The FCC shouldn’t give “a perpetual position of market power” to owners of broadcast flag patents in its broadcast flag proceeding, the American Antitrust Institute (AAI) said in a study filed with the Commission. The study was part of a wave of presentations to the FCC in advance of next week’s expected broadcast flag action (CD July 29 p5). Meanwhile, Major League Baseball (MLB) and the NFL said the FCC shouldn’t approve proposals to use TiVo, RealNetworks and others to distribute programming via the Internet without adequate proximity controls.

The FCC shouldn’t give “a perpetual position of market power” to owners of broadcast flag patents in its broadcast flag proceeding, the American Antitrust Institute (AAI) said in a study filed with the Commission. The study was part of a wave of presentations to the FCC in advance of next week’s expected broadcast flag action. Meanwhile, Major League Baseball (MLB) and the NFL said the FCC shouldn’t approve proposals to use TiVo, RealNetworks and others to distribute programming via the Internet without adequate proximity controls.

While disagreeing whether the FCC should grant Verizon’s petitions concerning regulatory treatment of its broadband services provided via fiber-to-the-premises (FTTP), in comments to the Commission, telecom carriers agreed the Commission should focus on its broadband rulemaking proceedings, such as the wireline broadband and ILEC broadband NPRMs.

The Senate Commerce Committee approved several pieces of legislation Thurs. -- including VoIP, satellite home viewer improvement act (SHVIA), low power FM radio, junk fax and reauthorization of the Corp. for Public Bcstg. (CPB) -- but fighting over an FTC nominee brought an abrupt end to the markup, which could have prevented some amendments from being introduced. Sen. Wyden (D-Ore.) infuriated Committee Chmn. McCain (R-Ariz.) by invoking the “2-hour rule” which prevents committee meetings from lasting more than 2 hours when the Senate is in session. Wyden was battling McCain on procedures concerning Deborah Majoras, the nominee for FTC Chmn. Wyden opposed the nomination over disagreements with FTC action on gasoline prices. Sources said potential amendments to junk fax and CPB legislation couldn’t be offered after Wyden’s procedural move. The Committee had approved the 2 bills under unanimous consent with the understanding they could be amended later in the markup.

FCC Wireline Bureau Chief William Maher has resigned but doesn’t plan to leave until the end of Aug. at the earliest, knowledgeable sources inside and outside the Commission said Tues. Maher didn’t return a phone call to confirm the reports. “We don’t comment on individual personnel items,” said Christopher Libertelli, FCC Chmn. Powell’s wireline adviser. Maher reportedly doesn’t have a new job lined up, although many top FCC people leave without one because of ethical questions raised by interviewing for jobs while at the FCC. Sources said Maher handed his resignation to Powell on Fri. One insider, who wouldn’t discuss the resignation in detail, did emphasize that Maher “was not told he had to go.”

Wireless carriers and IXCs railed against a NASUCA filing at the FCC asking the Commission to order carriers to follow “truth-in-billing” requirements on customer bills. But a number of state interests agreed with consumer advocates that steps need to be taken to protect the interests of consumers.

The VSDA kicked off its usually upbeat annual conference in Las Vegas Wed. with a stark warning of financial peril facing its 12,000 chain and independent video store members. “Piracy is an attack on us all. We have seen what it has done to the music industry,” said VSDA Pres. Bo Andersen. “They did not see the threat coming. We do and we see it as the biggest threat to our business. We must confront it, now.”

STANFORD, Cal. -- FCC Chmn. Powell held out hope Congress would take VoIP decisions away from the Commission before recessing this summer. In a Q-&-A at the end of an appearance here Tues. night at AO2004: The Innovation Summit, Powell was asked when the questions of CALEA and 911 obligations on VoIP would be clarified. He emphasized that congressional bills reflect a “growing legislative debate” over VoIP policy “that’s real and alive.” AO2004 derives from the name of conference organizer AlwaysOn Network, which hosts Powell’s new Web log.

The new FCC all-or-nothing rule adopted last week (CD July 9 p3) is restricted to interconnection agreements approved under Sec. 252 of the Communications Act and doesn’t address how the new rule will apply to new commercial agreements, according to the text released Wed. One reason is that commercial agreements came under scrutiny after the Commission launched the further NPRM revising its interpretation of Sec. 252(i), we were told. The order will apply to all effective interconnection agreements, including those approved and in effect before the date the new rule goes into effect, the Commission said in the order, which will become effective 30 days after publication in the Federal Register. The new rules will equally apply to arbitrated and negotiated agreements, the FCC said. It found that Sec. 252(i) did “not differentiate between negotiated and arbitrated agreements.” It said the primary purpose of Sec. 252(i) was to prevent discrimination, and in the context of arbitrated interconnection agreements, requesting carriers were “protected from discrimination primarily by the arbitration process itself. Continuing to apply the pick- and-choose rule to arbitrated agreements, therefore, is an overly broad means of fulfilling the statutory purpose of protecting against discrimination.” Moreover, the Commission said, maintaining separate regimes for negotiated and arbitrated agreements would be difficult to administer. It stressed, however, that “parties are under a statutory obligation to negotiate in good faith.” The FCC also concluded in the order that it “does indeed have the legal authority” to reinterpret Sec. 252(i). Specifically, it said Congress hadn’t directly addressed the degree to which interconnection, service or network element provisions from a state-approved interconnection agreement must be made available to other requesting carriers. “We reach this conclusion because the plain meaning of the section’s text gives rise to 2 different, reasonable interpretations, and because the Supreme Court expressly recognized that the Commission has leeway to reinterpret section 252(i),” the order said. It also said the language in Sec. 252(i) didn’t limit the Commission to a single construction. On another issue raised by the competitive industry, the FCC said it found that Sec. 252(i) was “ambiguous” from the Supreme Court’s decision in AT&T v. Iowa Utilities Board, which, it said, held that the Commission had the expertise to determine a reasonable interpretation of Sec. 252(i). Several competitors had argued the Commission shouldn’t eliminate its pick-and-choose rule, which according to the Supreme Court “tracks the pertinent language almost exactly,” and is the “most readily apparent reading.” Comr. Copps, who dissented on the order, has also pointed at the highest court pronouncement, saying “this is a strong stuff for a Commission whose policy pronouncements do not always pass muster with the courts of land.” But the FCC said in the order the Supreme Court “did not hold that the Commission’s current interpretation of section 252(i) is compelled by the statute.” It said the Supreme Court had “routinely recognized that government agencies have discretion to change interpretations of ambiguous statutes, and that an agency is not stopped from changing its view.” The Commission also said “the order does not take a position on any issue outside the scope of the FNPRM.” Several parties participating in the proceeding have asked the Commission to address issues beyond those raised in the FNPRM. For example, Verizon has asked for a declaration that agreements governing network elements no longer subject to mandatory unbundling aren’t subject to Sec. 252(i) or the pick-and-choose rule; Birch has proposed structural separation of ILECs into wholesale and retail operations; and T-Mobile has urged the Commission to adopt a procedure for federal arbitration of national interconnection agreements. Those issues weren’t addressed in the order.

T-Mobile is asking the FCC to use its order on pending interim UNE rules as a lever to reopen the issue of rates for wireless backhaul, an issue first raised in 2001 but never acted on. CLECs as well are starting to look more closely at the issue, which is a panel topic at CompTel’s fall meeting.