Local authority is at risk for wireless towers, said municipal lawyers on a NATOA webinar Monday about an NPRM released by the FCC Sept. 26 (http://bit.ly/193hsss). The FCC wants to clarify Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, which established a new federal governance of state and local review of eligible requests for modification of existing wireless towers or base stations, including requests for collocation, said the NPRM. The FCC is attempting to clarify a vaguely written law, said Matt Schettenhelm, a Best Best and Krieger attorney. The law doesn’t define a base station or a wireless tower, which is needed to get the scope of the law, said Schettenhelm. “We would prefer if the FCC would defer to the states, but we need a plan B that will actually work.” There are ways the NPRM could lead to out-of-hand regulation by the FCC that could rapidly increase small-cell growth, said Jonathan Kramer, Telecom Law Firm lawyer. “The FCC can only provide guidance on the government side of issue.” Local governments should file comments to show what local governments want, said lawyer Ken Fellman of Kissinger & Fellman. “The FCC noted in the NPRM that they do not want to become a national zoning board, but if they act on this issue, they will.” Wireless towers should be limited to structures meant for such use, said Fellman.

The USA Freedom Act would “undo much of the damage of the Patriot Act,” Rep. Justin Amash, R-Mich., told crowds Saturday at the Stop Watching Us rally in Washington against National Security Agency domestic surveillance. The bill is expected to have at least 60 co-sponsors in the House and be introduced Tuesday (CD Oct 28 p1). The proposed legislation would end bulk collection of phone metadata, create a constitutional advocate for the Foreign Intelligence Surveillance Court, allow companies to disclose information about the surveillance requests they receive, and tighten FISA Section 702. The rally was the product of a coalition of groups including Free Press, Public Knowledge and the American Civil Liberties Union. Amash has been an outspoken critic of such surveillance, and an amendment he put forward with Conyers to cut the NSA’s funding was narrowly defeated this summer. The Amash amendment debate was “the proudest moment for me as an elected official,” Amash said. “It scared people. It scared the establishment in both parties. We had the president of the United States fighting against the amendment.” Amash warned against the backers of NSA surveillance and the NSA’s potential support of CISPA. “The way CISPA is written, the NSA believes it will legalize what they are currently doing illegally,” Amash said. “Now of course we know that’s nonsense. The Constitution makes what they're doing illegal.” Amash instead pointed to the significance of Congress’s enacting the USA Freedom Act. “So this is something we're going to be working on,” Amash said of the surveillance overhaul, sponsored by House Judiciary Crime and Terrorism Subcommittee Chairman Jim Sensenbrenner, R-Wis. and Rep. John Conyers, D-Mich. “It’s going to be introduced very soon. We need you to speak up, to stand up, to call your representatives. … Let them know you support the USA Freedom Act."

Sen. Ted Cruz, R-Texas, slammed the White House Friday night for government phone and Internet surveillance, speaking at the Iowa Republican Party Reagan Dinner in Des Moines. “We've seen the assault on the” Fourth and Fifth amendments “as this administration has been invading our privacy, with the NSA seizing phone records and emails and viewing law-abiding citizens as the target of their efforts,” Cruz told the crowd at the conservative event. “By the way, for anyone who has their cellphones here, please leave them on. I want to make sure President Obama hears everything we say tonight.” President Barack Obama announced in August that he wants greater transparency and oversight of these practices, and members of Congress have introduced a variety of proposals to overhaul U.S. surveillance laws in recent months.

Any delays in the Senate’s confirmation of Tom Wheeler as FCC chairman will not mean a slowdown in the incentive auction of broadcast TV spectrum, acting Chairwoman Mignon Clyburn said Monday in the news conference after the FCC meeting. A 2014 auction remains on track, she said. “We have had 150 ex parte meetings,” Clyburn said. “This is a first-of-its-kind incentive auction process that … is moving, that is continual and there are no delays and we [are] poised and stand ready to have an auction next year.” The auction is “predestined” and the agency continues to meet benchmarks for getting ready, she said.

Long-term retransmission consent contracts that multichannel video program distributors such as Charter, Time Warner Cable and DirecTV are already locked into would likely prevent them from switching to an Aereo type business model that avoids retrans rules, said Wells Fargo analyst Marci Ryvicker in an email to investors. “While we don’t doubt that the wheels are turning here, we just don’t view Aereo or an Aereo-type service as that simple of a solution,” said Ryvicker. Most MVPDs are at the beginning of newly signed retransmission consent deals, she said, meaning “an Aereo-type implementation” wouldn’t be viable until 2017 or later. It’s also unlikely that any MVPD would take such a step before court decisions firm up the question of Aereo’s legality, she said. Since Aereo isn’t currently defined as an MVPD, as are TWC and the other companies, it’s not legally obligated to pay retrans fees. “Unless the incumbent MVPDs give up a substantial amount of rights, we don’t see how they avoid retransmission consent requirements,” said Ryvicker. She said the issue could lead the FCC to revisit a 2012 public notice on whether over-the-top video providers should be classified as MVPDs. “IF OTT providers are eventually considered to be MVPDs, then the question of Aereo’s legality becomes moot -- since as an MVPD, it would be required to pay retransmission consent to every broadcaster in every market,” said Ryvicker. Aereo is facing lawsuits from broadcasters.

Congress should set national goals and performance metrics in the deployment and adoption of broadband, Sunne Wright McPeak, president of the California Emerging Technology Fund, plans to testify Tuesday. The goals and frameworks should include a timetable and assigned responsibilities, she will say, urging continued implementation of the National Broadband Plan and use of NTIA’s broadband adoption tool kit, released earlier this year. McPeak is to be a witness before the Senate Communications Subcommittee hearing on broadband adoption, set for 10:30 a.m. Tuesday in 253 Russell. Other witnesses include Aaron Smith, senior researcher at the Pew Research Center, Comcast Executive Vice President David Cohen, Blandin Foundation Director-Public Policy and Engagement Bernadine Joselyn and Broadband for America Honorary Co-chair John Sununu. McPeak will discuss her experiences leading the California broadband fund and back the integration of broadband and information technologies into all federal policies and programs. “There is a need to ‘connect the dots’ with a set of coherent strategies that transcend ‘bureaucratic silos’ to optimize access to and use of the Internet with high-speed connections,” she will say, according to her written testimony. The U.S. Department of Education must ensure broadband is integrated throughout schools, and the U.S. Department of Housing and Urban Development should pursue “smart housing,” she is to say. The Homeland Security Department should be a “proactive partner” to FirstNet, according to McPeak. She will ask “the FCC to structure USF reforms for a Broadband Lifeline Rate Program and eRate [sic] to encourage and reward providers who partner with non-profit intermediaries (such as EveryoneOn) and trusted [community-based organizations] with a proven track record and align with state plans,” according to her testimony. “Reimbursement and subsidies from the USF should reward public-private partnerships that drive to and achieve explicit broadband adoption goals."

Increasing mobile device use by young children heightens the need for an update to the 1998 Children’s Online Privacy Protection Act, said Sen. Ed Markey, D-Mass., and Rep. Joe Barton, R-Texas, in a joint statement Monday. “In the 21st century parents now have to plan for their children to crawl, walk, run and browse,” they said. The statement was in response to a new Common Sense Media survey (http://bit.ly/17nwr2t) about mobile device use among children up to 8 years old. The percentage of children under 8 who have used some type of mobile device has doubled in the past two years, from 38 percent to 72 percent, the survey found. In 2011, Markey and Barton introduced the Do Not Track Kids Act, which would forbid online stores from collecting children’s information without parental consent. And even if companies received consent, they would not be able to use any collected information for marketing purposes. In their statement, the two lawmakers called for the bill to be reconsidered. “Increasing use of mobile devices by very young children coupled with rapid change in technological development makes it more important than ever to put federal legislation on the books that provides parents with the tools to protect their children online,” they said. “The Do Not Track Kids legislation would update COPPA for this new Internet ecosystem, establish new protections for the personal information of children and teens and ensure that parents have the tools they need to protect their children’s privacy.”

Gogo signed a contract with Japan Airlines to provide Gogo’s in-flight Internet service on the airline’s domestic fleet of 77 aircraft. The service will utilize Gogo’s Ku-band satellite connectivity technology “and is expected to be available to JAL passengers beginning in the summer of 2014,” Gogo said in a news release (http://bit.ly/19No9OV).

Cable operator assurances that they will continue to provide and support CableCARDs, even though FCC requirements that they do so were struck down, “do not rise anywhere near the level of certainty required for a retail market to exist,” said TiVo in a filing Friday in docket 97-80 (http://bit.ly/1f06GET). NCTA and others had commented on TiVo’s petition to have the rules reinstated that there’s no evidence companies have slackened their CableCARD support since the U.S. Court of Appeals for the D.C. Circuit’s EchoStar decision struck them down (CD Sept 19 p8). TiVo said that’s not so. The company’s internal surveys on CableCARD compliance following EchoStar “show a drop in the percentage of MSOs offering discounts off their bundled prices for customer-owned DVRs” and more cable operators “requiring provider-only installations of CableCARDs,” said TiVo. “One has to wonder why NCTA is opposed to the reinstatement of the CableCARD standard if cable operators plan to comply with the rule by continuing to provide CableCARDs.” NCTA said the CableCARD rules are an “anachronism” due to the competitive media market, where customers have many choices outside of cable. However, TiVo argued that on-demand video services and products such as Xbox and Roku are complements to multichannel video programming distributors rather than competitors, pointing to a reported deal that’s in the works for Netflix to become available on set-top boxes as evidence. “These negotiations are further proof that prominent [online video distributors] OVDs like Netflix are not viable competitors to MVPDs and are not viewed as alternatives by consumers,” said TiVo. NCTA again said Friday that the commission shouldn’t reinstate the CableCARD rules, and said the EchoStar decision means the commission doesn’t have the authority to do so. If the commission does issue an NPRM based on TiVo’s request, NCTA said the rulemaking should include consideration of an automatic three- to five-year sunset for the reinstated rules. TiVo said it would support a sunset clause if it was conditional on a “successor solution” being in place. “If the Commission were to sunset the CableCARD standard prior to a successor solution being in place, it will be failing to live up to its mandate,” said TiVo. Without the CableCARD encoding rules, “nothing would prevent programming interests, through retransmission consent negotiations, from imposing unreasonable restrictions on consumers’ use of programming,” said TiVo. CEA, the AllVid Tech Company Alliance and TiVo said any rulemaking on this issue that considers more than the relief sought by TiVo should propose a specific successor interface for CableCARD, said their filings. CableCARD requirements could be further knocked down by a House bill introduced last month by Communications Subcommittee Vice Chairman Bob Latta, R-Ohio (CD Sept 30 p6). No hearings for the bill have been scheduled.

The FCC should adopt the same kinds of spectrum aggregation limits in the incentive auction of TV spectrum that New Zealand adopted for its 700 MHz auction, T-Mobile said in a letter to the FCC, posted Monday by the commission. For its 700 MHz spectrum, “the New Zealand Ministry for Communications and Information Technology limited the amount of spectrum that could be acquired per bidder to a maximum of three 2x5 MHz blocks of spectrum, or one-third of the 90 MHz of spectrum being made available,” T-Mobile said (http://bit.ly/1av1VAo). “If any lots remain unsold after the initial auction round closes, the auction rules provide that the spectrum aggregation limit may be relaxed to allow a bidder to acquire a fourth 2x5 MHz spectrum block. These rules reflect New Zealand’s long-standing position that ‘[a]uction designs that are only attractive to incumbents discourage other participants’ and carry with them the potential to harm competition in the downstream market."