Several wireless carriers urged FCC Mon. against expanding scope of wireless local number portability (LNP) rule. In ex parte filing, Alltel, AT&T Wireless, Dobson Communications and Cingular Wireless said Commission was considering whether to eliminate need for requirement that carriers operating in top 100 metropolitan statistical areas provide LNP and participate in number pooling only upon bona fide request from another operator. NARUC and others have raised concern that bona fide request requirement could provide loophole for carriers to not provide wireless LNP and have urged that that provision be eliminated in agency’s numbering resource optimization proceeding. Wireless carriers said they didn’t think FCC could expand wireless LNP requirement by doing away with bona fide request provision “without first addressing significant issues that have been raised about the legality of the underlying rule requiring CMRS carriers to provide LNP.” Carriers also told FCC they were intervenors in pending challenge in U.S. Appeals Court, D.C., by CTIA and Verizon Wireless of FCC decision not to forbear on wireless LNP deadline of Nov. 24. Carriers cited D.C. Circuit ruling last year in MPAA v. FCC that concluded that where Congress intentionally limited agency authority in certain area, “ancillary authority cannot be utilized to subvert the limitation.” Cingular and others said that meant Congress had “filled the hole” in such cases and there was no room for agency action. They said that language was relevant to wireless LNP because Sec. 251 of Telecom Act applied LNP only to LECs. “The exclusion of carriers other than LECs from LNP requirements and other Section 251 requirements reflects a deliberate choice by Congress, negating any implied power of the Commission to choose otherwise,” filing said.

U.S. Appeals Court, D.C., ruled Fri. that pirate radio operators could be denied low-power FM licenses based on character qualifications established by Congress in Radio Bcstg. Preservation Act (RBPA) of 2000. Ruling 7-1 in Greg Ruggiero v. FCC, judges said character provisions of Act didn’t violate First Amendment rights of former radio pirates. NAB hailed decision, while Ruggiero’s attorney said case would be appealed to Supreme Court. FCC spokesman said agency’s lawyers were reviewing decision and had no immediate comment.

Mobile satellite service (MSS) providers will have option to use ancillary terrestrial component (ATC) to supplement their satellite services under certain conditions, FCC said Thurs. Text of order wasn’t available by our deadline, but news release outlined key points, which included 8 different gating criteria and covered interference concerns for 2-GHz and L-band. Commission also adopted rulemaking on Big Leo band to address additional spectrum issues. As part of 5 interlocking items released Thurs., Commission reallocated 30 MHz from MSS band at 2 GHz for 3G wireless. CTIA still called actions “split decision for consumers,” saying it was likely to challenge ATC order.

Clear Channel Communications Chmn. Lowry Mays defended size and influence of his company to Senate Commerce Committee as those concerned about consolidation of radio stations accused Clear Channel of engaging in anticompetitive practices. Mays’s defense included debate with Senate Commerce Committee Chmn. McCain (R-Ariz.) on how much market share his company held. Since Telecom Act of 1996, which relaxed radio ownership rules, Clear Channel has grown to 1,200 stations from 60. Mays also defended Clear Channel on accusations that ownership of concert promotions dictated which acts got more air time.

FCC Chmn. Powell told reporters Wed. he expected UNE review order to be on agenda of Commission’s Feb. 13 open meeting, despite some speculation it could be delayed. He said agency definitely must act by Feb. 20, effective date of remand by U.S. Appeals Court, D.C., that could vacate agency’s UNE rules and leave telecom market in “chaos.” Added Powell: “I'm not sure what would happen. We would have 50 jurisdictions trying to figure out what to do in the absence of federal rules.”

Wireless carriers raised concerns to FCC late Mon. that “interference temperature” touted by agency’s Spectrum Policy Task Force report wasn’t yet backed up by real-world information, such as noise floor data. Responding to task force recommendation, several commenters cautioned Commission against basing spectrum allocation and policy decisions on technology advancements that hadn’t yet materialized. Among common themes that emerged in comments this week was need for more unlicensed spectrum, requirement for additional public safety bands, concern over auctioning of satellite spectrum.

Group of wireless carriers, GPS interests, airlines and others urged NTIA Dep. Dir. Michael Gallagher against relaxing ultra-wideband (UWB) rules. Letter sent late Mon. referred to current “intergovernmental discussions” on review of UWB rules adopted by FCC last Feb. Commission is expected to act next month on petitions for reconsideration of last year’s order. Latest letter to NTIA cites technical and regulatory approach being developed in Europe that came to light at ITU Study Group meeting last week in Geneva (CD Jan 21 p3). Study group met for first time to resolve international UWB policy issues, including definitions and operational and technical characteristics. Letter cited emissions mask under development by Conference of Postal & Telecom Administrations (CEPT), which letter to Gallagher said “protects public safety and a variety of commercial and government applications while preserving the potential of existing digital services and technologies to continue to innovate.” Letter was signed by Air Transport Assn. of America, American Airlines, AT&T Wireless, Delta Airlines, Lockheed Martin, Nortel, PanAmSat, Qualcomm, Sirius Satellite Radio, Sprint, U.S. GPS Industry Council, others. Companies and groups argued that CEPT’s approach factored in “technical and practical parameters” of UWB technology and recognizing need to offer more interference protection to critical services below 3.1 GHz. “CEPT also concludes that UWB cannot fully use a staircase spectrum mask as developed by the FCC, and that an additional advantage of a slope mask is that such a mask does not reduce the performance of UWB products,” letter said. CEPT approach also anticipated that 98% of all UWB applications would be for measurement and communications systems. To that end, it said it offered more protection to safety-of-life systems at or below 1 GHz than did FCC approach. It urged no change in existing UWB rules, including: (1) No communications below 3.1 GHz. (2) No relaxation of existing emission limits, including GPS. (3) Protection of noise floor in bands in national airspace. (4) No expansion of eligibility below 3.1 GHz to use different categories of UWB devices. Letter acknowledged that European approach still was in developmental stages. “While Europe’s balanced approach will ensure that the EU will reap maximum economic benefit from the ongoing digital innovation of all sectors, and including UWB, the U.S. may well find itself at a competitive disadvantage from raising the noise floor in all sectors of its digital services,” letter said.

In ruling that could mark end of protracted NextWave litigation, U.S. Supreme Court Mon. upheld lower court decision that reversed FCC on cancellation of carrier’s licenses. Court ruled 8-1, with dissent by Justice Stephen Breyer, that Bankruptcy Code barred FCC from revoking licenses held by bankrupt debtor for failing to make timely payment. Writing for majority, Justice Antonin Scalia said that reading of bankruptcy law didn’t conflict with Communications Act, which he said didn’t require FCC to cancel licenses as penalty for missed payment. “What the petitioners describe as a conflict boils down to nothing more than a policy preference on the FCC’s part,” he wrote.

Bipartisan group of 20 House members asked FCC to delay final decisions on Unbundled Network Element (UNE) Triennial Review and wireline broadband proceedings “until Congress has a sufficient opportunity to consider the impact of the pending proposals on consumers and competition,” they said in letter Jan. 24. Signers included House Govt. Reform Chmn. Davis (R-Va.) and Judiciary Committee ranking Democrat Conyers (Mich.).

Federal Election Commission should defer to FCC in how latter crafts its electioneering communications database and determines audience reach for over-air broadcasts, cable systems and satellite systems, NAB said in comments to FEC. Filing was in response to FEC’s Interim Final Rules with Requests for Comments. FEC is considering part of Bipartisan Campaign Reform Act (BCRA) involving political announcements in media. Act itself already is being challenged in court. Section of Act defines certain electioneering communications as those that can be received by 50,000 or more people. NAB said FCC was agency empowered with statutory authority to regulate broadcast, cable and satellite. What’s more, FEC’s interim conclusion that Grade B contour standard should be used to exclusion of other audience- predicting models “was not based on agency expertise or regulatory experience,” NAB said. It also said FEC had no engineering staff to evaluate comments and suggestions on calculating audience reach. FEC is “ill-equipped” to address issues raised by digital transition, including audience reach, NAB said.