Neb. Public Service Comr. Anne Boyle criticized a wireless industry voluntary consumer code Fri. for not holding carriers accountable for implementation. “Nobody really knows if they are abiding by it,” Boyle told a Progress & Freedom Foundation lunch. But Emory U. Prof. Paul Rubin argued that state regulations, including proposed rules in Cal., limited consumer rights by reducing options for finding lower prices.

The fact that U.S. Supreme Court justices act as generalists rather than having some specialize in areas of technology or industry hinders the court’s ability to rule intelligently on copyright and telecom cases, Assoc. Justice Stephen Breyer said last week. He cited other reasons why he believed the court had not ruled appropriately in several key cases, including Eldred v. Ashcroft and Verizon Communications v. FCC, arguing that the court’s decisionmaking process could be improved if it relied more on outside expertise, which often came in the form of court filings.

Citing complaints from customers and carriers, the FCC Wireless Bureau asked AT&T Wireless late Thurs. to provide information on apparent problems with wireless local number portability (LNP). The Bureau gave the carrier a week to produce details on “difficulties that AT&T Wireless appears to be facing with regard to porting numbers to other carriers.” Meanwhile, in a victory for the FCC, the U.S. Appeals Court, D.C., late Thurs. turned down a USTA request to stay wireline-to-wireless LNP rules.

The Direct Mktg. Assn. (DMA) told FCC Consumer & Governmental Affairs Bureau Chief Dane Snowden this week it still hadn’t reached agreement with NeuStar to prevent autodialed telemarketing calls on some wireless phones. DMA had raised concerns at the FCC before wireless local number portability (LNP) took effect Nov. 24 on how telemarketers could be notified when a wireline number changed to wireless. The Telephone Consumer Protection Act (TCPA) bars autodialed telemarketing calls to wireless phones. Snowden recently wrote to DMA on how telemarketers could comply with the TCPA, laying out several options that NeuStar had presented, including the possibility of a secure Web site for telemarketers receiving routine updates on wireless numbers. DMA told Snowden Tues. that NeuStar had withdrawn an offer to potentially provide access to such a centralized database. “The 2 other options NeuStar presented in its ex parte submission do not appear to be workable or cost effective,” DMA said. As an example, it said companies conducting national telemarketing campaigns would be subject to the “burdensome” process of collecting data from nearly 700 different telecom providers. “This will likely prove unreliable, and would unquestionably entail undue burden and expense,” DMA argued. “DMA and its members still have no feasible way to avoid placing autodialed calls” to customers who have ported wireline numbers to a wireless system, it said. “Unless we can expeditiously resolve this problem, we remain troubled by the prospect that intermodal number porting will spawn thousands of unintentional TCPA violations in the coming months.”

House Resources Committee Chmn. Pombo (R-Cal.) exhorted the Advisory Council on Historic Preservation (ACHP) to curb the expanded reach it had given to part of the National Historic Preservation Act (NHPA), citing the impact on wireless towers. His concerns centered on ACHP rules that make federal agencies weigh the impact of an “undertaking” such as tower construction on historic properties. If the ACHP doesn’t address this, Pombo said: “Please know that we will not hesitate to take actions to restore Section 106 to the carefully defined scope originally intended by Congress.”

The latest politician to target violent videogames is Cal. Assembly member Leland Yee (D-San Francisco), who is preparing to introduce a bill that would restrict their sale to children. He said the bill would “expand the definition of `harmful matter to children’ to include videogames that visually depict serious injury to human beings in a manner that is especially heinous, atrocious or cruel.”

Making good on a pledge to vigorously defend wireless local number portability (LNP) in court, the FCC urged the U.S. Appeals Court, D.C., to deny a USTA request to stay wireline-to-wireless LNP rules. The Commission told the court Wed. that although USTA argued it unlawfully had altered a rule without public notice, the agency “simply clarified a longstanding rule” in line with the Administrative Procedure Act (APA). Calling LECs “virtual monopolists,” the FCC rejected USTA arguments that the rules would subject LECs to unfair competition: “The rule at issue simply reflects technological and marketplace realities.”

Five local govt. organizations have sought an en banc rehearing “on a clear slate” of a 9th U.S. Appeals Court, San Francisco, order vacating the FCC’s declaratory ruling that cable modem service was an interstate information service (CD Oct 7 p1). In overturning the FCC’s order, the court had said it was bound by its earlier conclusion in AT&T v. Portland that cable-delivered Internet service contained both information service and telecom components. Local govts. said they had argued before a 3-judge 9th Circuit panel that as an information service made available generally to all subscribers over a cable system, cable modem service was a cable service. That argument, they said, was based on language in several provisions of the Telecom Act, the legislative history of the cable service definition and prior FCC decisions. But the court didn’t address that argument, saying it felt bound by an earlier panel’s decision in AT&T v. Portland, that cable modem service wasn’t a cable service. The cable services argument wasn’t presented in Portland because both parties assumed cable modem service was a cable service, they said, so they never briefed that issue. The Portland panel didn’t ask for additional briefing before deciding the case on grounds not raised by the parties, they said. “The results of these peculiar circumstances are that, although 2 panels of this court have now ruled that cable modem is not a cable service, neither has even once addressed the merits of the petitioners’ arguments that it is a cable service,” they said. The en banc rehearing petition was filed by the National Assn. Telecom Officers & Advisors (NATOA), National League of Cities, U.S. Conference of Mayors, National Assn. of Counties and the Tex. Coalition of Cities for Utility Issues.

Congress took a step Tues. toward putting the media ownership issue to rest. In a compromise between the White House and congressional Republicans, officials said, the omnibus appropriations bill would establish a permanent 39% broadcast ownership cap -- sidestepping a veto threat, weakening the court challenge to the cap, eliminating questions of waivers and divestiture and making further legislation on the ownership cap unnecessary.

Wireless local number portability (LNP) began Mon. amid continued regulatory challenges, including a new petition for partial stay of the FCC’s wireline-to-wireless order that was filed at the Commission late Fri. by a coalition of rural carrier groups. The groups representing so-called 2% carriers -- those that individually serve less than 2% of telephone consumers in the U.S. -- included the Independent Telephone & Telecom Alliance (ITTA), the National Telecom Co- op Assn (NTCA) and OPASTCO. Although the FCC last week denied a similar petition by USTA and CenturyTel, those filing the new one contended they were raising wireline- wireless issues that hadn’t been specifically raised before. USTA and CenturyTel since have sought a stay in the U.S. Appeals Court, D.C., where the case is pending. The D.C. Circuit already had turned down a petition by rural carriers seeking a stay of the wireless-to-wireless porting rules.