The North Carolina Broadcasters Association met FCC staff about the hurricane response Friday, according to tweets from FCC Chairman Ajit Pai and aide Zenji Nakazawa. “Broadcasters in N.C. are stepping up,” said Nakazawa. Friday’s FCC disaster information reporting system report showed improvement in the number of cable and wireline subscribers out of service in North Carolina, with 176,388 out, compared to 270,688 Thursday (see 1809200058). Out-of-service cellsites in North Carolina went to 2.1 percent from 3.7 percent, and all public safety answering points are operational. Two North Carolina TV stations are off-air, along with 20 FM and two AM stations. The deadline for regulatory fees was extended two days for entities in areas affected by Florence, said an Office of the Managing Director public notice Friday. Fees are now due Thursday for companies in affected counties in North Carolina, South Carolina, Georgia and Virginia, the PN said, listing the counties. All other regulatory fee payers still have their fees due on Tuesday, the original date.

A federal court gave broad meaning to "automatic telephone dialing systems" covered by Telephone Consumer Protection Act robocalling restrictions. "The statutory definition of ATDS includes a device that stores telephone numbers to be called, whether or not those numbers have been generated by a random or sequential number generator," said the unanimous opinion Thursday of a three-judge panel of the 9th U.S. Circuit Court of Appeals, in Jordan Marks v. Crunch San Diego, No. 14-56834. It reversed a district court summary judgment in favor of Crunch Fitness. Marks claimed three text messages from Crunch violated the TCPA, but the lower court found the system used wasn't an ATDS. The 9th Circuit noted Congress left ATDS alone in revising the TCPA after an FCC 2015 ATDS decision: "Because we infer that Congress was aware of the existing definition of ATDS, its decision not to amend the statutory definition of ATDS to overrule the FCC’s interpretation suggests Congress gave the interpretation its tacit approval." Since the 1991 TCPA, "no Court or FCC ruling has so expansively defined an [ATDS] as the Ninth Circuit has," emailed Scott Goldsmith of Dorsey & Whitney, who wasn't involved in the case: "By defining an ATDS as equipment that simply has 'the capacity to dial stored numbers automatically, the Ninth Circuit may have just rendered every smart phone user a potential TCPA violator. The ruling may be short-lived, however, as the FCC is poised to issue its new TCPA ruling" (see 1809190036). He said the D.C. Circuit, when it overturned the 2015 definitions (see 1803160053), "did so with the concern that the FCC’s interpretation could render every day smart phones an ATDS subject to the TCPA. Ironically, the Ninth Circuit’s ruling in Marks appears to do just that." It's likely Crunch will seek Supreme Court review of the ruling, which "conflicts" with a 3rd Circuit June ruling on autodialer functionality in Dominguez v. Yahoo, Goldsmith told us Friday. Crunch didn't comment. The National Consumer Law Center believes the ATDS definition should be broad (see 1809200059) but contain a carve-out for "ordinary use of a smart phone," emailed Senior Counsel Margot Saunders, noting the D.C. Circuit "recommended that the FCC use its exemption authority to deal with that issue."

Federal Emergency Management Agency officials expect the same kinds of problems to be uncovered during the first national test of the wireless emergency alert system as during a Washington-area test in April, they told reporters Friday. Preliminary results likely won’t be released immediately, an FCC official said. The test was delayed until Oct. 3 because of Hurricane Florence (see 1809170035). The April test saw many subscribers not getting the alerts (see 1804050053). Industry observers expect similar glitches Oct. 3. “The test will assess the operation readiness of the infrastructure,” a FEMA official said: “We expect there to be fairly similar results” to the April test. Government officials spoke on a conference call with reporters on the condition they not be identified. “Almost all [wireless] phones across the country” will receive the warnings, “but we know there are some anomalies in the network,” a FEMA official said. More than 70 percent of the cellphones will likely “receive and display” the message, the official said. The FCC will work closely with FEMA and industry to assess the test, a commission official said. FEMA officials noted 2016's Integrated Public Alert and Warning System Modernization Act requires the system be tested every three years. WEAs can warn of severe weather, active shooters and Amber alerts. WEAs fall into three categories -- warnings of imminent threats from severe weather to active shooters, amber alerts for missing children and the presidential-level alert, a FEMA official said. The national presidential-level alerts are only issued during extreme emergencies, such as a declaration of war or if there were coordinated terrorist attacks in major cities, the FEMA official said. Those concerned about the test continue tweeting, now using a new hashtag: #GoDark103. “What are you solving by participating in #GoDark920 or #GoDark103?” @realchrishanken tweeted Friday. “You don’t like Trump. I get it. I don’t like him either. But these presidential alerts have been around for longer.”

Turning over nondisclosure agreements signed by FCC commissioners or other staff would reveal staffers who now have or have had access to classified materials, which could subject them to harassment and unwanted attention, the agency said Wednesday, denying our Freedom of Information Act request. It said such a request fell under FOIA exemptions 6 and 7(E), covering personnel files that would constitute an invasion of personal privacy and records that would disclose techniques and procedures for law enforcement investigations, respectively. The agency provided a blank Standard Form 312, the federal government's classified information nondisclosure agreement.

New York Times Co. asked a court to order the FCC to release documents that "will shed light on the extent to which" Russian government agents and nationals "interfered" with the notice-and-comment process for the agency's 2017 decision to "abandon" net neutrality regulation. "Despite the clear public importance of the requested records, the FCC has thrown up a series of roadblocks, preventing The Times from obtaining the documents" under a Freedom of Information Act request, said a complaint Thursday in the U.S. District Court for the Southern District of New York in case No. 1:18-cv-08607. The Times said it repeatedly narrowed its FOIA request in the hopes of expediting release of the records. The FCC has responded "with protestations" it lacked "technical capacity," invoked "shifting rationales for rejecting" requests and misapplied a FOIA privacy exemption "to duck the agency's responsibility," the publisher said. The FCC is "disappointed that the New York Times has filed suit to collect the Commission’s internal web server logs, logs whose disclosure would put at jeopardy the Commission’s IT security practices for its Electronic Comment Filing System," emailed a spokesperson. "Just last week the U.S. District Court for the District of Columbia held that the FCC need not turn over these same web server logs under the Freedom of Information Act.”

Hurricane Florence is still affecting communications service in North Carolina, the only state for which the FCC’s disaster information reporting system is still active. Thursday’s report showed 270,688 cable and wireline subscribers out of service in the state, compared with 283,327 Wednesday (see 1809190048). Out-of-service cellsites in North Carolina went to 3.7 percent from 4.3 percent. Two public safety answering points in North Carolina still were rerouting 911 calls to other PSAPs. One TV station, Free Life Ministries’ WHFL-CD Goldsboro, remained out of service, along with 21 FM stations and two AM stations.

Pushback from some major cities against the draft order on next week's agenda on local and state regulatory authority over small-cell deployments (see 1809140012) is no surprise, since those markets will enjoy 5G rollout regardless of what potentially onerous regulatory burdens they enforce, said FCC Commissioner Brendan Carr at a Media Institute lunch Thursday. Earlier that day, he likewise defended the order at another event (see 1809200007). He told the luncheon that the support the FCC has gotten from smaller cities and rural areas for the draft order is more important than concerns. He said cutting regulatory burdens for deployment is expected to free up sizable economic resources that then change the business case for deploying in smaller communities. The draft order is patterned in many ways after laws in multiple states on small-cell deployment, with "reasonable" caps on fees and shot clocks for dealing with applications, he said. Asked about lack of a "deemed granted" provision in the draft order, he said that wasn't seen necessary because of the shot clock language. Carr sounded what have become familiar themes about the heated U.S.-China rivalry over leading in 5G deployment. The last such major tech inflection point was the move from 3G to 4G, and the U.S. global dominance then "transformed our economy," Carr said, saying China sees being first in 5G as "a chance to flip the script" and dominate tech space. He said, along with freeing up spectrum for 5G, the U.S. has an "infrastructure challenge."

An interview with Senate Commerce Committee member Catherine Cortez Masto, D-Nev., is the first of what will be a series of interviews with women involved in digital technology and media, FCC Commissioner Jessica Rosenworcel said Wednesday as she debuted her Broadband Conversations podcast. Rosenworcel said future episodes will feature guests including Black Girls Code founder Kimberly Bryant; San Jose, California, Chief Innovation Officer Shireen Santosham; and Massachusetts Attorney General Maura Healey.

The FCC Office of Engineering and Technology approved Nominet UK as a database system operator in the TV white spaces. Nominet’s system was subject to a 45-day public trial, OET said in a Wednesday order in docket 04-186. “It has satisfactorily addressed concerns received after this trial regarding the ability of its database system to exchange certain data with other database administrators, register information on fixed devices, and provide accurate channel availability information,” OET said.

The FCC Office of General Counsel rejected an appeal of its response to a Freedom of Information Act request for not citing any particular errors, according to a dismissal on delegated authority in Wednesday's Daily Digest. Ryan Shapiro, an attorney with transparency group Property of the People requested records of payments to or from “Trump-related Properties” and the FCC responded with unredacted records that consisted primarily of regulatory fees, the dismissal said. Shapiro appealed the response and questioned the adequacy of the search, but didn’t identify specific issues, the filing said: “You stated that you wished to continue with your appeal as it is [your] general practice to administratively appeal such matters for the sake of thoroughness. ... We conclude that you have not raised any material issues with the response to your FOIA request that would merit review by the Commission.” Property of the People didn’t comment.