs, which was at least based on some record of evidence and studies, such an expansive presumption would have absolutely no evidentiary support,” it said. It also attacked arguments that the commission should adopt a preemption that exclusive contracts involving such networks is “unfair” and “significantly hinders competition,” it said. An attorney for Time Warner Cable raised similar arguments during a meeting with Commissioner Ajit Pai’s chief of staff, an ex parte notice shows (http://xrl.us/bnshq3). “The Commission should reject recent proposals to presume that withholding any RSN programming or certain other content necessarily” is an unfair act, hinders competition, or entitles a complainant to injunctive relief. Former Wireless Bureau Chief Fred Campbell wrote on the Communications Liberty and Innovation Project Blog that the FCC should let the ban expire this week (http://xrl.us/bnshrd). “With the exception of sports programming, which ‘may be nonreplicable,’ the program access concerns that animated congress in 1992 no longer exist,” he wrote. He pointed to Netflix’s recent investments in developing its own programming as a success where there’s no regulation guaranteeing it a right to access other’s content. “Verizon, AT&T and the satellite providers are, however, eligible for statutory access to cable programming, which reduces their incentives to invest in their own programming.”

Rep. Ed Markey, D-Mass., urged the FCC not to let the commission’s program access rules expire, in a letter sent Tuesday (http://xrl.us/bnsgp7). A draft order that circulated last month indicated the FCC will allow its ban on exclusive contracts among vertically integrated cable programmers to sunset on Friday (CD Sept 17 p2). But Markey said letting the rules sunset could “lead to a new dawn of less choice and higher prices for consumers.” Markey said the rules “remain a foundation for competition, and conditions in today’s video marketplace necessitate their continuance. If we do not extend the program access rules, the largest cable companies could withhold popular sports and entertainment programming from their competitors, reducing the competition and choice that has benefited consumers.” Markey was an author of the 1992 Cable Act which first created the program access rules. Comcast, Time Warner Cable, Cox Communications and DirecTV declined to comment on the letter. NCTA would not comment on Markey’s letter but said the commission should reject any proposals to renew the ban on exclusive contracts among vertically integrated cable programmers, in an FCC ex parte filing Wednesday. “The ban no longer remains necessary to preserve and protect competition and diversity in what has become a robustly competitive and diverse video marketplace -- especially where case by case adjudication of complaints under the general provisions of Section 628(b) remains available,” the filing said. The Independent Telephone and Telecommunications Alliance echoed Markey’s concerns in a separate letter and urged the commission to extend the exclusive contract prohibition of the program access rules for an additional five years. A group of telecom companies called the Coalition for Competitive Access to Content (CA2C) said it agreed with Markey and urged the FCC to extend the program access rules, in a separate letter. “Absent the rule, cable operators could withhold essential must-have programming that they own from their competitors, including some of the most popular national programming networks, as well as crucial regional sports networks,” the letter said. CA2C members include: American Cable Association, AT&T, CenturyLink, Consolidated Communications, Dish Network, DirecTV, Eastern Rural Telecom Association, Independent Telephone and Telecommunications Alliance, National Telecommunications Cooperative Association, National Rural Telecommunications Cooperative, Organization for the Promotion and Advancement of Small Telecommunications Companies, USTelecom, Verizon, and Western Telecommunications Alliance.

USTelecom nominated Cesar Caballero of Windstream to be an ILEC representative on the Universal Service Administrative Co. board (http://xrl.us/bnsggg). Caballero is senior regulatory counsel at Windstream and has 20 years of experience in the telecom industry, USTelecom said.

USTelecom released a “Cybersecurity Toolkit” Monday, which it said is designed to be a “one-stop online source of information” for individuals involved in cybersecurity, research and planning (http://xrl.us/bnr7me). It provides links to congressional, academic and military reports, and information from groups tracking real-time cyberthreats.

Telcos and carriers expressed strong support for a USTelecom petition for reconsideration of an FCC public notice that imposed various obligations on eligible telecommunications carriers that deal with tribal groups. The rules violate the Administrative Procedure Act (APA), the Paperwork Reduction Act (PRA), and the First Amendment, groups say. But tribal groups that commented strongly objected to the petition, calling it “misguided” and “deeply disappointing.” The public notice (http://xrl.us/bnro5r) offered “further guidance” on the tribal government engagement obligation provisions in the USF/intercarrier compensation order, and USTelecom took issue with its calls for “culturally sensitive” marketing and in-person meetings between telecom executives and tribal leaders.