The judge reviewing 2 Bell mergers under the Tunney Act again held up the possibility of an evidentiary hearing into the way DoJ handled the Verizon-MCI and SBC-AT&T mergers. U.S. Dist. Judge Emmet Sullivan made clear at a hearing Thurs. that he’s still not ready to close the book on the review, which started in May. As he has previously, he frequently asked rhetorical questions about whether he should be doing more to meet the requirements of the Tunney Act, particularly because it was recently strengthened.

AT&T backtracked from safety issues that it raised in obtaining a temporary order from a Tex. court restraining BPL operator Current Communications from attaching equipment to its poles (CD Nov 22 p2), a BPL official said. Current took the dispute to the PUC but settled with AT&T last week. The PUC dismissed the case Tues. at Current’s and AT&T’s requests. A PUC ruling would have clarified jurisdictional issues for states like Tex. that haven’t adopted pole attachment rules, BPL officials said.

The USDA's Agriculture's Agricultural Marketing Service (AMS) has issued a notice announcing that it is reopening the comment period for 90 days for the October 2004 interim final rule for mandatory country of origin labeling (COOL) for fish and shellfish covered commodities, which became effective on April 4, 2005.

The U.S. Supreme Court struggled over whether and how to change patent standards in a case relevant to telecom and tech industry attempts to protect intellectual property. In amicus briefs, Microsoft, Intel, Cisco and other tech companies, as well as industry groups like the Business Software Alliance, demanded the Court halt frivolous and “obvious” patents by overturning a lower court verdict (WID Aug 30 p2).

The FCC should “have better things to do than micromanage the market for cable boxes,” the Wall Street Journal said in a Sat. editorial backing cable in the integration ban debate. Open competition in cable set-tops hasn’t happened in part because Sec. 304 of the 1996 Communications Act “has never been enforced and in part because it’s unclear just how big a market there is for consumer-purchased set-top boxes when the boxes can be leased from the cable company at regulated rates for a couple of dollars a month,” the editorial said. “The regulatory machine nonetheless marches on. And unless the FCC takes action on a number of waivers requested by the cable companies, the industry faces a $600 million annual bill to comply with a regulation with no real purpose. That’s right: $600 million, which will of course be passed along in higher rates for consumers.” To promote competition, the FCC wants cable companies to use set-tops requiring a CableCARD, it said: “Never mind that the cost is high and the benefits to anyone are dubious.” Cable has had run-ins with FCC Chmn. Martin over a la carte pricing and extension of obscenity rules to cable channels, the editorial said: “This lends the CableCARD shakedown a flavor of political payback -- especially coming from what is supposed to be a deregulatory, free-market-oriented FCC.” The FCC and Martin “could do the economy a favor by worrying less about political gamesmanship and more about getting on with the deregulation the telecom industry needs,” it said. In a rebuttal letter, CEA told the Journal its editorial “argues for reversing Congress’ effort to liberate consumers forced to lease cable boxes, but it ignores the consumer benefits such competition would bring. Cable has won 2 delays from the FCC to enforce the integration ban and now wants a 3rd, CEA said. “The perverse theory -- consumers will pay more and innovation will suffer if cable can no longer maintain its set-top box monopoly -- is unworthy of your endorsement,” it told the paper. Cable wants to “preserve the lucrative income stream from renting consumers set top boxes,” CEA said: “Congress wanted consumers to have choice so it mandated a competitive cable box market. Cable proposed CableCARD as a solution. But through litigation and waiver requests, cable has tried to kill its stalking horse. The FCC correctly concluded that requiring cable companies to put CableCARDs in their own set- top boxes guarantees that cable will finally make the cards work. Like the child killing its parents and claiming special favors as an orphan, the cable industry obtained repeated delays with false promises and now criticizes the very solution it proposed simply because their efforts to delay were successful.” Cable claims that enforcing the CableCARD rule will amount to a $600 million tax on consumers are “wildly exaggerated,” CEA said. A competitive market “will lower, not raise, equipment prices, and only a monopoly would argue the reverse,” it said: “The incredible after- Thanksgiving sales on consumer electronics (with the notable exception of cable boxes) proves the efficacy of such competition. Indeed, consider the competition from the analogous standards set for home telephone interconnection which freed us from high prices and boring black phones.”

The FCC should “have better things to do than micromanage the market for cable boxes,” the Wall Street Journal said in a Sat. editorial backing cable in the integration ban debate. Open competition in cable set-tops hasn’t happened in part because Sec. 304 of the 1996 Communications Act “has never been enforced and in part because it’s unclear just how big a market there is for consumer-purchased set-top boxes when the boxes can be leased from the cable company at regulated rates for a couple of dollars a month,” the editorial said. “The regulatory machine nonetheless marches on. And unless the FCC takes action on a number of waivers requested by the cable companies, the industry faces a $600 million annual bill to comply with a regulation with no real purpose. That’s right: $600 million, which will of course be passed along in higher rates for consumers.” To promote competition, the FCC wants cable companies to use set-tops requiring a CableCARD, it said: “Never mind that the cost is high and the benefits to anyone are dubious.” Cable has had run-ins with FCC Chmn. Martin over a la carte pricing and extension of obscenity rules to cable channels, the editorial said: “This lends the CableCARD shakedown a flavor of political payback -- especially coming from what is supposed to be a deregulatory, free-market-oriented FCC.” The FCC and Martin “could do the economy a favor by worrying less about political gamesmanship and more about getting on with the deregulation the telecom industry needs,” it said. In a rebuttal letter, CEA told the Journal its editorial “argues for reversing Congress’ effort to liberate consumers forced to lease cable boxes, but it ignores the consumer benefits such competition would bring. Cable has won 2 delays from the FCC to enforce the integration ban and now wants a 3rd, CEA said. “The perverse theory -- consumers will pay more and innovation will suffer if cable can no longer maintain its set-top box monopoly -- is unworthy of your endorsement,” it told the paper. Cable wants to “preserve the lucrative income stream from renting consumers set top boxes,” CEA said: “Congress wanted consumers to have choice so it mandated a competitive cable box market. Cable proposed CableCARD as a solution. But through litigation and waiver requests, cable has tried to kill its stalking horse. The FCC correctly concluded that requiring cable companies to put CableCARDs in their own set- top boxes guarantees that cable will finally make the cards work. Like the child killing its parents and claiming special favors as an orphan, the cable industry obtained repeated delays with false promises and now criticizes the very solution it proposed simply because their efforts to delay were successful.” Cable claims that enforcing the CableCARD rule will amount to a $600 million tax on consumers are “wildly exaggerated,” CEA said. A competitive market “will lower, not raise, equipment prices, and only a monopoly would argue the reverse,” it said: “The incredible after- Thanksgiving sales on consumer electronics (with the notable exception of cable boxes) proves the efficacy of such competition. Indeed, consider the competition from the analogous standards set for home telephone interconnection which freed us from high prices and boring black phones.”

The U.S. Supreme Court Mon. hears a telecom case that not only could affect how the Bells operate but also has implications for all industries facing antitrust suits. Bell Atlantic v. Twombly looks at standards courts use to decide whether to accept antitrust conspiracy cases. The outcome could mean more private antitrust suits, more discovery costs and less freedom for companies to respond to competitive pressures, some lawyers say.

Electronic surveillance, audio and broadcast flags, and data retention measures could sail through the lame-duck session buried in appropriations or omnibus bills, the Center for Democracy & Technology (CDT) warned Mon. President Bush has called a bill authorizing his warrantless electronic surveillance program his highest priority in the session, staff counsel Nancy Libin said. A new surveillance bill from Senate Judiciary Chmn. Specter (R-Pa.), whose introduction of multiple bills has spurred varying reactions from privacy hawks, is closer to a bill he co-sponsored months ago with Sen. Feinstein (D-Cal.), and in some ways “placates” Bush skeptics, Libin said. But CDT worries because a House-passed bill -- sponsored by returning Rep. Wilson (R-N.M.) and giving the Whit House more powers over the program -- would have to be reconciled with the new Specter bill. Alternatively, if the House attaches the Wilson bill to a must-pass measure, the Senate either goes along or shuts down the govt., an unsavory option, Libin said. The good news is that Democrats next year certainly will do a “thorough inquiry” on the surveillance program and flaws flagged in the Foreign Intelligence Surveillance Act, to see if reforms are needed, as Bush claims, she said. But if the Wilson bill fails, its provision granting immunity to telecom companies that helped the NSA program may go into another must-pass bill, she added. Departing Senate Majority Leader Frist (R- Tenn.) is considered “very sympathetic” to the Senate telecom bill’s audio flag proposal, given his Nashville constituency, staff counsel David Sohn said. So it’s a candidate for incorporation into appropriations or omnibus bills, should the telecom bill die. The RIAA’s “interesting questions” on satellite radio devices’ recording functionality, and whether it involves iTunes-like downloads in addition to radio performances, are a matter for music licensing legislation, like Senate IP Chmn. Hatch’s (R-Utah) Copyright Modernization Act, not telecom, he said. The telecom bill’s broadcast flag provision has more “procedural history,” with the FCC crafting rules later struck down, and the Commerce Committee moved to limit the bill’s application to public affairs and news programming for the consideration of video bloggers and others reusing broadcasts -- a “good first step,” Sohn said. A “much briefer version,” simply authorizing the FCC to make rules, might pass. DoJ seems to have limited its data- retention proposal’s scope to “quell some of the concerns” raised by privacy hawks, Libin said. A DoJ spokeswoman told us the agency has never taken a position on data-retention specifics, referring us to Attorney General Alberto Gonzales’s statements in support of retention generally. A spokesman for Rep. DeGette (D-Colo.) -- who has said for months she will introduce a bill mandating one-year retention -- told us Congress is “absolutely too busy” to take up her idea this year. “We'll be in the driver’s seat in a month and a half, and at that point we'll definitely” introduce the bill, he said. Libin said in the briefing she’s meeting with DeGette aides this week.

A host of Internet-related bills may pass Congress through sneaky channels in the lame-duck session, the Center for Democracy & Technology (CDT) warned in an update to its “Internet Watch List” of flagged bills (WID Sept 15 p8). The bills cover electronic surveillance and telco immunity for participation in it, mandatory Web labeling for loosely defined “sexually explicit” websites, data retention for ISPs, the audio flag to limit playback options for recorded music, and blocked access to social networking and chat sites in libraries. Also Mon., CDT filed comments with the FTC about its $3 million settlement with adware maker Zango (WID Nov 7 p1).

The American Radio Relay League (ARRL) said the FCC’s failure to place in the record and provide interested parties internally generated technical studies on BPL, to allow a chance to comment, is among issues it will raise in its court challenge to the FCC’s BPL rules. In a filing in the U.S. Appeals Court, D.C., ARRL said it would also raise the issue of whether the FCC acted contrary to its decades-old interpretation of the Communications Act by excusing unlicenced users of a technology that it acknowledged causes harmful interference to licensed spectrum users from “any obligation to eliminate that interference or cease operations until the interference is addressed.” Meanwhile, the United Telecom Council filed to intervene in support of the FCC.