A proposed rule that would extend requirements for diversity in procurement to all FCC regulatees doesn't present a constitutional question, Multicultural Media, Telecom and Internet Council Senior Adviser David Honig said in a letter to the agency responding to Chairman Tom Wheeler's testimony on Capitol Hill Tuesday. Wheeler told legislators the MMTC proposal to apply pay-TV procurement rules to all FCC regulated entities could raise a constitutional question of strict scrutiny. “Until your testimony today, no one has ever suggested that the Rule presents any constitutional question,” Honig wrote. “Supporters and opponents of affirmative action agree that if a regulation merely required stations to implement racially neutral recruiting and hiring programs, the equal protection guarantee would not be implicated,” said Honig. “This is settled law.” MMTC wants to have the procurement extension included in the FCC upcoming media ownership order, which already has been voted by the Democratic FCC commissioners, as was announced Tuesday (see 1607120078).

Public Knowledge hopes the FCC will address consumer-protection concerns about a tech transition item slated for a vote Thursday (see 1607080043). In meetings with consumer advocates, FCC staff "seemed receptive" to the concerns -- about consumer notification, education, affordability and broadband access -- but it's unclear what the commission will do in the final order, said Dallas Harris, a PK technology counsel, on a news-media call Tuesday. Senior Vice President Harold Feld said FCC Chairman Tom Wheeler might be reluctant to make changes if they would thwart a 5-0 vote, though he didn't know if that would be the case. PK supports the telecom industry's efforts to upgrade infrastructure, but Harris said the FCC should ensure it's an upgrade for all consumers and not a downgrade for some. PK proposed a "checklist" to ensure replacement services are at least as good as legacy services, she said, and the FCC appears likely to adopt several of the group's recommendations. A 2015 NPRM suggested eight general criteria for judging telecom service discontinuance standards: (1) network capacity and reliability; (2) service quality; (3) device and service interoperability; (4) service for individuals with disabilities; (5) Public service answering point and 911 service; (6) cybersecurity; (7) service functionality; and (8) coverage. Harris said she isn't aware of any major FCC departures from that list, but ILECs last fall objected to several of the items (see 1510270058). More recently, AT&T proposed a certification path to streamlined review (see 1606010046), and Verizon said cybersecurity certification shouldn't be required for such treatment (see 1606300058). Harris said the FCC's possible 15-day comment period for fast-track reviews is insufficient. While PK welcomed an apparent commission desire to require carriers to conduct consumer outreach and education, the group is concerned it not occur only in English, she said. Harris also said ensuring affordability and broadband access should be FCC priorities. Also on Public Knowledge's call, a commission order on 5G was discussed (see 1607120074).

The FCC didn't base recent regulatory efforts on economic reasoning and should be reined in by Congress, said a report Monday that called the commission "an agency in search of a mission" in the digital age. “We must get back to the practice of basing regulations on thorough analysis rather than populist rhetoric,” said a statement from Mike Montgomery, executive director of CALinnovates, which funded the report. CALinnovates describes itself as a coalition of tech leaders, startups and entrepreneurs that seeks to be a bridge from the tech community to California and federal policymakers; its partners include AT&T. Previous FCCs made "wise" decisions informed by economic principles that deregulated long-distance phone services, enabled enhanced internet data services and spurred wireless growth, said the report by Gerard Faulhaber, a professor emeritus at the University of Pennsylvania Wharton School and law school, and Hal Singer, a senior fellow at George Washington University School of Public Policy. "The failure of the FCC to ground its regulations in economic reasoning in the last few years, however, has led to inefficient policies and proposals that threaten to eviscerate prior benefits," said their report. "The FCC has made no effort to subject its pending privacy or set-top-box proposals to cost-benefits analysis." They said the net neutrality order highlighted "the quagmire facing policymakers" as a federal appeals court deferred to the agency's policy expertise. "Given the FCC’s willingness to eschew econometric evidence and economic theory as it considers new regulations, the most direct way to re-inject economics into FCC policymaking is via a Congressional mandate for the agency to perform cost-benefit analysis, subject to OIRA [White House Office of Information and Regulatory Affairs] or judicial review," the report said. "There is no reason why the Department of Labor, the Environmental Protection Agency, the Consumer Financial Protection Bureau, and a host of other agencies should be required to perform cost-benefit analysis, while the FCC is free to embrace populism as its guiding principle." The FCC didn't comment. The commission's recent business data service proposal did include a detailed market study by consultant Marc Rysman, a Boston University econometrician, which also was subjected to peer reviews that were recently released.

Correction: Nine tables of FCC regression results -- modifying regressions from consultant Marc Rysman's business data service study -- had suffered from a recent coding error and were corrected Friday in a Wireline Bureau document (see 1607080052).

Building flexibility into the rules is key as the FCC considers the transition from the text telephone (TTY) technology to real-time text (RTT), CTA said in comments in docket 16-145 on an April 28 NPRM (see 1604280055). The agency “should avoid adopting overbroad regulations that could limit the development of assistive technologies like RTT or inadvertently extend requirements to products that are not intended for voice communications,” CTA said. “The Commission should modify its proposal so that manufacturers have the flexibility to bring the most innovative and effective communications solutions to users who are deaf or have hearing or speech impairments.” NCTA said the FCC should move forward on RTT rules for wireless networks, but defer addressing wireline. “Wireline voice networks and devices have a rapidly declining user base, they generally are not designed to support text-based communications and, except for TTY services, are not used to provide text-based communications,” NCTA said. “Operational challenges of implementing RTT on VoIP systems are potentially significant.” The FCC proposal “poses significant jurisdictional questions” for the California Public Utilities Commission, said CPUC staff in a memo to be considered at the state commission’s Thursday meeting. The staff urged the CPUC to comment on the FCC NPRM. “Because the existing TTY program is analog-based, it falls squarely within the CPUC’s jurisdiction over services that are not IP based or that are purely intrastate,” the CPUC staff said. But the CPUC lacks authority over IP services, except when required or expressly delegated by federal law, it said. “If the FCC determines that RTT is a purely interstate service, the CPUC would be barred from regulating it because the FCC has exclusive jurisdiction over interstate telecommunications services.” If barred from regulating RTT, the CPUC’s Deaf and Disabled Telecommunications Program (DDTP) relay service “likely would have to be terminated at some point in the future,” it said. Also, RTT should be interoperable with analog-based TTY, the CPUC staff said. “Because the DDTP’s relay service is analog-based, and its equipment is imperfectly compatible with IP-based service, existing users of the DDTP’s TTY equipment will be significantly degraded in the event of an abrupt shift to real-time text technology.” The staff objected to a sunset date for TTYs because it said the number of existing TTY customers participating in the DDTP is declining. Instead, the compatibility requirement should remain as long the analog phone system is in place, it said. Comments are due July 11 -- before the CPUC meeting -- but the CPUC can file replies by July 25.

The FCC gave NCTA and other supporters of the pay-TV backed set-top proposal (see 1607010066) a list of questions seeking more detail on the plan’s specifics, a cable industry official told us. The document seeks more information about the future of HTML5 and how the pay-TV plan would work, and said “we agree that a licensing model is a viable option to ensure a variety of protections.” The FCC also indicated support for the HTML5 standard, which is what that alternative set-top plan is based on: “We agree that HTML5 may be an appropriate platform for app developers to provide access to content.” Both the licensing concept and the HTML5 standard were targeted in comments from proponents of the original FCC set-top plan, such as Public Knowledge. The questions also show the agency is trying to get specific answers to questions raised by critics of the pay-TV plan, such as whether third-party boxes running pay-TV apps will be able to use DVR functionality. There are also signs of contention, such as FCC comments that “innovation and competition in user interfaces has the potential to lead to consumer friendly features.” The pay-TV proposal’s apps would each use the multichannel video programming distributor interface. The FCC had no comment. In an ex parte filing posted Monday in docket 16-42, Roku expressed concern about the pay-TV compromise plan’s use of HTML5. The MVPD proposal “would, as a practical matter, establish HTML5 as the de facto standard in the video distribution marketplace,” Roku said. “Such an approach would be ill advised given that consumers have clearly demonstrated their preference for an array of devices with diverse user experiences at various price points, which has spurred competition and innovation in the marketplace.” HTML5 is a “bulky and expensive architecture” that would require third-party device manufacturers to “include additional processing power and memory to support it, even in their lowest-priced devices,” the company said.

Overbuild requirements on Charter Communications' broadband network will use company resources better used for improving service to existing customers or expanding service to unserved potential ones, NTCA CEO Shirley Bloomfield told Commissioner Mike O'Rielly and Commissioner Ajit Pai's chief of staff, Matthew Berry, in separate meetings, said an ex parte filing Friday in docket 15-149. NTCA, the American Cable Association and Competitive Enterprise Institute petitioned the FCC to reconsider the overbuild conditions (see 1606100043). Bloomfield said overbuilding in areas that can't support competition or even a sole broadband network could lead to services being pared in those markets or to companies exiting altogether. If Charter is the sole provider in a market, she said, it's under no obligation to ensure quality or affordability, just "to build," she said.

The FCC corrected regression analysis in consultant Marc Rysman's white paper on the business data service market, a modified version of which was recently released along with other documents to factor in updated cable BDS competition data and peer reviews of the study (see 1606290045 and 1607070006). Nine tables and some associated text in Attachment 3 titled "Competitive Effect of Cable Network Infrastructure" suffered from an inadvertent coding error and were revised, but the revisions don't change the findings in Attachment 3, said a Wireline Bureau public notice in docket 16-143. It noted all of the documents are on the commission's BDS peer review webpage.

Part of Ligado's LTE network plans -- specifically its use of 1627.5-1637.5 MHz -- should come with license conditions to reduce potential interference to Iridium's satellite downlinks, Iridium said in an FCC ex parte filing posted Wednesday in docket 11-109. Iridium's proposed conditions include reduced out-of-band emissions from Ligado's mobile terminals into Iridium's adjacent spectrum at 1617.775-1626.5 MHz, and exclusion zones around airport facilities to prohibit Ligado user terminals near aeronautical mobile-satellite route service communications. Iridium said its interference worries involve unwanted emissions within its band, not receiver overload from Ligado's in-band emissions -- which was the source of GPS industry conflicts with Ligado. The filing recapped a meeting between Iridium representatives including Chief Legal Officer Thomas Hickey and FCC staffers from the Wireless and International bureaus and the offices of General Counsel and of Engineering and Technology. A Harris Corp. engineer also participated. Ligado didn't comment Thursday.

Local number portability administrator Neustar detailed its major concerns with the FCC proceeding to shift LNPA duties to Ericsson-owned Telcordia Technologies. "At every phase, Neustar has been disadvantaged by arbitrary decisions behind closed doors that tipped the scales in favor" of Telcordia, said a Neustar letter posted Thursday in docket 09-109. "The Commission is now poised to embrace a decision with all of the transition risk but none of the 'cost savings over the existing contract,'” it said, citing a 2015 LNPA selection order. "One option available to the Commission in March 2015 would have been to retain Neustar as the LNPA at its best offer price, which would have resulted in significant cost savings over Neustar’s existing contract, but with none of the transition risk. Given the extraordinary transition delays and security violations, however, the FCC now appears committed to choosing a result in which the American people realize no cost savings over Neustar’s existing contract but accept all of the transition risk." The FCC LNPA transition is a "raw deal for consumers -- a decision that carries significant national security questions and transition risk to critical telecommunications infrastructure that Americans depend upon every day for reliable communications," the company said. Neustar said it would be "arbitrary and capricious" for the FCC to approve a proposed Telcordia master services agreement as LNPA without addressing its concerns.