Satellite carriers and government regulators should protect broadcast services’ access to the upper part of the C-Band, said the World Broadcasting Unions’ position, approved by the WBU’s secretaries and directors general. “The potential allocation of C-Band FSS [fixed satellite services] spectrum to Mobile Services will create chaos to the economics of broadcasting by satellite, potentially interrupting services to audiences around the world,” the WBU said in the paper posted Wednesday. “C-Band is critical for satellite services in tropical regions as it suffers less from the attenuation effects of heavy rainfall than higher frequency bands.” WBU members experienced “serious interference” where this spectrum was opened up to other users, the paper said. The availability of the C-Band should be protected “where the band has been allocated to satellite services and is currently used to provide many broadcasting services,” WBU said.

Top U.S. priorities at the ITU plenipotentiary meeting this fall in Dubai include improved ITU transparency and management, and avoiding a global regulatory framework for emerging technologies like artificial intelligence and IoT, said FCC International Bureau Multilateral and Regional Affairs Branch Chief Kelly O’Keefe at an FCBA event Wednesday. Roxanne McElvane Webber, bureau deputy chief-global strategy and negotiation division, said the U.S. has waged "a big campaign [with] big people behind it" for Doreen Bogdan-Martin, chief of ITU’s Strategic Planning and Membership Department, to be elected ITU telecommunication development sector secretary. FCC Chairman Ajit Pai and NTIA Administrator David Redl have endorsed her (see 1803130029). McElvane Webber said broadband investment globally outside the U.S. is principally mobile, with "a very, very pronounced disparity" by gender in uptake. She said the division wants and is trying to promote more formal talks with industry about what companies are finding in different countries and international regions. O'Keefe said that, like the U.S., numerous countries are trying to extend broadband networks to remote and rural areas, though methods of doing so vary. She said other countries also are following how the U.S. approaches 5G deployment issues such as spectrum availability and infrastructure. She said the division also fields a lot of questions from other countries about over-the-top regulation, though the FCC doesn't do that.

VoIP and text messaging should be classified as "interstate, information services, freeing them from unnecessary federal and state requirements," FCC Commissioner Mike O'Rielly told the Cloud Communications Alliance Tuesday night, according to remarks posted Wednesday. "Both services are extremely popular with consumers and businesses, and there is abundant competition both from legacy providers and new over-the-top players to meet the market’s needs. Nonetheless, both services continue to be the target of what I’ve called regulation by analogy." FCC failure to classify VoIP as an information service while subjecting it to some telecom regulation "only served to encourage mission creep by prior Commissions and regulatory ambitious states," some of which are trying to regulate VoIP, he said. A Minnesota case "is being litigated in the courts, and I appreciate that the Chairman and Office of General Counsel were willing to work with me on an amicus filing explaining the legal and practical problems with Minnesota’s approach," he said, lamenting that the agency "must divert staff resources to stamp out efforts that are contrary to the law and common sense." Charter Communications is squaring off with the Minnesota regulator (see 1806120026). O'Rielly said more deregulatory efforts are needed, including in a biennial review of telecom rules to be launched later this year. He said there are areas where the FCC needs to be proactive, including freeing up spectrum for commercial use in high-band and mid-band frequencies. "My focus has not only been on concluding the so-called Citizens Band Radio Service at 3.5 GHz, but also reallocating the C-Band spectrum for additional wireless uses," he said. "This will provide large slices of spectrum for licensed services at 3.7 to 4.2 GHz, while permitting us to allow unlicensed services at 6 GHz. After some initial resistance internally and externally, it is great to see everyone come around to this line of thinking."

Supreme Court Justice Anthony Kennedy's effective retirement could alter court leanings, given his frequent swing votes, but the impact on communications law is unclear, attorneys told us Wednesday. The court said Kennedy will shift from active to senior status July 31. "This is a momentous development for the nation, but I don't think this has significance for communications law in the near term," emailed Andrew Schwartzman, senior counselor at Georgetown Law’s Institute for Public Representation. Others called Kennedy a strong defender of free speech rights and noted he authored indecency and other media rulings. Citing recent 5-4 decisions and new Justice Neil Gorsuch, National Religious Broadcasters CEO Jerry Johnson urged President Donald Trump to once again nominate "a Constitution-honoring individual in the mold of" late Justice Antonin Scalia. Sen. Shelley Moore Capito, R-W.Va., also sought a nominee similar to Gorsuch. But Dianne Feinstein, D-Calif., Senate Judiciary Committee ranking member, called Kennedy a "pivotal and important" justice, and said no consideration of a replacement should be considered until after the November election. Sen. Patrick Leahy, D-Vt., respected Kennedy's "independence," even when they disagreed, and urged Trump to "abandon his 'short-list' of far-right" nominees. Among those issuing statements commending Kennedy were Senate Judiciary Chairman Charles Grassley, R-Iowa (here); Sen. Orrin Hatch, R-Utah, a former Judiciary chairman (here); Sen. Rob Portman, R-Ohio (here); and House Judiciary Committee Chairman Bob Goodlatte, R-Va. (here).

The FCC and staffer Sharon Stewart continue discussions with a mediator about settling her hostile work environment lawsuit (see 1803260002), the sides said Monday in a U.S. District Court in Washington docket 15-cv-0057-CKK status report (in Pacer).

Charter Communications should cease and desist saying it complied with -- and exceeded -- New York state obligations to expand its broadband network, agency officials said Tuesday. “These misrepresentations, coupled with Spectrum's overall pattern of unacceptable conduct in New York, call into question the continued viability of Spectrum as a regulated telephone/cable company in this State,” said New York Public Service Commission General Counsel Paul Agresta in a letter to CEO Thomas Rutledge. Spectrum is a Charter brand name. The Department of Public Service referred the matter to the New York attorney general and the SEC, Agresta said. The agency seeks a log of “all such advertising in advance of potential direct enforcement action for penalties” by the New York Public Service Commission, he said. “Preserve all documents, including email, text messages, voice mail, recordings, and other documentation relating to the aforementioned matters.” Charter never told customers about missing a December buildout target that was a New York condition of the carrier's Time Warner Cable acquisition, but instead “continues to assert in advertisements and publications that it has complied with -- and even exceeded -- its commitments to New York,” Agresta said. “Those representations are demonstrably and materially false.” The PSC earlier fined the MVPD $2 million over the charge that it missed the buildout target (see 1806140063). It’s not the first time New York claimed the company misled consumers, added Agresta, referring to the state AG’s lawsuit about the company’s advertised internet speeds that last week got court OK to continue (see 1806210060). “The situation regarding Charter/Spectrum is getting more serious with each passing day,” said PSC Chair John Rhodes, agreeing the company is misleading consumers. The operator “built out our broadband network to more than 42,000 unserved or underserved homes since the merger,” a spokesperson responded. “We find it baffling that the PSC thinks that some New Yorkers count and others don’t, given their belief that access to broadband is essential for economic development and social equity.” New York is unlikely “to do anything drastic,” cable consultant Steve Effros emailed Tuesday. “The regulators, after all, have made strong accusations against most operators in the State at one time or another. This reflects either unreasonable expectations or a regrettable form of negotiating leverage.” Effros doubts New York could find another company to replace Charter that could better meet the state’s timing demands.

The FCC granted 12 of 14 waiver petitions in the Connect America Fund Phase II auction of subsidies for fixed broadband and voice services, though some didn't qualify to bid. Meanwhile, Comcast and MediaCom told us they didn't apply to bid in the auction starting July 24. The Wireline and Wireless bureaus granted 10 of 11 applicant waiver petitions asking regulators to accept late-filed Form 477 submissions as evidence of their voice and/or broadband service experience but denied Net Vision Communications' request because it didn't file a 477 for a relevant period, said an order in docket 17-182 and Tuesday's Daily Digest. The bureaus noted the waivers didn't necessarily mean applicants were qualified to bid, as applications were judged in totality; a public notice Monday announced 220 applications were accepted and 57 denied (see 1806250051). Waiver grantees qualified to bid were Workable Programs and Systems, Hankins Information Technology, Red Spectrum Communications, 360 Communications, Pueblo of Laguna Utility Authority and Northern Arapaho Tribal Industries. Not qualified were Redzone Wireless, Emerald Cable, Good Connections and Skyrunner. The bureaus denied Sonus Technologies' request to waive a requirement that applicants with fewer than two years of experience submit three years of audited financial statements. In another order, the bureaus granted waivers to Horizon Telcom and Hawaiian Telcom to amend applications to reflect pending ownership changes, conditioned on deal consummation. The FCC May 29 approved transfers from Horizon Telecom and two subsidiaries to Horizon Acquisition Parent; June 19, it approved transfers of control from Hawaiian Telcom to Cincinnati Bell. Both applicants were qualified to bid.

The Broadband Access Coalition plan for the 3.7-4.2 GHz C-band doesn’t qualify for the expedited review reserved for “innovative” new technologies and services under Section 7 of the Communications Act, the FCC Wireless Bureau and Office of Engineering and Technology wrote BAC. We “do not believe that its proposal for use of the 3.7-4.2 GHz band-i.e. authorizing point-to-multipoint services to share use of the band with fixed services (fixed satellite service and fixed service) through the Commission's Part 101 frequency coordination procedures -- qualifies as a ‘new’ technology or service," the letter said. “Point-to-multipoint services, which are deployed in numerous spectrum bands, are not new, and the Part 101 coordination procedures are frequently used when sharing of spectrum among fixed services.” But, the FCC said, the proposal is being considered as part of a broader look at mid-band spectrum. Commissioners are expected to vote on a C-band NPRM July 12 (see 1806260027). Consistent with Section 7, “we plan to take action in the near-term to promote more flexible use of the 3.7-4.2 GHz band that would serve the public interest,” the FCC said. OET Chief Julius Knapp signed the letter. FCC Chairman Ajit Pai pledged the agency will follow Section 7. The agency sought comment in February on formal rules (see 1802220045). BAC filed its plan last summer (see 1708100037).

Some experts and advocacy groups criticized the Supreme Court's 5-4 Ohio v. American Express issued Monday as having significant implications for tech firms in two-sided markets. The dissent by Justice Stephen Breyer raised the idea of the opinion treating internet retailers differently from other businesses in antitrust evaluations. It's "an enormous setback for consumers who rely upon the antitrust laws to promote market competition," Public Knowledge said, "a particularly dangerous setback that will open the door for communications and internet platforms to continue building dominant market positions virtually impenetrable to innovation from smaller competitors." The decision was "a HUGE victory for platform providers who can now escape antitrust liability" by claiming -- and not proving -- even a fraction of overages on one side of the two-sided market went to customers on the other side, tweeted economist Hal Singer. Open Markets Institute called the decision "a huge and intellectually unjustifiable obstacle to effective antitrust enforcement." OMI said special treatment of two-sided markets "greatly rais[es] the burden that plaintiffs must carry at the very earliest stages of litigation" and gives more power to monopolies. OMI said it argued in its amicus brief that federal law traditionally looked at both credit card companies and communications firms as intermediaries, but the decision makes tech platforms into "de facto regulators of these markets." OMI said DOJ and the FTC should "use their full legal authorities" to "limit the damage from this poorly reasoned decision" and Congress should "take immediate action." Others defended the decision. The court was "exactly right" when it said plaintiffs didn't meet the burden of proof when they focused on the fees paid by merchants, tweeted International Center for Law & Economics Executive Director Geoffrey Manne. "Gov’t can’t meet its burden by showing 'some' effect on 'some part' of the market. Output didn’t go down and price didn’t go up. If it were pointing to a real effect, they would have." The U.S. and states sued AmEx for contractual provisions with merchants stopping them from steering consumers from using their credit cards in favor of another that charges lower merchant fees. Justice Clarence Thomas wrote the majority opinion holding anti-steering provisions don't violate the Sherman Act.

The FCC issued an order raising by 43 percent a USF Rural Health Care Program cap to $571 million to account for 20 years of inflation and address a funding shortfall in the face of rising demand. With the unanimous order released Monday in docket 17-310, "the FCC takes swift and long-overdue action to address this critical funding crisis," said Chairman Ajit Pai. He and Commissioner Brendan Carr said other steps would provide longer-term certainty. The agency ordered the budget cap be adjusted annually for inflation, with a process to carry forward unused funds from past funding years for future use. The order is "a first step in a much-needed process to revamp the program to ensure that it is operated in a predictable, sustainable, and accountable manner," said Commissioner Mike O'Rielly, who said "there is much more to do." He also said the order "highlights the need for an overall cap" on USF. He said the FCC should work with other agencies "to determine how our rather narrow telemedicine program works within the larger health care system." He said the FCC doesn't get credit for RHC Program benefits to other agencies. Commissioner Jessica Rosenworcel said: "While injecting more funding into the program is the right call, we need to acknowledge our actions here are no more than a short-term band-aid. If we want this program to truly thrive, it is going to require more long-term care and attention." Pai's draft order (see 1806060057) received votes of all colleagues recently (see 1806140017 and 1806190063).