The FCC at next week’s agenda meeting will take up a long-awaited order and further notice on secondary markets for spectrum. The order, following up on a 2000 proposed rulemaking, is expected to remove the barriers erected by a 40-year-old case called Intermountain Microwave that has been interpreted to mean that a licensee must keep relatively tight hands-on control of licensed property, making spectrum leasing difficult.

House Republicans aren’t using the threat of DTV legislation as effectively as they could, and it could be slowing the transition, House Telecom Subcommittee ranking Democrat Markey (Mass.) told the American Cable Assn. (ACA) Wed. He said the threat of legislation should be hanging over the industries involved in the DTV transition as a “catalyst” to negotiate. “It depends if you take the Republicans’ claim that ‘we might regulate’ as a serious threat,” Markey said, adding that committee leadership should have made it clear last year that there would be a markup of a DTV bill this session.

EchoStar Chmn. Charles Ergen said News Corp.’s proposed acquisition of Hughes Electronics and subsidiary DirecTV would represent a “mixed bag” for his company, but could be a problem for cable. In EchoStar’s earnings conference call, Ergen said: “We will respond to those things that we think are detrimental to the industry and the customers.” EchoStar swung to a $58 million first-quarter profit, from a $35 million loss a year ago, on strong subscriber growth that boosted revenue 23% to $1.36 billion.

EchoStar swung to $58 million first-quarter profit from $35 million loss year earlier on strong subscriber growth that boosted revenue 23% to $1.36 billion.

Cable operators’ assertion that prices are rising because of programming costs was challenged by some senators in a Commerce Committee hearing Tues. on cable rates and media ownership. In particular, Senate Appropriations Chmn. Stevens (R-Alaska) had tough questions for cable operators and said he doubted that programming costs were driving up cable rates. Senate Commerce Committee Chmn. McCain (R- Ariz.) asked why a la carte pricing or tiering of cable channels wasn’t a common option for consumers.

Rural ILECs and their competitors agreed in comments filed Mon. at the FCC that the advent of competition in rural areas was placing a strain on the universal service program but they offered widely divergent ways of fixing the problem. The comments responded to a variety of questions and recommendations by the FCC and the Federal State-Joint Board on Universal Service, generally about the process for designating competitors as eligible telecommunications carriers (ETCs) and the concept of portability.

LOS ANGELES -- As production costs continue to bleed red and advertisers maintain a careful handle on spending, the TV community is adopting new business models, particularly in how new series are developed. For example, rather than investing millions of dollars for exclusive rights to a particular writer, the latest trend is to enter into an overall deal for a producer, called pod deals.

CTIA, NAB and PCIA planned to file an intervenor brief late Wed., siding with the FCC and asking that the U.S. Appeals Court, D.C., deny a challenge by environmental groups to the Commission’s environmental requirements for towers. Earlier this year, the American Bird Conservancy, Forest Conservation Council and Friends of the Earth asked the court to direct the FCC to prevent the building of new towers until it completed a program-wide environmental impact statement on its tower licensing decisions in the Gulf Coast area. The groups also sought a halt in new tower approvals until the Commission implemented requirements for bird protection measures and initiated certain public participation procedures. The groups cited alleged FCC violations of the National Environmental Policy Act (NEPA), the Migratory Bird Treaty Act (MBTA) and the Endangered Species Act (ESA). They charged that towers killed 4-5 million birds annually. CTIA Gen. Counsel Michael Altschul said: “While we dispute the scientific basis for these figures, they mean nothing without some context. A recent University of Wisconsin study found that domestic cats kill between 7.8 and 219 million birds annually just in rural Wisconsin.” The Forest Conservation Council and other groups had petitioned the FCC earlier this year to require environmental assessments under NEPA for 5,797 antenna structures on the Gulf Coast that they said were harming migratory birds. The broadcast, public safety and wireless towers challenged by the groups cover a coastal region that spans 6 states. The NAB, PCIA and CTIA intervenor brief wasn’t available at press time. But CTIA said its filing noted “tower siting decisions are the result of purely private actions, with no federal funding, and minimal oversight, control or participation by the FCC.” CTIA said that when a tower was sited, there was no federal action that fell under the purview of the ESA, which controlled an “agency action;” the MBTA, which oversaw the conduct of hunters or poachers; or NEPA, which regulated a “major federal action.” CTIA said that when a tower was sited, there was no federal action for those statutes to regulate. It also said those laws don’t apply to tower builders, “as they are neither government agencies nor hunters.” The FCC, in a response brief filed late Wed., said because the Commission hadn’t “unreasonably delayed” acting on the 2 migratory bird matters that the groups said were still pending, they aren’t entitled to the extraordinary relief of mandamus to compel agency action. The FCC asked that the court turn down the petition for mandamus. The D.C. Circuit directed the FCC March 31 to respond to the mandamus petition and discuss the factors in a 1984 ruling, Telecommunications Research & Action Center v. FCC, for determining whether an agency’s action had been delayed unreasonably. The Commission told the court that the groups had participated in meetings held by the Fish & Wildlife Service Communications Tower Working Group, which was formed to develop research on the impact that towers might have on birds. They have participated in other proceedings pending before the FCC, the Commission said. In the matters cited in the court challenge, however, the FCC hasn’t acted, or failed to act, in a way that would warrant mandamus, the agency said. In the case of the Gulf Coast petition, which was filed in Aug. 2002, and a Jan. 2002 order by the Wireless Bureau, neither has “been pending for as long as even 18 months,” the FCC said. “That does not constitute an unreasonable delay, especially when, as here, the agency faces no statutory deadline.” The FCC also said the extent of the claimed injury to migratory birds raised in the petition was “speculative and the FCC has more substantial and pressing priorities that require immediate attention.”

FCC Chmn. Powell pledged Thurs. a more “proactive approach” to environmental and historic preservation issues related to tower siting, ranging from better coordination with other agencies to stepped-up enforcement. Under an “environmental and historic preservation action plan,” he told reporters the Commission would take up a proposal addressing human radiofrequency exposure and open an inquiry to evaluate the impact of towers on migratory birds. Powell also wrote Thurs. to Fish & Wildlife Service Dir. Steven Williams suggesting the agencies agree on streamlining measures, such as identifying tower categories that posed little risk to endangered species and could be excluded from routine review under the Endangered Species Act (ESA).

The Mobile Telecom Assn. (AMTA) complained to the FCC about a proposed “sharp percentage increase” in regulatory fees for the wireless messaging service. Allied National Paging Assn., American Assn. of Paging Carriers, Arch Wireless, Metrocall Holdings and WebLink Wireless raised similar concerns. AMTA asked the FCC to reassess how it apportioned regulatory fees among service categories and for the information used to predict the number of units and “a full disclosure of the other half of the equation -- the methodology by which the FCC determines the percentage of the regulatory fee burden to be assumed by each payor category.” The group persuaded the FCC several years ago to reclassify 2-way commercial mobile radio service operators with spectrum holdings below a certain level as “CMRS messaging service” for purposes of regulatory fees. AMTA said the fee for that service was 4 cents per unit in 2000, 5 cents in 2001 and 8 cents in 2002. This year, the FCC proposed raising it to 11 cents. “AMTA is deeply troubled by the FCC’s apparent disregard for its obligation to consider not only the number of units served but the burden their regulation places on the Commission in calculating the appropriate annual regulatory fee,” it said. Arch and others in a joint filing said the FCC’s method for assessing regulatory fees violated Sec. 9 of the Communications Act, which directed the Commission to assess regulatory fees to recover the costs of activities such as enforcement, rulemaking, user information services. Sec. 9 requires the fees be based on the number of employees performing the activities and be “reasonably related” to the benefits received by those who paid. “By its own admission, the Commission does not utilize any cost-accounting methodology to apportion regulatory fee revenue requirements and has not done so since 1999,” the groups said. If the FCC made cost-based adjustments in its fee categories, the revenue collected from CMRS messaging providers would fall sharply, they said. “It takes no amount of detailed analysis to immediately realize that the Commission has radically reduced the resources it expends on regulating the messaging industry while contemporaneously redirecting significant resources to regulate just about every other industry sector subject to regulatory fees,” the filing said. Separately, the law firm Bennet & Bennet asked the FCC to remove the local multipoint distribution service (LMDS) from its Multipoint Distribution service category under its regulatory fee system. The firm wants LMDS classified as a microwave service. “Classifying LMDS along with MDS as ‘multipoint distribution’ rather than with other fixed microwave services such as the 24 GHz and 39 GHz services, places LMDS at a competitive disadvantage without a rational basis,” it said.