FCC Chairman Ajit Pai announced a Rural Broadband Auctions Task Force to spearhead implementation of two planned reverse auctions of USF subsidies that were the subject of orders adopted Feb. 23 (see 1702230019 and 1702230042). The Connect America Fund Phase II (CAF II) auction will offer almost $2 billion in support for fixed broadband providers to connect customers, and the Mobility Fund II (MF-II) auction will offer $4.5 billion to expand 4G LTE mobile coverage -- both over 10 years -- said a commission release Monday. Pai named from within the agency Chelsea Fallon task force director, and Michael Janson and Kirk Burgee deputy directors. Thom Parisi will be chief of staff of the task force, which will draw on senior staffers from across the commission. The FCC is moving "aggressively to close the digital divide" and the task force "will help ensure that taxpayer funds are allocated efficiently for rural broadband deployment and that all Americans who want Internet access are able to get it," said Pai. Beginning the auctions "as soon as possible is a top priority," he added.

The FCC asked a court to remand Lifeline broadband provider (LBP) rules being challenged by state regulators. Chairman Ajit Pai said he "will soon commence a proceeding to eliminate the federal Lifeline Broadband Provider designation process at issue in these cases, recognizing that state governments, not the FCC, have primary responsibility for designating carriers that can participate in the Lifeline program," said the unopposed motion (in Pacer) Thursday in NARUC v. FCC, Nos. 16-1170, 16-1219. Pai announced Wednesday his plan to scrap the LBP process and said he didn't believe staff should approve pending applications (see 1703290025), sparking criticism and some support (see 1703290054).

Jurists asked questions skeptical of a challenge to a 2015 FCC order awarding AT&T $252,496 in damages to refund what it paid to three companies the agency in 2013 found to be "sham" CLECs engaged in "access stimulation" (often called "traffic pumping"). In oral argument Friday, three judges of the U.S. Court of Appeals for the District of Columbia Circuit repeatedly questioned and even disputed assertions of All American Telephone, e-Pinnacle and ChaseCom. Judges Thomas Griffith and Patricia Millett suggested some petitioner arguments were foreclosed because they hadn't challenged the 2013 liability order finding they didn't provide telecom service pursuant to a lawful tariff. All American counsel Jonathan Canis said the FCC found in that order his clients weren't common carriers but in the damages order was treating them like common carriers: "Our argument is you can't have it both ways." Judge David Tatel responded, "Let's assume we don't agree with you," but he then pursued petitioners' argument the FCC improperly decided their state claims against AT&T in the U.S. District Court for the Southern District of New York. A district court judge stayed that case in 2009 and referred various issues to the FCC. Tatel said he read the 2015 damages order as saying there was no evidence to support petitioners' view they provided telecom service, without pre-empting their state claim. But Tatel also told FCC attorney Grey Pash that paragraph 13 of the order could be read to decide the state issue and "does cloud the decision a little bit." It "would have been easier for us" if that paragraph hadn't been included, Tatel said. The case is All American Telephone Co. v. FCC, No. 15-1354.

USTelecom CEO Jonathan Spalter touted a "broadband first" agenda and bipartisan backing for including measures in infrastructure legislation to boost high-speed communications networks. He said any infrastructure bill must go beyond funding "asphalt and airports" because "the ones and zeros of broadband" are increasingly "essential" to connecting Americans. "We are going to be working very closely with the administration and with Congress to advance a national infrastructure plan that does prioritize broadband, that does allow the digital infrastructure of our nation to be more carefully coupled with our brick-and-mortar infrastructure," he said in an interview for C-SPAN's The Communicators being televised April 1 and April 3. He said there's "no daylight between Republicans and Democrats" on broadband's importance: "Those ones and zeros are not red and blue; they're red, white and blue." Spalter said USTelecom is focused on achieving provider "parity" and regulatory "clarity." Broadband providers invested more than $1 trillion over 20 years under "light-touch regulation" until the FCC in 2015 reclassified broadband under Communications Act Title II, an "artifact" of the 1930s with "regressive" rules, he said. “We support net neutrality. We understand that the ability to transact our online lives in an open and free environment is indispensable not only to our democracy but to the future of our economy, and to the health and safety and productivity and education, increasingly, of our families and communities." There should be "no throttling, no blocking -- we all agree on those types of principles," he said. "Where we disagree is how to get there." He predicted policymakers will move away from Title II regulation. He rejected the premise that competition is lacking: "The numbers really are off the chart: American consumers enjoy more broadband choice than any other consumer on the globe." He said next-generation networks will usher in innovations in "contextually aware environments, augmented reality, artificial intelligence, connected vehicles." Spalter called recent legislation to repeal FCC privacy rules a "win, win" for consumers that would lead to "harmonized" FCC and FTC protections for sensitive online data while allowing the benefits of innovation. He said a presidential executive order is expected soon to elaborate a clearer cybersecurity framework: "The threats are increasingly real." He said his association is working with other industry players and the Department of Homeland Security on an "action plan" to "ensure the integrity of our networks, their resiliency and security."

The 2005 Junk Fax Prevention Act doesn't authorize the FCC to require businesses have an opt-out notice on fax advertisements that were solicited by the receivers, so the 2006 solicited fax rule order is in violation of that, a U.S. Court of Appeals for the D.C. Circuit panel ruled Friday, with one judge dissenting. In the opinion, written by Judge Brett Kavanaugh, the court said the act requires an opt-out notice on unsolicited fax ads, but it doesn't do the same for solicited ones, with Congress clearly demarcating between the two. It said the FCC defense "has it backwards" in suggesting an agency can take an action as long as it's not prohibited by Congress: "Congress has not authorized the FCC to require opt-out notices on solicited fax advertisements. And that is all we need to know to resolve this case." The D.C. Circuit ruled the order vacated and remanded to the agency and dismissed petitions challenging FCC waivers given to fax ads sent before April 30, 2015, as moot. Raymond Randolph also joining in the majority decision. Numerous businesses challenged the rule (see 1408040030). In a dissent, Judge Cornelia Pillard said the FCC was reasonable in deciding opt-out notices are needed on all fax ads and that the court's opinion will put extra burdens on recipients trying to control their fax traffic, "precisely the sort of anti-consumer harm Congress intended to prevent." In a statement, Chairman Ajit Pai said the ruling "highlights the importance of the FCC adhering to the rule of law." He said he dissented from the 2014 order reaffirming the notice requirement (see 1410300047) "because, as I stated at the time, the agency’s approach to interpreting the law reflected ‘convoluted gymnastics.’ The court has now agreed that the FCC acted unlawfully. Going forward, the Commission will strive to follow the law and exercise only the authority that has been granted to us by Congress.” With the ruling, the D.C. Circuit "has shown that it is willing to take a hard look at the FCC’s [Telephone Consumer Protection Act] decisions, especially when they are difficult to square with the statute’s text or the practical realities that businesses face," said telecom lawyer Mark Brennan of Hogan Lovells, adding that there now will be increased attention on ACA v. FCC, "another TCPA case pending before the D.C. Circuit that involves the FCC’s interpretation of the term ‘automatic telephone dialing system’ and framework for calls to reassigned wireless numbers.” Friday's decision "reconfirms the proper and appropriate reading of the law," Commissioner Mike O'Rielly said in a statement. "It also signals that the court is willing to call the Commission to task for inappropriately creating authority not provided by Congress. I can only hope this view will be applied elsewhere, such as in the court's other case involving TCPA overreach.”

Comcast and Charter Communications joining the CBRS Alliance will help create interest among major handset vendors for supporting the 3.5 GHz band, with end-user device availability being one of the issues that will dictate when the band is used commercially for mobile, said CableLabs Vice President-Core Innovations Pete Smyth in a blog post Thursday. He said commercial rollout also will be dictated by the availability of spectrum access systems (SAS), environmental sensing capacity (ESC) and commercial grade network equipment. AT&T, Verizon, Sprint and T-Mobile are looking at LTE deployment in the Citizens Broadband Radio Service band, he said. With Samsung's upcoming Galaxy 8 supposedly supporting band 42 and Sony announcing support of band 42 in an upcoming handset, "all of this bodes well for 2018," CableLabs said. It said SASs and ESCs are expected to be operational by year's end, which points to full spectrum availability next year.

Higher education and library groups asked the FCC to adhere to net neutrality principles in reviewing its 2015 open internet and broadband reclassification, to protect free speech and promote educational achievement and economic growth. "The proposed principles call upon the FCC to ban blocking, degradation, and 'paid prioritization'; ensure that the same rules apply to fixed and mobile broadband providers; promote greater transparency of broadband services; and prevent providers from treating similar customers in significantly different ways," said a news release Thursday on a letter sent to Chairman Ajit Pai. The groups sent a similar letter to House and Senate commerce committee chairmen and ranking members (release and letters here). Endorsing the principles were: the American Association of Community Colleges, American Association of State Colleges and Universities, American Council on Education, American Library Association, Association of College & Research Libraries, Association of Public and Land-grant Universities, Association of Research Libraries, Chief Officers of State Library Agencies, Educause, Modern Language Association and Sacramento Public Library.

Commissioner Mignon Clyburn lauded an FCC broadband health mapping platform as "a monumental step" that's building knowledge and awareness about the importance of advanced health services. Calling it "simply unacceptable" that 34 million Americans lack access to 25 Mbps connectivity and others can't afford it, she said the initiative is helping identify areas with "critical need" for broadband health solutions. "It is designed to assist those committed to closing infrastructure gaps, to ensure that everyone has access to the technology necessary, and enable quick and top-rated health care assistance," she said, according to prepared remarks Thursday at a state telehealth summit in Columbia, South Carolina: The interactive tool "will enable those in both the public and private sectors to access and analyze statistics about broadband connectivity, as well as health and other indexes on a national, state, and county level." Clyburn said the tool overlays broadband data with key health information down to the county level. "Using this data, the FCC also has been able to identify, what we call the 100 'critical need' counties, meaning those communities with limited broadband access and very high health needs," she said, noting the initiative was launched by a Connect2Health task force in August (see 1608020017). She said requests for the USF Healthcare Connect Fund, which has an annual budget of $400 million, "reached a historic high of nearly $378 million" in funding year 2015, the most recent available.

The FCC TV incentive auction drew to a close Thursday, as expected (see 1703270062). A statement on the incentive auction dashboard said: “Bidding in the incentive auction concluded.” The FCC soon will provide information on winners, said Gary Epstein, chairman of the Incentive Auction Task Force. “Today’s conclusion of the assignment phase formally brings all bidding activity in this multi-phase auction to a close,” Epstein said in an emailed statement. “The incentive auction has required unprecedented commitment from bidders as well as Commission staff, who from the moment that broadcasters made their initial commitments to the final bids processed this afternoon have worked each day to assist bidders and ensure a fair and successful auction. We are excited to share the results of the reverse and forward auctions and extensive information about the post-auction transition in the next few weeks.” The agency reminded bidders they remain under a quiet period. Before the end of the day Friday, “a document specifying the formats of the reverse and forward auction results files that will be publicly available after release of the Incentive Auction Closing and Channel Reassignment Public Notice will be available under the Data section of both the Auction 1001 and the Auction 1002 websites,” the FCC said. “An online tutorial on the immediate post-auction process for the forward auction will be available under the Education section of the Auction 1002 website.” The auction started in May and was the longest by far in commission history. “Today is the closing of an historic effort,” former FCC Chairman Tom Wheeler emailed. “Beginning with the National Broadband Plan and the subsequent enactment of broadcast incentive auction legislation by the Congress, the FCC set out to do something that had never been done before: manage a two-sided spectrum auction. But the challenge was more than the buy-sell of the actual auction, the auction itself was proceeded by multiple FCC decisions related to the other various users of the spectrum in question, as well as the need to establish the rules for the auction itself -- rules that had never been tested before.” Wheeler said Epstein and his team deserve the credit for making the auction work. NAB is "eager to work with the Commission to ensure a smooth repacking transition that protects consumer access to local news, weather, community service and lifeline emergency programming,” the group said. “We look forward to working on a bipartisan basis with policymakers on a seamless transition."

Creation of gigabit opportunity zones got tentative bipartisan support from some lawmakers, FCC Chairman Ajit Pai said at American Cable Association event Thursday, adding he hopes to see such zones incorporated into any national infrastructure spending plan or as a stand-alone. He has pushed the idea for these zones -- featuring tax breaks to encourage private-sector gigabit broadband deployment -- for months (see 1609130061). Pai said that with infrastructure investment being a top national priority, the agency is particularly focused on looking at rules to see what can be eliminated or revised so as to encourage infrastructure-related investments. He said the agency is reviewing options for how to revisit Communications Act Title II classification of broadband. "We want every consumer … to have that open internet experience," Pai said. "But networks need incentive to invest and innovate." He said he had no idea of the status of the draft order on circulation removing the network overbuild condition on Charter Communications (see 1702240029). Pai said he hasn't talked with other commissioners about it, though he supports the revamping because the overbuild requirement "accentuates the digital divide." The cable industry crowd repeatedly applauded Pai, a marked contrast from the frost between the industry and previous Chairman Tom Wheeler (see 1605200037). "We don't view you as an enemy," Pai said, because Washington “recognizes this is the challenge of our time -- building a digital infrastructure across this country" -- and cable ISPs need incentives to make those investments. The FCC now has more focus on cable industry economic freedom, Macquarie analyst Amy Yong wrote investors Thursday. Commissioner Mike O'Rielly, speaking before the ACA this week, was clear that some previous FCC rulings could be reopened and amended, such as the Title II ban on paid prioritization by ISPs (see 1703290026), Macquarie said. With net neutrality rules likely to be rolled back, providers will have more options for favoring or prioritizing content, but removing such barriers benefits consumers by letting providers enhance their services, Macquarie said. Asked about future video regulation issues, Pai said the current independent programming NPRM has keyed up some of these issues and will "hopefully ... give us a better sense of what's going on in the marketplace." He said the commission is "trying to figure out the appropriate role for the FCC ... in this space."