Correction: Counselor to FCC Chairman Tom Wheeler Gigi Sohn was responding to a fellow panelist's comment when she addressed divisiveness at the FCC, which she said used to occur between members of the same political party (see 1511120043).

The FCC's February decision to reclassify broadband as a common carrier service was purely political and ignored how well the Internet has done under light-handed regulation, FCC Commissioner Ajit Pai said Thursday in a speech to the Bill of Rights Institute’s Kansas Public Lecture in Wichita. ISPs are already spending billions of dollars less on their networks due to the new rules, he said in his remarks posted by the FCC Friday. The dynamic of what the FCC did can be simply stated, Pai said. “It means regulating broadband like the Ma Bell telephone monopoly of the 20th century or the railroads of the 19th century,” he said. “It means subjecting Internet service providers to pervasive public-utility regulation. It means putting the federal government at the center of the digital world.” The FCC’s moves on net neutrality are part of a broader administration agenda, Pai said. “It was about government control,” he said. Most people would celebrate a free-market approach to the Internet, he said. “But some disagree. They disdain a free-market approach to the Internet because they believe that every major sector of our economy should be subject to extensive government regulation. And in particular, they believe that the Internet is too big and too important not to be subject to government control.” Pai said when the FCC imposes rules on ISPs, it risks stifling investment in networks. “Broadband networks don’t have to be built,” he said. “Capital doesn’t have to be invested. Risks don’t have to be taken.” The evidence already shows lower investment, he said. “During the first six months of 2015, there was an 8 percent decrease in major U.S. broadband providers’ capital expenditures,” he said. “And numerous smaller broadband providers told the FCC earlier this year under penalty of perjury that the agency’s regulations were leading them to cut back on infrastructure investment and broadband deployment.” The rules can still reversed by a later FCC, Pai assured the audience. “I am still optimistic that these regulations’ days are numbered,” he said. “The longer that these rules are in effect, the clearer it will become that these regulations are harming competition and consumers.” Pai said his parents, who live in a small town in Kansas, have a “healthy skepticism of government.” He joked that when he got the call to be a commissioner three years ago his mother had questions. “Was being an FCC Commissioner a full-time job? Did it pay? If it didn’t work out, could I go back to being a partner at my law firm?” he said. “Thankfully, after more than three years as a commissioner, my mother is confident I won’t be moving back into my old room.”

The FCC delayed the short-form application window for the incentive auction, giving prospective auction participants extra time to sign up, said a public notice released Thursday. The window for filing a reverse auction application -- Form 177 -- will now open at noon EST Dec. 8, and close at 6 p.m. EST Jan. 12. The window for Form 175, the forward auction application, is from noon EST Jan. 26 to 6 p.m. EST Feb. 9. The reason for the extension is the release of revised opening bid numbers, the PN said. Though the FCC released opening bids for all broadcasters a few weeks ago (see 1510160065), those numbers have had to be recalculated, the PN said. Since the auction order requires broadcasters to have 60 days notice of their opening bids before the deadline for participating, the window had to be moved when those prices changed, the PN said. The revised price numbers “correct a handful of files” for accuracy, the PN said. “For 99 percent of stations, the change to the opening bid prices using the corrected data is minimal -- less than one percent.” One station, WNJU Linden, New Jersey, had its information changed because it changed locations to One World Trade Center in New York, making it the highest-priced station in the auction, displacing WCBS in that role. WCBS' opening price in the auction dropped from $900,000,000 to $888,687,000 as a result of the change, according to the PN. The changed application date won't cause other delays in the auction, an FCC official told us. The changed window doesn't affect other auction processes, and the original auction schedule was created with enough cushion to allow for such adjustments, an FCC official told us.

The FCC Wireline Bureau released broadband deployment data collected from both fixed and mobile providers on Form 477. This is the first time the commission has released the Form 477 data, which covers deployment as of Dec. 31, said a public notice in Thursday's Daily Digest. NTIA has collected and made available broadband deployment data.

Speakers mostly debated the historical backdrop of communications law at a panel hosted by The Federalist Society Thursday on broadband regulation and the net neutrality litigation. Gibson Dunn attorney Miguel Estrada -- who represents NCTA, which is challenging the FCC's net neutrality order -- said the Supreme Court's 2005 Brand X ruling, which upheld the FCC's discretion to classify cable modem service as a Title I information service, focused on “last mile” broadband. But he said the current FCC's 2015 classification of broadband Internet access service as a Title II telecom service could have regulatory implications for the “entire Internet.” Essentially, the FCC was regulating the Internet under “public utility-style” common carrier regulation from the 1934 Communications Act's Title II, which was derived from “19th century” railroad regulation, he said. AT&T Senior Vice President Bob Quinn said congressional intent in the 1996 Telecom Act clearly was that Internet access was an information service. He said all nine justices in the Brand X cable broadband ruling agreed that was the case, but three dissenting justices, led by Antonin Scalia, believed there was also a telecom service that had to be offered separately from the integrated cable broadband information service. Eckert Seamans attorney Earl Comstock, who worked on the 1996 Telecom Act as a Senate staffer, said broadband industry providers were pushing a “tremendous mythology” that deviated from the Telecom Act definitions, which he said didn't make telecom and information services mutually exclusive. The FCC's broadband classifications as an information service in the early 2000s turned its 1980 “Computer II” decision on its head by finding Internet access was not common carriage, a shift that “crushed” the plethora of non-facilities-based ISPs that had existed to that point, said Comstock. He represents Full Service Network, which argues that broadband access is a telecom service and that the FCC shouldn't have given broadband providers so much forbearance relief. Roslyn Layton, a visiting fellow at the American Enterprise Institute, disputed the FCC's finding that net neutrality protections were needed to preserve a virtuous cycle of broadband Internet growth and innovation. Estrada said he didn't believe the discretion the Supreme Court showed the previous FCC in Brand X helped the current FCC's case much. Quinn said the 2005 case was different because the question then was whether there were two distinct cable broadband services: an information service and a telecom service.

The FCC should impose conditions on the Charter/Time Warner Cable and Bright House Networks deal “to protect against competitive harm,” said USTelecom in comments filed with the FCC and in a statement from USTelecom President Walter McCormick. Since cable companies don’t face the same regulatory constraints as telephone companies do, USTelecom’s member companies are concerned that the deal will concentrate too much control over video programming in the hands of a consolidated cable industry, McCormick said. “Outdated regulations direct telephone company resources and investments away from new broadband services and infrastructure, and into outmoded legacy networks and services, thus inhibiting the ability of these companies to compete,” he said. The FCC should “level the playing field” and “impose conditions that would prohibit the merged entity from giving undue preferences to other cable companies, or to disadvantage competing broadband and video providers,” USTelecom said.

Correction: What Covington & Burling attorney Monika Kuschewsky said on safe harbor was that European Commission guidance doesn't prevent national data protection authorities from acting during a grace period (see 1511060016).

USTelecom and ITTA asked the FCC to further extend the special-access comment period due to various complexities in the proceeding examining ILEC rates for dedicated circuits, particularly regarding sensitive industry data submitted on the business service market. “The commission’s data collection effort is a unique and massive undertaking. Providing three months to properly analyze and understand the data is consistent with the fact-based approach the commission has taken. The potential value of this information should not be squandered by a rushed analysis,” said USTelecom Senior Vice President Jon Banks in a Tuesday blog post. Although the Wireline Bureau "recently extended the comment schedule -- with comments now due January 6, 2016, and reply comments due February 5, 2016 -- the current schedule does not provide the opportunity for the careful and searching analysis that this proceeding requires," the telco groups said in a filing Tuesday in docket 05-25: "As clearly and carefully detailed [in an declaration submitted by an industry expert], the current data set is not yet stable, and the necessary tools to fully analyze the data are not in place. Given the enormity of the data set, the complexity of the industry and the importance of it to our economy, once the data are stable and the necessary software and tools are available, twelve weeks will be necessary to provide the meaningful opportunity to analyze the data and prepare comments required by the Administrative Procedures Act. ... Specifically, we request that the Commission extend the due date for opening comments until at least twelve weeks after two criteria have been satisfied: (1) the Commission issues a Public Notice confirming that the data set has been finalized and a change control process has been instituted for any further modifications (including explanations for all future changes); and (2) all software and tools necessary to conduct relevant data analysis have been made available by NORC [National Opinion Research Center, a University of Chicago institution]." ILEC representatives recently raised concerns about data's reliability (see 1511050053).

The FCC shouldn't delay the incentive auction, former Expanding Opportunities for Broadcasters Coalition Executive Director Preston Padden said in a post on his blog Friday. “Hundreds of TV Stations owners are far down the road of preparing for the FCC’s Incentive Auction.” The time to consider delay has passed, Padden said. Padden told us the blog post is a response to a speech by Commissioner Ajit Pai Thursday (see 1511050033) stating that the commission could delay the auction if it's necessary to ensure that the auction software is prepared. “March 29 wasn’t etched onto a tablet, Biblical or electronic,” Pai said. “If we are not 100% confident that the software will perform flawlessly as we make our way to the end of March, we must have the courage to postpone the auction rather than charging ahead and courting disaster.” The commission should “double-check and triple-check” the auction software, Pai said. “Chairman [Tom] Wheeler himself acknowledged in December 2013 that we want to avoid a software debacle of the kind the country witnessed during Obamacare’s rollout.” Pai also said the FCC should hold three mock auctions well before the incentive auction, as suggested by CTIA.

AT&T updated a blog post in response to the concerns of Gigi Sohn, counselor to FCC Chairman Tom Wheeler. In the original blog Tuesday (see 1511030066), which suggested the commission’s special-access tariff investigation and broader rulemaking could undermine broadband investment, AT&T Senior Vice President Bob Quinn took note of Sohn's reported comments “at a recent CLEC gathering exhorting the crowd to apply ‘the same kind of consumer activism that helped drive the Open Internet rule changes earlier this year -- including pickets at [Chairman] Wheeler’s home and the White House.’” In the updated blog Wednesday, Quinn said Sohn objected to the use of the word “exhort” in characterizing her comment at an Incompas conference. “Out of respect to Ms. Sohn’s concerns, we removed the word ‘exhort’ from the blog," Quinn said. "It doesn’t change any of the analysis, however. We’re still not rocket scientists, and we still see where this is headed. And it’s not good for private investment.” Sohn had no comment Thursday. Her Incompas comments addressed Wheeler’s overall agenda to promote competition (see 1510200052).