Federal agencies could do a better job soliciting and responding to comments from the public, the Government Accountability Office said in a report released Tuesday (http://xrl.us/bobvzg). From 2003-10, agencies failed to publish a notice of proposed rulemaking 35 percent of the time when passing “major” rules, the report found. GAO defined a major rule as one that has a significant impact on the economy, with an annual effect of at least $100 million. For “nonmajor” rules, which have less economic significance and involve more routine issues, agencies neglected to publish an NPRM 44 percent of the time, the report said. GAO recommended that the Office of Management and Budget encourage agencies to respond to comment on final major rules that were issued without an NPRM.

NAB wants a delay in its appeal of FCC rules requiring that public files go online. The association’s Friday request for the appeals court hearing the case to hold NAB v. FCC in abeyance could give the agency more time to work out a middle ground between broadcasters that opposed the order and nonprofits that back such disclosure, public interest lawyers told us. They didn’t contest the association’s motion to hold case No. 12-1225 in abeyance. The filing is separate from NAB’s efforts to get commission staff to eliminate some requirements that years-old documents now in paper form in TV stations’ studios must go online starting next month, industry officials said. They said the Media Bureau had been working on such efforts, but not yet ruled.

Federal agencies could do a better job soliciting and responding to comments from the public, the Government Accountability Office said in a report released Tuesday (http://xrl.us/bobvzg). From 2003-10, agencies failed to publish a notice of proposed rulemaking 35 percent of the time when passing “major” rules, the report found. GAO defined a major rule as one that has a significant impact on the economy, with an annual effect of at least $100 million. For “nonmajor” rules, which have less economic significance and involve more routine issues, agencies neglected to publish an NPRM 44 percent of the time, the report said. GAO recommended that the Office of Management and Budget encourage agencies to respond to comment on final major rules that were issued without an NPRM.

After the suicide of open-Internet activist Aaron Swartz, Sen. John Cornyn, R-Texas, who is on the Judiciary Committee, questioned U.S. Attorney General Eric Holder about the Justice Department’s prosecution of Swartz for violations of the Computer Fraud and Abuse Act. Swartz -- who downloaded millions of academic articles without authorization -- faced 35 years in prison and $1 million in fines as a result of the prosecution. “Mr. Swartz’s case raises important questions about prosecutorial conduct,” Cornyn wrote in a letter to Holder (http://1.usa.gov/VxJkOt). In the letter, Cornyn asked if “the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act? If so, I recommend that you refer the matter immediately to the Inspector General."

After the suicide of open-Internet activist Aaron Swartz, Sen. John Cornyn, R-Texas, who is on the Judiciary Committee, questioned U.S. Attorney General Eric Holder about the Justice Department’s prosecution of Swartz for violations of the Computer Fraud and Abuse Act (CFAA). Swartz -- who downloaded millions of academic articles without authorization -- faced 35 years in prison and $1 million in fines as a result of the prosecution. “Mr. Swartz’s case raises important questions about prosecutorial conduct,” Cornyn wrote in a letter to Holder (http://1.usa.gov/VxJkOt). In the letter, Cornyn asked if “the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act? If so, I recommend that you refer the matter immediately to the Inspector General.” Demand Progress -- a group founded by Swartz -- is encouraging users to voice their support for “Aaron’s Law,” a bill by Rep. Zoe Lofgren, D-Calif., that would reform the CFAA by decriminalizing online terms of service violations. “We need to pass Aaron’s Law AND further amend the CFAA,” Demand Progress wrote on its site (http://bit.ly/YaANo3), calling the CFAA an “over-broad” and “dangerous statute.” The group encouraged viewers to send a letter to their members of Congress expressing support for the bill and calling for “an investigation into prosecutorial misconduct in Aaron’s case."

The Greenlining Institute, which represents the interests of minorities, warned that it is considering filing a late petition asking the FCC to deny Deutsche Telekom’s proposal to buy MetroPCS, to merge the company with T-Mobile USA. Greenlining and T-Mobile have been at odds over whether officials with the group should have access to confidential information filed at the FCC on the transaction. On Jan. 7, T-Mobile argued in a filing that the group is not a participant in the proceeding and should not have access. “Shortly after the transaction’s announcement, Greenlining and T-Mobile engaged in a series of conversations regarding the purported benefits of the proposed transaction,” Greenlining told the FCC (http://xrl.us/boa8qf). “At those meetings, T-Mobile repeatedly stated that it wanted to be completely open about the transaction, and that Greenlining would have access to T-Mobile’s confidential materials. Greenlining stated that it tentatively supported the transaction, and if T-Mobile addressed the issues raised by Greenlining, Greenlining would file comments in support of the transaction with both this Commission and the California Public Utilities Commission (CPUC).” Subsequently, “it appears that T-Mobile falsely represented that if Greenlining did not make an initial filing with the Commission, T-Mobile would not object to the Greenlining’s receipt of T-Mobile’s Confidential and Highly Confidential documents.” Greenlining said it’s “exploring the possibility of submitting a late-filed Petition to Deny on the grounds that T-Mobile’s material misrepresentations constitute good cause for the delay.” T-Mobile responded. “The combination of T-Mobile USA and MetroPCS will create a stronger carrier, well situated to compete effectively against the other nationwide carriers and better positioned as the country’s leading value carrier,” said Kathleen Ham, T-Mobile vice president. “Importantly, our FCC applications demonstrate that this transaction will result in substantial service quality improvements for the customers of both companies. Suggestions to the contrary are baseless, as are suggestions that T-Mobile has acted in any way to mislead the Greenlining Institute. We intend to respond fully at the FCC."

The lack of exclusive deals between unaffiliated regional sports networks and multichannel video programming distributors undercuts cable industry arguments that exclusive deals among affiliated RSNs and cable MVPDs create diversity of programming choices, said Verizon and Verizon Wireless in reply comments filed with the FCC Monday. Verizon’s reply and others (http://xrl.us/boax3q) responded to the commission’s rulemaking notice on program access rules, which contained a proposal that would make it harder for MVPDs to withhold RSNs they own from competitors by setting up a rebuttable presumption that such withholding is unfair under the Communications Act. The rulemaking was initiated as the commission allowed a ban on exclusive contracts between affiliated networks and distributors to expire (CD Oct 9 p1).

Proposed changes to FCC forms used to report annual and quarterly revenue raise Paperwork Reduction Act concerns, Sprint Nextel said in comments filed Friday. Carriers also questioned whether the new language on reseller certification conflicts with the commission’s 2012 wholesaler-reseller clarification order. Most commenters commended the commission for soliciting suggestions on the instruction changes, but XO cautioned that even with comments the instructions lack the legal significance of an actual rule.

C-SPAN asked a federal court to dismiss antitrust allegations raised by Sky Angel, an online video distributor. Sky Angel sued C-SPAN In U.S. District Court, Washington, D.C. (CD Nov 14 p15), saying the cable network, a service of the major cable operators, refused to license its programming to Sky Angel’s Internet video service.

C-SPAN asked a federal court to dismiss antitrust allegations raised by Sky Angel, an online video distributor. Sky Angel sued C-SPAN in U.S. District Court for the District of Columbia (WID Nov 14 p5), saying the cable network, a service of the major cable operators, refused to license its programming to Sky Angel’s Internet video service.