Federal and state regulators and tribal representatives still are edging toward agreement to streamline siting decisions for wireless and broadcast towers. But some tribal historic preservation officers remain concerned about how agreement is being crafted and what they see as their continued general lack of input in tower siting decisions. While draft proposal earlier this year had been state prototype that would have given each state sign-off in siting decision process, model that now is focus of negotiations is nationwide pact. Several sources said it remained uncertain how nationwide agreement, as opposed to state-by-state prototype, would be embraced by state historic preservation officers, whose national organization must sign off on program. While tribal and some state concerns remain to be addressed before agreement is reached, participants said FCC’s recent creation of cultural resource specialist was move in right direction.

SBC Southwestern Bell will raise local rates in Austin, Dallas, Ft. Worth and 29 other Tex. cities and towns by $29 million annually, effective Nov. 15, after Tex. Supreme Court upheld company’s right to do so. But SBC also is seeking $142.7 million in retroactive increases covering last 4 years. Case grew out of 1997 Southwestern Bell petition seeking to reclassify 50 exchanges into higher rate groups because of access line growth. PUC in Jan. 1999 reclassified 18 exchanges but denied remaining 32 after adjusting exchange boundaries. SBC appealed and won lower court ruling that PUC was wrong to deny reclassification. State Supreme Court affirmed lower court ruling, saying PUC wasn’t authorized to circumvent otherwise appropriate rate-group reclassification by adjusting boundaries. As result, SBC will implement rate boosts of up to 65 cents per line for residential service and up to $3 per line for business service to generate $29 million annually. SBC also filed petition with PUC (Case 26719) for recovery of $142.7 million in retroactive increases for period between Jan. 1999 and Nov. of this year. SBC said that wouldn’t be retroactive ratemaking because PUC acted illegally when it denied rate increases. SBC has proposed putting surcharges on local bills for next 4 years until back principal plus interest is recovered. Procedural schedule will be set soon.

Dept. of Justice told FCC Tues. that Qwest’s latest Sec. 271 petition showed improvements, but Commission should investigate at least 2 remaining issues: (1) Qwest’s prices for unbundled network elements (UNEs), and (2) “disturbing” allegations that Qwest had tried to deceive FCC personnel about testing process. Qwest filed new petition Sept. 30 for Sec. 271 entry in Colo., Ia., Ida., Mont., N.D., Neb., Utah, Wash. and Wyo. after FCC concerns about accounting issues forced carrier to withdraw 2 earlier petitions that covered same 9 states. Justice evaluation was part of Sec. 271 process set up by Telecom Act and FCC was required to give it “substantial weight.” DoJ said “the record has improved” on several issues that troubled Justice first time -- “manual order processing, the provision of electronically auditable wholesale bills and the testing of line-sharing orders.” However, it indicated reservations about whether Qwest’s UNE prices were cost-based, saying it “continues to defer to the Commission’s ultimate determination regarding whether prices supporting Qwest’s applications are appropriately cost- based.” DoJ also said it found “troubling” a Qwest memo submitted by AT&T that indicated Qwest might have misled regulators about testing process during their visit to Qwest facilities. According to DoJ, former Qwest employee said in memo that Qwest personnel “diminished the visibility” of certain information when FCC staff visited Qwest’s CLEC Coordination Center. Misleading information dealt with running of Mechanized Loop Test (MLT) on which CLECs relied, according to memo. DoJ said memo was written around time that CLECs were requesting pre-order access to MLT capabilities that Qwest used for itself. Qwest, possibly to avoid having controversial issue raised during regulators’ visit, didn’t mention MLT test when it described provisioning process being viewed by regulators, DoJ said. Justice said Qwest denied action was relevant to Sec. 271 process but admitted “that references to MLTs were removed from chart boards in advance of visits by regulators.” DoJ urged FCC to investigate because “although the substantive effect of the alleged action remains unclear, the procedural implications are disturbing.” Qwest Senior Vp Steve Davis said “we strongly believe we are successfully addressing with the FCC the few issues identified by the DoJ.” Justice’s “positive” evaluation moves Qwest closer to increasing competition by offering long distance service to customers in those 9 states, he said.

Public safety groups last week opposed petitions by medium-sized carriers that challenged what they viewed as “strict liability” component of recent FCC Enhanced 911 Phase 2 order. Alltel, American Cellular and Dobson Cellular had petitioned for reconsideration of order that granted small and medium-sized carriers more time to meet interim Phase 2 deadlines. Carriers focused on part of order they said would deem companies noncompliant for failing to meet benchmarks without regard to manufacturers’s or vendor’s inability to supply equipment. Assn. of Public Safety Communications Officials (APCO), National Assn. of State Nine One One Administrators and National Emergency Number Assn. urged Commission to dismiss petitions “because the FCC has a duty to enforce its regulations, particularly where the carriers have negotiated and agreed to comply with the regulations by a specific date.” Rather than impose “strict liability,” groups said FCC “did no more than warn the petitioners and similarly situated carriers that it would treat a failure to satisfy waiver conditions in the same manner as a rule violation, and that such violation would be subject to possible enforcement action.” Groups reiterated concerns about “seemingly endless stream of extensions of time and waiver requests” as potentially leading to complacency among carriers instead of “all-out” compliance efforts: “The Commission has not heartlessly closed off their ability to provide a reasonable explanation for noncompliance.” CTIA took different view, raising concerns about enforcement standard that would penalize carriers for failing to comply with E911 rules “for reasons beyond their control.” Those factors, CTIA said, include vendor failure to provide compliant products on time and LEC “intransigence” in providing necessary network upgrades. CTIA said “fundamental issues of due process, as well as the Communications Act itself, mandate that the Commission provide notice and opportunity to challenge any Commission finding of noncompliance.” Sec. 503(b) of Communications Act requires forfeitures not be imposed until FCC issues notice of apparent liability. CTIA said that language couldn’t be squared with strict liability language in E911 order, which said assertions vendors couldn’t supply compliant products wouldn’t excuse noncompliance. Nextel and Nextel Partners in joint filing said FCC had recognized that action wasn’t willful in context of compliance if it involved unavoidable circumstances.

Report on testing that FCC has undertaken in wake of ultra-wideband (UWB) order adopted in Feb. is expected to be released shortly, Office of Engineering & Technology (OET) Chief Edmond Thomas told us in interview. Thomas said testing was examining areas such as ambient noise levels in different environments rather than actual UWB-based communications devices, which weren’t available in commercial quantities for such analysis. Lack of significant body of data about noise floor levels has been concern in UWB proceeding when opponents and advocates of technology disagreed on interference potential of UWB. “There’s a profound lack of data” on noise floor levels, Thomas said. “It’s profoundly difficult data collection, but it should be done as far as I'm concerned.”

ACLU launched $3.5 million national TV ad campaign to raise awareness of how civil liberties may be affected through enforcement of USA Patriot Act, which last year expanded federal govt.’s electronic surveillance, data collection and information sharing authority. First in series of ads will run on cable channels in Boston, Chicago, L.A., N.Y., Philadelphia, San Francisco, Seattle, Washington. Limited run of ads will appear on Sun. morning talk shows on ABC, CBS and NBC networks in all those cities except Boston and Philadelphia.

Continued congressional extension of copyright terms “inhibits speech and the free exchange of ideas,” The Washington Post editorialized Wed. in reference to recent argument before U.S. Supreme Court in Eldred v. Ashcroft (CED Oct 11 p9). “There is no question that the plaintiffs in the current litigation -- a group of publishers and individuals who deal in public domain materials -- have a righteous gripe against Congress’s move in 1998 to offer an additional 20 years of protection,” editorial said: “At some point, serial and retroactive extensions of ‘limited times’ render copyright protection unlimited.” With that argument paper echoed plaintiff’s litigator, Stanford U. Prof. Lawrence Lessig. However, editorial also raised concern expressed by several justices -- whether it would be appropriate for Supreme Court to act: “[T]he hard thing about this case is that at any given moment -- including the present time -- copyright law specifies a limit. While that limited duration is currently far too long, it formally complies with the Constitution’s requirements.” Editorial said court should act if it clearly could articulate test to determine whether copyright term was indeed limited or whether it no longer advanced creative arts as Constitution required. If it can’t define that test, paper said, court is not appropriate venue to revise copyright law.

Rep. Terry (R-Neb.) introduced bill that would create rural “voice” at FCC through creation of Rural Affairs Advisory Board that would consist of unpaid 5 members from rural telecom companies -- 4 wireline representatives and one from wireless field. It would issue advisory opinions on new rules proposed by FCC, as well as regulations already in place, Terry’s office said. “Telecommunications companies that serve rural America are at a competitive disadvantage because the FCC’s decisions neglect or even ignore their unique needs,” Terry said. Bill would give small businesses “legal recourse to get answers if their suggestions are ignored,” he said: “Providing wireless, wireline or broadband services to rural America is not a glamorous proposition. Large companies mostly ignore these areas because the infrastructure needs are great and the costs of deployment are high, but the federal support is lacking.” Companies that serve rural Neb. must follow same “inflexible” FCC rules as those for nationwide companies that serve large metropolitan areas, he said. Bill would increase federal govt.’s accountability to Regulatory Flexibility Act that compels federal agencies to create flexible policies with small and rural businesses in mind. OPASTCO said Terry “deserves credit” for introducing bill, but stopped short of endorsing measure. It said bill, along with FCC rural office proposal by Sen. Harkin (D-Ia.), deserved congressional hearings. Harkin hasn’t yet introduced bill. “It is absolutely critical that the issues raised by the Terry bill, Harkin proposal and other similar initiatives are not lost at the end of the 107th Congress,” OPASTCO Pres. John Rose said. CTIA “expressed dismay” at introduction of bill that it said would increase bureaucracy of FCC. “You don’t fix the problem of burdensome and unnecessary regulations by creating yet another cog in the regulatory wheel,” CTIA Pres. Tom Wheeler said. “The best way to expand wireless services for all Americans is to stop the headlong rush to impose unfunded mandates that dominate regulatory thinking today.” Neb. PSC Chmn. Anne Boyle also stopped short of expressing support for bill, saying it was “better than nothing.” She said FCC already had Wireless Bureau to address those concerns and that wireless presence wasn’t warranted on rural board. Boyle said she supported Harkin proposal to create rural office in FCC, and said board that met periodically and outside of FCC wouldn’t likely have level of access to Commission needed to monitor rural issues. “It’s not the superior bill,” Boyle said.

FCC unanimously rejected EchoStar application to acquire Hughes’ DirecTV, Chmn. Powell announced Thurs. He said Commission “declined” to approve deal because “combination of EchoStar and DirecTV would replace a vibrant competitive market with a regulated monopoly.” He called application “without foundation.”

FCC shouldn’t “rush to judgment” before Justice Dept. (DoJ) completes its review of plan to take over General Motors’ Hughes Electronics and DirecTV, EchoStar said: “There are a many important benefits for consumers at stake.” Facing uphill battle to win approval for $18 billion transaction, EchoStar in ex parte filing Mon. (CD Oct 8 p1) asked Commission to delay decision until DoJ completed its review and to hold en banc hearing or public forum “consistent with practice for complex and important mergers” such as AOL-Time Warner. During AOL-Time Warner merger, FCC waited until DoJ gave its approval before making decision. Commission said it was “reviewing transaction” and set no timetable for acting on EchoStar’s delay request.