The recent congestion surcharges announced by some major carriers may indicate illicit collaboration, said the National Customs Brokers & Forwarders Association of America in a letter to several government officials. NCBFAA Chairman Geoffrey Powell wrote to several government officials, including Federal Maritime Commission Chairman Mario Cordero and Commerce Department Secretary Penny Pritzker, noting that the addition of "identical surcharges" raises the "question of whether this is unlawful collusive behavior." The surcharge announcements also fall outside of Shipping Act requirements and it's likely that "much or all of any congestion is attributable to their own conduct and inefficiencies," Powell said. Several major carriers have recently imposed congestion surcharges (see 1411210018).

The safe harbor protections of ISPs and free speech rights of consumers hang in the balance as the 9th U.S. Circuit Court of Appeals’ full panel prepares to hear Garcia v. Google, said pro-Google briefs filed Tuesday and Wednesday. But a neutral brief by a group of law professors cautioned against overstating the threat of 9th Circuit's previous ruling by a three-judge panel (see 1407140071). Peter Menell, University of California-Berkeley law professor, and David Nimmer, a scholar at the Berkeley Center for Law and Technology, were among those filing that brief. Oral argument is set for Dec. 15 in Pasadena, California, according to the court’s calendar.

The safe harbor protections of ISPs and free speech rights of consumers hang in the balance as the 9th U.S. Circuit Court of Appeals’ full panel prepares to hear Garcia v. Google, said pro-Google briefs filed Tuesday and Wednesday. But a neutral brief by a group of law professors cautioned against overstating the threat of 9th Circuit's previous ruling by a three-judge panel (see 1407140071). Peter Menell, University of California-Berkeley law professor, and David Nimmer, a scholar at the Berkeley Center for Law and Technology, were among those filing that brief. Oral argument is set for Dec. 15 in Pasadena, California, according to the court’s calendar.

About three hours after FCC Chairman Tom Wheeler said at the Nov. 21 commission meeting that the agency needs to be careful in adopting net neutrality rules because “the big dogs will sue," (see 1411210040), a Verizon executive emailed him to say there’s one way to avoid having ISPs barking in court: Communications Act Section 706, an ex parte filing said. Saying he’d seen reports of Wheeler’s “view of the inevitability of litigation challenging the Commission’s eventual Open Internet rules,” Randal Milch, Verizon general counsel, included a blog post he’d written. Milch’s post describes why “Open Internet rules based on Section 706, and which prohibit 'harmful paid prioritization,’ will not be the object of a successful court challenge -- by Verizon or anyone else,” said the email, posted as an ex parte filing Tuesday in docket 14-28. Under a Title II approach, “the ISPs, and perhaps some in the tech industry, will have no choice but to fight the sudden reversal of two decades of settled law,” Milch wrote in the Nov. 4 blog post. Title II proponents could also sue “if the FCC forbears from too many arcane common carrier rules for their taste (and to keep their fund raising pipeline flowing),” he wrote. Should the FCC take a Section 706 approach, Milch’s blog post said, “all of the major ISPs and their trade associations have conceded that the FCC can lawfully prohibit harmful paid prioritization on this basis -- effectively waiving their ability to challenge the FCC’s authority to do so and taking them out of the litigation path.” USTelecom has said it would be “compelled” (see 1410310050), and AT&T has said it would “expect” to challenge a Title II approach in court. Opinions varied among those involved in the debate about whether Wheeler’s comment revealed the path the agency is considering. AT&T, USTelecom and Verizon declined to comment. One Title II opponent said Wheeler’s concern about a court challenge indicated the agency is moving toward some form of a Title II approach because the prospects of an ISP legal challenge would be moot under a Section 706 approach. Free State Foundation President Randolph May disagreed in an email to us, but said “I am hopeful he's beginning to recognize that Title II, even in hybrid form, is just way too problematical.” Public Knowledge Senior Vice President Harold Feld said he didn’t read much into the remark, describing it as a "'Washington poker face.’ Wheeler is well aware that any statement he makes will get scrutinized for clues. But he can't refrain from comment because people would try to figure out what his refusal to say anything means. So 'someone will sue, so we want the best Order possible' is about as safe as a prediction as possible,” Feld said. Free Press, in a letter to the FCC, posted Monday as an ex parte filing, again disputed the methodology used by economists Kevin Hassett and Robert Shapiro in a study submitted to the commission by USTelecom, saying capital investments by broadband providers could decline by as much as nearly a third over the next five years if the FCC takes a Title II approach. Hassett and Shapiro defended their study to us at the time (see 1411190035).

About three hours after FCC Chairman Tom Wheeler said at the Nov. 21 commission meeting that the agency needs to be careful in adopting net neutrality rules because “the big dogs will sue," (see 1411210040), a Verizon executive emailed him to say there’s one way to avoid having ISPs barking in court: Communications Act Section 706, an ex parte filing said. Saying he’d seen reports of Wheeler’s “view of the inevitability of litigation challenging the Commission’s eventual Open Internet rules,” Randal Milch, Verizon general counsel, included a blog post he’d written. Milch’s post describes why “Open Internet rules based on Section 706, and which prohibit 'harmful paid prioritization,’ will not be the object of a successful court challenge -- by Verizon or anyone else,” said the email, posted as an ex parte filing Tuesday in docket 14-28. Under a Title II approach, “the ISPs, and perhaps some in the tech industry, will have no choice but to fight the sudden reversal of two decades of settled law,” Milch wrote in the Nov. 4 blog post. Title II proponents could also sue “if the FCC forbears from too many arcane common carrier rules for their taste (and to keep their fund raising pipeline flowing),” he wrote. Should the FCC take a Section 706 approach, Milch’s blog post said, “all of the major ISPs and their trade associations have conceded that the FCC can lawfully prohibit harmful paid prioritization on this basis -- effectively waiving their ability to challenge the FCC’s authority to do so and taking them out of the litigation path.” USTelecom has said it would be “compelled” (see 1410310050), and AT&T has said it would “expect” to challenge a Title II approach in court. Opinions varied among those involved in the debate about whether Wheeler’s comment revealed the path the agency is considering. AT&T, USTelecom and Verizon declined to comment. One Title II opponent said Wheeler’s concern about a court challenge indicated the agency is moving toward some form of a Title II approach because the prospects of an ISP legal challenge would be moot under a Section 706 approach. Free State Foundation President Randolph May disagreed in an email to us, but said “I am hopeful he's beginning to recognize that Title II, even in hybrid form, is just way too problematical.” Public Knowledge Senior Vice President Harold Feld said he didn’t read much into the remark, describing it as a "'Washington poker face.’ Wheeler is well aware that any statement he makes will get scrutinized for clues. But he can't refrain from comment because people would try to figure out what his refusal to say anything means. So 'someone will sue, so we want the best Order possible' is about as safe as a prediction as possible,” Feld said. Free Press, in a letter to the FCC, posted Monday as an ex parte filing, again disputed the methodology used by economists Kevin Hassett and Robert Shapiro in a study submitted to the commission by USTelecom, saying capital investments by broadband providers could decline by as much as nearly a third over the next five years if the FCC takes a Title II approach. Hassett and Shapiro defended their study to us at the time (see 1411190035).

Industry lobbyists breathed sighs of relief as both chambers cleared the STELA Reauthorization (STELAR) Act (HR-5728) last week, paving the way for a White House signature cementing the Satellite Television Extension and Localism Act reauthorization into law. The Senate announced its approval of the bill by unanimous consent Thursday night, as expected (see 1411200036). On Wednesday, the House had unanimously approved the measure, a compromise between earlier House legislation and a bill produced by the Senate Commerce Committee this fall.

Industry lobbyists breathed sighs of relief as both chambers cleared the STELA Reauthorization (STELAR) Act (HR-5728) last week, paving the way for a White House signature cementing the Satellite Television Extension and Localism Act reauthorization into law. The Senate announced its approval of the bill by unanimous consent Thursday night, as expected (see 1411200036). On Wednesday, the House had unanimously approved the measure, a compromise between earlier House legislation and a bill produced by the Senate Commerce Committee this fall.

A letter to the FCC from the leaders of the Senate's Antitrust Subcommittee about Comcast's planned buy of Time Warner Cable was “mildly positive relative to expectations” and more favorable in tone than a similar letter sent from the subcommittee in 2010 during the Comcast/NBCUniversal transaction, Guggenheim Partners analyst Paul Gallant emailed investors. The letter, sent by subcommittee Chairwoman Amy Klobuchar, D-Minn., and ranking member Mike Lee, R-Utah, asked the FCC to focus on the effects of Comcast/TWC on over-the-top companies and the ability of independent programmers to enter the pay-TV market. A letter focusing on Comcast/TWC's national broadband reach would have been more concerning, Gallant said. Though that issue was raised tangentially by the senators' concern for OTT companies, the letter devotes little space to the matter, Gallant said. “Our view continues to be a slight edge to merger approval with conditions.” President Barack Obama's endorsement of Communications Act Title II regulation for ISPs may have exposed them to a higher risk of being overturned by a Republican-controlled Congress, Gallant said. That could make approving Comcast/TWC with net neutrality conditions “marginally more attractive to the FCC” and the Department of Justice, Gallant said.

A letter to the FCC from the leaders of the Senate's Antitrust Subcommittee about Comcast's planned buy of Time Warner Cable was “mildly positive relative to expectations” and more favorable in tone than a similar letter sent from the subcommittee in 2010 during the Comcast/NBCUniversal transaction, Guggenheim Partners analyst Paul Gallant emailed investors. The letter, sent by subcommittee Chairwoman Amy Klobuchar, D-Minn., and ranking member Mike Lee, R-Utah, asked the FCC to focus on the effects of Comcast/TWC on over-the-top companies and the ability of independent programmers to enter the pay-TV market. A letter focusing on Comcast/TWC's national broadband reach would have been more concerning, Gallant said. Though that issue was raised tangentially by the senators' concern for OTT companies, the letter devotes little space to the matter, Gallant said. “Our view continues to be a slight edge to merger approval with conditions.” President Barack Obama's endorsement of Communications Act Title II regulation for ISPs may have exposed them to a higher risk of being overturned by a Republican-controlled Congress, Gallant said. That could make approving Comcast/TWC with net neutrality conditions “marginally more attractive to the FCC” and the Department of Justice, Gallant said.

Although the Rev. Jesse Jackson urged FCC Chairman Tom Wheeler not to reclassify broadband as a Title II Communications Act service to impose net neutrality rules (see 1411180058), the reclassification argument is as strong as ever, a MoveOn.Org spokesman told us Wednesday. He referred to a statement by Anna Galland, executive director of MoveOn.org Civic Action, responding to President Barack Obama’s Nov. 10 backing of Title II: “With millions of Americans having submitted comments to the FCC in support of Net Neutrality and Title II, the pressure is now squarely on Chairman Wheeler and the other FCC commissioners to quickly deliver on the vision that President Obama and the American public share -- an Internet free and open for all.” Jackson expressed concern Title II would deter broadband deployment in minority communities, said a TechFreedom ex parte notice on the Nov. 13 meeting. A Title II approach “would effectively redefine broadband as a regulated telecommunications service, which could subject the broadband industry and its services to existing state and local taxes,” said an ex parte letter sent by the American Consumer Institute Center for Citizen Research, posted in docket 14-28 on Wednesday. Higher taxes would “raise consumer prices," it said. "In turn, higher consumer prices would reduce both subscribership and consumer welfare. For the broader economy, demand suppression would reduce economic output, jobs and employment earnings.”