A La. appeals court has until Jan. 5 to rule on BellSouth’s challenge to a Lafayette, La., bond ordinance that’s to raise $125 million for the Lafayette Utilities System’s (LUS) municipal broadband service project. The 3rd La. Court of Appeals held hearings Dec. 29. At issue is a revenue pledge in the bond ordinance that allows LUS to loan the telecom unit funds from general utility revenues to cover payments on the telecom bonds if the telecom unit has insufficient revenues for a payment. A lower court upheld the ordinance but BellSouth appealed. BellSouth argued that under the 2004 La. Local Govt. Fair Competition Act, such revenue-pledge loans are legal only to cover nonrecurring startup expenses, not ongoing debt service costs. BellSouth also said the city’s revenue pledge arrangement isn’t lawful unless the bonds go into default first. It said a revenue pledge that kicks in to cover a bond payment in order to avoid a default is an illegal cross-subsidy. But the city argued that the law allows revenue-pledge loans for any purpose, at any time, so long as the telecom unit repaid the loans with interest at prevailing market rates. The city said state law allows revenue pledges to obtain better interest rates on bonds, and doesn’t require a bond default before a revenue pledge can be activated. The city said the law allows it to engage in any lawful business practice that private companies can, and said revenue transfers among affiliates, with market-rate payback mechanisms, are a common commercial business practice. The city also argued that BellSouth should have challenged the bond proposition, not the implementing ordinance, so its suit wasn’t timely filed. But BellSouth said it had no problems with the ballot proposition, and its dispute lay in the details of the enabling ordinance. Meanwhile, the La. PSC urged the appeals court to remand the matter back to a trial court, saying BellSouth’s appeal of the bond ordinance is a “collateral attack” on the PSC’s rules to level the playing field between the city’s broadband unit and private telecom providers. In those rules, the PSC agreed with the city’s interpretation of state law regarding revenue pledges and said such pledges wouldn’t be an improper cross subsidy. No party, including BellSouth, appealed the PSC rules. The PSC said state law requires that appeals of PSC rules be brought first to the 19th Judicial Circuit Court, and it would strenuously object to any ruling by the state appeals court that would overturn the PSC’s fair-play rules.

The full FCC has yet to start considering an order addressing the concerns raised by CTIA and the Rural Cellular Assn. last summer that wireless carriers won’t meet a Dec. 31 deadline that 95% of the handsets on their networks be location-capable, sources said. As a result, the FCC is expected to let the deadline pass without action. Carriers told the FCC in a July filing that due to the wireless market’s evolution and lack of consumer “churn” they could not meet the deadline. Verizon Wireless, Sprint Nextel, U.S. Cellular and Alltel -- carriers that have embraced a handset-based E-911 solution -- are affected. David Nace, counsel to RCA, said the lack of Commission action creates uncertainty for RCA members. “We're disappointed that the Commission has not viewed [action on the carriers’ joint petition] as a reasonable way to deal with the deadline that could not be met by carriers for various reasons,” Nace said: “The Commission has chosen instead to act on individual requests. We thought that they could have dealt with a large number of common problems by acting in the way we suggested. It would have given carriers the time needed to meet the performance threshold.”

Websites for the National Security Agency (NSA) and White House have been found to track visitors with cookies. Online privacy watchdogs say the practice could violate govt.-wide computing guidelines, demonstrating the difficulty of carrying out the Office of Management & Budget’s (OMB) cookie policy in practice. Although the Administration and WebTrends, the analytics firm hired to monitor Whitehouse.gov, told Washington Internet Daily the site complies with govt. rules, Cambridge, Mass. security consultant Richard Smith disagrees.

High-tech sector leader Harris Miller is weighing a run at Capitol Hill. The Information Technology Assn. of American (ITAA) president told Washington Internet Daily Fri. he’s “seriously exploring” seeking the Democratic nomination to challenge Sen. Allen (R-Va.) in 2006. While he hasn’t made a decision, Miller said he’s “received a lot of encouragement.” He told us an official announcement could come “fairly soon.”

NTIA released cost estimates for clearing federal agencies from spectrum that will be sold through the long-awaited advanced wireless service (AWS) auction, saying the expenses probably will be well below industry and congressional estimates. NTIA projected in a report the cost of 2,240 frequency assignments, across 12 agencies, will run $936 million. The Congressional Budget Office had estimated costs could run as high as $2.5 billion. The NTIA report cleared the way for an FCC auction of 90 MHz of AWS spectrum as early as June.

The videogame industry Wed. won a round in its battle against a Cal. videogame law that would require retailers to clearly label violent videogames and bar them from renting or selling those titles to customers under 18. U.S. Dist. Judge Ronald Whyte, San Jose, late Wed. handed down a preliminary injunction barring enforcement of the law, which was to have taken effect Jan. 1.

In Orlando Food Corp. v. U.S., the Court of Appeals for the Federal Circuit (CAFC) has reversed a Court of International Trade (CIT) decision, ruling that the U.S. government must pay interest to Orlando in connection with the refund of overpaid duties on a 1989 entry.

Federal IT systems are 85% secure and accredited, a level the Office of Management & Budget (OMB) wants to push to 90% in fiscal 2006. That would include each agency’s Inspector Gen. verifying the effectiveness of IT security remediation processes, a new Bush Administration report said. Although the govt. didn’t reach its 2005 goals, OMB said, agencies “continue to strive to improve the security posture of the federal government assets.”

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The U.S. Appeals Court, D.C., has authority under the reopening doctrine to review and rule on an FCC order adopting the National Programmatic Agreement (NPA), CTIA said Wed. in a supplemental brief. The jurisdictional issue was raised last week by Judge Merrick Garland during oral argument (CD Dec 9 p5) in light of earlier rulings by the court in PanAmSat v. FCC and related cases. CTIA is challenging a 2004 FCC order in which the Commission claimed authority to impose National Historic Preservation Act (NHPA) obligations on construction of wireless towers by cellular and PCS carriers licensed on a geographic basis. The group also is challenging an agency decision to extend wireless providers’ historic preservation obligations to properties “potentially eligible” for inclusion in the National Register of Historic Places. But the court has jurisdiction in CTIA v. FCC (05-1008) only if the 2004 FCC order constitutes a “reopening” of the case. “The FCC’s order differentiates between the FCC’s statutory authority to impose NHPA obligations, and the ‘public interest question’ whether the FCC should… continue to impose such obligations,” CTIA said. The FCC reopened the first question, explaining for the first time its rationale for imposing NHPA obligations on construction of wireless towers not federally funded or licensed, CTIA said. Former Comr. Kathleen Abernathy and then-Comr. Martin dissented from the order “without suggesting that the majority had refused to address the issue,” it said. In a Bureau-level order, CTIA said, the FCC later relied on the consideration of its statutory authority in the 2004 order to deny review of that issue in another proceeding. “All of that demonstrates that the FCC intended to and did in fact reopen this issue in order to achieve a definitive resolution of the statutory question,” CTIA said: “That is doubtless why the FCC, which routinely raises jurisdictional issues before this Court, did not do so in this case, either in its briefs or at oral argument.” FCC’s brief on the issue is due Dec. 19; CTIA’s reply, Dec. 22.