San Jose and Seattle led lawsuits against a September FCC wireless infrastructure order aimed at speeding 5G buildout by targeting state and local hurdles to small-cell deployment. It "exceeds the FCC’s statutory authority" and "is otherwise contrary to law, including the Constitution of the United States,” said San Jose, Las Vegas, Los Angeles, Portland and other western localities in one petition (in Pacer) filed Tuesday at the 9th U.S. Circuit Court of Appeals (case 18-72883). Seattle with Arizona, Oregon and California municipal leagues sued at the same court. “The Commission’s rules are an unlawful pre-emption of local and state government authority promulgated without response to the arguments advanced by Petitioners,” said the petition (in Pacer) in case 18-72886. The FCC’s response is due Feb. 11 for both cases, court dockets said. “The smart infrastructure policies the FCC put in place will help ensure that every community in the country benefits from the economic opportunity 5G can enable," said Commissioner Brendan Carr's spokesperson. "The FCC struck the right balance. The commonsense ideas we put in place respond to several dozen mayors and local officials that called on the FCC to act. Our decision tracks the road map already laid out by the appellate courts, and we look forward to the court ruling on our decision." U.S. Conference of Mayors CEO Tom Cochran applauded the suits. “Instead of working with local governments to win the global race to 5G, the FCC is forcing cities to race to the courthouse to defend the most basic of local government rights -- the authority to manage and seek fair compensation from private users that seek to employ public assets, owned and paid for by local taxpayers, for their personal profit without any obligation to serve all of the community,” he said. NATOA, "along with every major municipal organization and dozens of individual municipalities, opposed the FCC’s decision to adopt this Order," emailed General Counsel Nancy Werner. "We will continue to join local governments in challenging this extraordinary federal agency overreach." CTIA and the Wireless Infrastructure Association didn't comment. Seattle earlier threatened suit (see 1810020041). San Jose officials reported early success speeding up permitting process for small cells after signing agreements with carriers (see 1810220030).

We misspelled the name of ICANN Expedited Policy Development Process Chair Kurt Pritz (see 1810220002). ... Final briefs by DOJ and AT&T with the U.S. Court of Appeals for the D.C. Circuit are the same as previously filed, adding only page numbers (see 1810190006).

The FCC said it received all approvals needed to launch its Office of Economics and Analytics (OEA). Giulia McHenry, who recently joined the Office of Strategic Planning and Policy Analysis from NTIA where she was chief economist, will be acting chief, the FCC said Thursday. OEA is to open by year's end, the agency said. The FCC approved the office in January over dissents by Commissioner Jessica Rosenworcel and then-Commissioner Mignon Clyburn (see 1801300026). The agency then filed its plans with the Office of Management and Budget and with the employee union. “We are in the final stages,” Chairman Ajit Pai said Thursday. Under the agreement with the union, “we are committed to helping all FCC employees involved make a smooth transition to the new office.” About 100 employees from bureaus and offices across the agency will staff the OEA, the commission said. Rosenworcel said Thursday the OEA's work must include peer review. “It is unacceptable that so much of the recent economic work of this agency was not subject to any standard of peer review,” she said: “Rigorous peer review of scientific and economic work has been encouraged and even required” since President George W. Bush's administration. Rosenworcel said transparency is critical. “The FCC needs to be honest about how much of the economic data presented to it is advocacy,” she said. "We must avoid the risk of relying on numbers masquerading as fact when they simply add up to an effort to champion a desired outcome.” Having "worked hard” on OEA, Commissioner Mike O’Rielly said he will be “particularly focused on ensuring that the Office ramps up the FCC’s cost-benefit analysis and provides sufficient input prior to items’ consideration.” He looks forward to a proceeding on criteria for such analyses.

The FCC scheduled a conference call Nov. 1 at 2 p.m. EDT with tribal governments on the agency's notice of inquiry to consider creating a $100 million telehealth pilot program, said a public notice Wednesday of the Office of Native Affairs and Policy and the Wireline Bureau Telecom Access Policy Division. The FCC plans a workshop for tribal authorities and members Nov. 14-15 on the Nez Perce Reservation in Lewiston, Idaho, said another PN. It said the workshop will include a presentation on the recent Connect America Fund Phase II auction and the upcoming Mobility Fund Phase II auction, both designed to support rural broadband deployment, including on tribal lands.

CNN Worldwide President Jeff Zucker condemned comments on the media by President Donald Trump after an apparent attempted bombing of the network and several prominent Democrats Wednesday. “There is a total and complete lack of understanding at the White House about the seriousness of their continued attacks on the media," Zucker said. FCC Commissioner Jessica Rosenworcel tweeted: “Right now would be a really good time to make clear that media is not the enemy of the people" The president, "and especially the White House Press Secretary, should understand their words matter,” Zucker said. “They have shown no comprehension of that.” The White House didn’t comment.

The Wireless ISP Association said it strongly supports efforts to modernize FCC Form 477, but the rules should take into account wireless connections. “Allow fixed wireless providers to submit geospatial data that show coverage areas (i.e., polygons of coverage filed via shapefiles or rasters) as an alternative to reporting via census blocks, street addresses, road segments or geocoding,” said a filing posted Tuesday in docket 11-10. “Such geospatial data would provide more accurate deployment data for broadband services, especially in rural areas. ... Such data would also be a less burdensome reporting metric for WISPA’s members.” The American Cable Association said if the FCC revises the form, “reporting broadband deployment information on a street segment basis adequately balances competing interests. It will significantly improve the information that the Commission collects today on a census block basis by providing more granular data.” USTelecom proposed carriers “confidentially provide to the FCC all known addresses that they have in their databases -- both current and previous customer addresses so that the Commission could then take this data and eliminate duplicates, build on what is provided with publicly available parcel data, crowdsourcing, or some other governmental or commercially available source that meets their requirements for usability.”

Council members in Maryland’s Montgomery County disagreed on the urgency of streamlining local processes to spur small-cell wireless infrastructure deployment, at a livestreamed Tuesday meeting. The council planned to vote on a zoning change meant to streamline processes for accepting small-cell applications but tabled the item after lengthy debate. The council had time only to vote 6-3 on an amendment stipulating more applications to go through a conditional-use process that requires public hearings rather than the quicker limited-use process provided for many such applications in the bill. It could bring the item back next week but faces an Oct. 31 deadline to pass bills; if it doesn’t come up before then, the proposal would have to wait until a new council convenes in December, a council spokesperson said. County staff said County Executive Ike Leggett opposed the amendment because it could prohibit some service, contrary to federal law. A conditional-use process costs $16,000, but the FCC recently required a $100 maximum application fee per facility, noted Jeffrey Zyontz, the county's senior legislative analyst. Council President Hans Riemer (D) voted against the amendment and said he supported the original proposal. "We can't stop the world from turning. 5G is coming." Since the federal government pre-empts the county from prohibiting service, there’s no good reason to require an expensive process that pretends citizens have the right to reject deployment in their neighborhoods, he said. All the county can do is establish “clear, simple rules” for small cells, he said. The argument didn’t convince most council members. Council member Roger Berliner (D) said he doesn't get why requiring conditional use would be unlawful. “Citizens have rights” and should have a voice even if it doesn’t come cheap or change the outcome, he said. Council member Tom Hucker (D), who proposed the amendment, said the proposed zoning change wasn't a question of the county having a “future or no future.” No other Maryland localities are considering a similar change, the Maryland legislature can’t pass a bill until February at earliest, and the issue is probably too controversial to pass a state bill that soon, he said. The county is effectively asking for a state small-cells law if it can't pass a local law, observed Council Member George Leventhal (D).

Verizon’s fixed 5G offering is a success, Chief Financial Officer Matt Ellis said Tuesday on an earnings call he billed as the first such in this fifth-generation era. The pilot went live Oct. 1 in parts of Houston, Indianapolis, Los Angeles and Sacramento (see 1810010028). “We've seen performance as we've expected since we started doing … installs,” Ellis said. “The technology works, our customers are getting the experience they expected and we are getting a lot of good learning which will benefit us next year when we rollout the product to that much larger audience.” Ellis said Verizon is well positioned. “True 5G requires an ultra-wideband solution, utilizing millimeter-wave spectrum to address the full array of use cases that 5G enables," as well as deep fiber, lots of small cells, the right spectrum holdings and “mobile edge computing capabilities," he said. "All of which we have been assembling for years.” Verizon is pushing gear-makers to move as quickly as possible on 5G, Ellis said: “We will be ready to deploy both on the network side and the customer side when the equipment is ready.” Ellis said the carrier appreciates FCC work to speed up siting of wireless infrastructure. “Our teams have been engaged with municipalities across the country on getting permits to put up small cells whether for 4G or 5G,” he said. “We are going as fast as we can. And while the federal level rules are helpful, [siting] is still a very local activity municipality-by-municipality.” Verizon reported net income of $5 billion in Q3, compared with $3.7 billion the same period last year, on revenue of $32.6 billion. Verizon had 515,000 retail postpaid net adds, including 510,000 postpaid smartphone adds. “Verizon estimates the market opportunity for 5G Home is about 30 million homes nationwide as the operator expands the availability of the services over the next several years, likely targeting markets where it has the most opportunity to poach subscribers seeking an alternative to limited and/or relatively expensive available broadband options,” said Technology Business Research.

Judges rejected a Sandwich Isles Communications challenge to an FCC order cutting staff-approved access-charge cost recovery for a Hawaiian Island undersea cable. "The Commission found that the equitable considerations relied upon by the Wireline Bureau’s decision no longer justified recovery of 50 percent of the Paniolo cable costs -- the projected growth never materialized," said the unsigned memorandum and judgment Tuesday of Judges Patricia Millett, Gregory Katsas and Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit in Sandwich Isles v. FCC, No. 17-1036. "The Commission allowed Sandwich Isles to keep the sums it had received in the past. Prospectively, the Commission found that ... Sandwich Isles could only recover $1.9 million annually from the [National Exchange Carrier] Association’s pool." The judges rejected Sandwich Isles arguments. To the extent it "questions the Commission’s 'used and useful' standard, which is used to determine whether a regulated company’s expenses are justified, its argument can be quickly disposed of. Sandwich Isles is attacking a standard regulatory agencies have been using for decades," the panel said. It said Sandwich Isles' primary argument was against the appropriateness of FCC reversal of bureau funding. "Sandwich Isles regards the Commission’s actions as analogous to the Commission reversing its own position without any supporting reasoning. That simply misunderstands administrative law," the panel said. "The Commission is not bound by the decisions of a subordinate body." Plus, the FCC "reasonably explained its decision," the panel said. At oral argument, the judges questioned some Sandwich Isles assertions (see 1809240031). "To be sure, it is quite troubling, as Petitioner contends, that the Commission sat on its appeal, as well as AT&T’s, for six years," the panel said. "But Petitioner was not injured by the delay -- American ratepayers were. Indeed, since the Commission allowed Petitioner to keep the expenses authorized by the Wireline Bureau through 2016, it actually benefitted by the delay. In another situation such a delay might be intolerable but certainly not in this case." A Sandwich Isles representative didn't comment.

Incompas and Sprint asked a court to deny an FCC motion to stay the mandate of the court's partial reversal of a commission order largely deregulating price-cap incumbent telco business data services (see 1810100054). Intervenors USTelecom, AT&T and CenturyLink supported the motion. The commission "fails to articulate any standard for the stay that it seeks," said Incompas/Sprint opposition Monday to the 8th U.S. Circuit Court of Appeals in Citizens Telecommunications v. FCC, No. 17-2296. "It likewise fails to identify any timeframe for the stay requested, stating only that the Commission 'proposes to file status updates every 90 days to apprise the Court of developments in the agency’s rulemaking.'" The FCC said an indefinite stay is justified because "the agency is diligently working to address this Court's remand, and there is every reason to believe [it will] proceed efficiently to adopt a new TDM transport rule," the opposition noted. But that isn't the Supreme Court's standard, which requires "extraordinary circumstances" or, when a cert petition is pending, "good cause," Incompas and Sprint said. The ILECs, noting the new rules took effect in August 2017, said a "stay is necessary to prevent pointless and costly industry disruption as the FCC moves forward expeditiously ... to re-adopt on remand the same transport rule in effect." If the court issues the mandate "vacating the 2017 transport rule before the remand proceedings are complete," carriers must "file thousands of pages of new federal tariffs," the intervenors said. "Carriers would also have to puzzle through how to apply the resulting regime, a bizarre regulatory hybrid with conflicting geographic units and jumbled service baskets, in which transport is subject to legacy pre-2017 regulations while interrelated, non-transport data services are subject to the new, lighter-touch regime that this Court has upheld."