Sens. Ron Wyden, D-Ore., and Pat Toomey, R-Pa., reintroduced the Wireless Tax Fairness Act Wednesday, which would place a five-year freeze on new state and local taxes on wireless goods and services. “There is no reason wireless tax rates should be on par with vice taxes like tobacco and alcohol. It is time to protect wireless services from unfair and excessive taxes,” Wyden said in a joint news release with Toomey. “Rather [than] taking more money out of people’s pockets, we need to let the Internet economy thrive and create jobs without being subject to a tax that is not imposed on other products or services,” said Toomey. CTIA President Steve Largent hailed the bill’s reintroduction. “It’s unfair for local and state governments to balance their budgets by choosing to levy disproportionally high taxes on wireless users,” he said in a news release.

"Firms are not passive recipients of regulation.” That’s the takeaway of a new study by the Phoenix Center, said President Lawrence Spiwak, on the institute’s latest paper examining the effects of the unbundling rules in the 1996 Telecom Act (http://bit.ly/120wRCj). It was “one of the most ambitious regulatory experiments in American history,” but the experiment ended less than a decade later, the paper said. Three main factors led to its “demise,” it said: “unrealistic” expectations of policymakers for greenfield competitive facilities-based entry into the local wireline market; the lack of incentive for ILECs to “surrender market share” to CLECs without permanent offsetting benefit; and the rise of new telecom technologies like cable, that led to more competition. “While unbundling may have been a sensible policy for the monopoly communications world of 1996, the presence of inter- and intra-modal competition and the inherent incentive problems with unbundling make it unsuitable for today’s marketplace,” the paper said. CLEC attorney Thomas Jones of Willkie Farr agreed that from the perspective of the mass residential market, unbundling is “not really available” anymore since the FCC got rid of unbundled switching. But unbundling is still used widely by competitive carriers to serve the business market, Jones said. “Reports of the demise of unbundling or last mile wholesale offerings mandated for the ILEC are greatly overstated in this paper. It’s alive and very, very important in the business market.” But its continued viability, Jones cautioned, is “subject to the key qualification that the FCC needs to update its rules so they apply to packet-based IP services.”

Correction: The president who named Judge Judith Rogers to the U.S. Court of Appeals for the D.C. Circuit was Bill Clinton (CD June 26 p1).

The three-judge panel selected to hear Verizon’s appeal of the 2010 FCC net neutrality order (CD June 26 p1) could prove a good panel from the agency’s perspective, said Stifel Nicolaus in a research report Wednesday. The panel is made up of two Democrats, Judith Rogers and David Tatel, and only one Republican, Senior Judge Laurence Silberman, Stifel noted. “This appears to be a decent draw for the FCC, as we believe it has a better chance of defending its order with the two Democratic judges than if there were a Republican majority,” said the analysts. “Republicans outnumber Democrats 9-5 at the D.C. Circuit. Based on our discussions with D.C. Circuit watchers, we also believe that Judge Rogers is one of the court’s most liberal judges."

It is “past time” for the FCC to enforce the conditions of the Comcast/NBCUniversal deal order and make Comcast place the Bloomberg TV network in the same neighborhood as other news networks, said the cable programmer in a filing Tuesday (http://bit.ly/1cnx7ky). “After more than 29 months, over two years longer than the 180 days provided to the Commission to review the Merger, Bloomberg respectfully requests that the Commission enforce the Condition and issue a final decision on Bloomberg’s complaint.” Though Bloomberg has argued that Comcast should have to put Bloomberg’s standard-definition networks next to other news channels, Comcast has said it should only be required to put Bloomberg TV’s HD feed there (CD Oct 11/12 p12). Bloomberg pointed out that the deal order that contains the disputed neighborhood condition expires in just over four years. “That is to say that nearly 36 percent of the time required for the conditions has been allowed to run without full and meaningful implementation by Comcast of the news neighborhood condition,” said the filing. Bloomberg said the pleading cycle ended eight months ago on a Media Bureau decision to delay enforcing the condition until after an FCC review, but the commission has yet to take the matter. The FCC website listed a matter related to the companies as “on circulation” as of February. Comcast declined to comment. An FCC official said it’s not clear if acting Chairwoman Mignon Clyburn has a different take on the dispute than former Chairman Julius Genachowski, who was in control when the matter initially came before the agency. The Bloomberg filing may indicate that the company doesn’t want to wait for the commission’s current leadership transition, said public interest lawyer Andrew Schwartzman. “Waiting is costing Bloomberg money.” Schwartzman pointed out that it could be several months before FCC Chairman nominee Tom Wheeler takes office.

Sen. Ben Cardin, D-Md., urged FCC acting Chairwoman Mignon Clyburn to address the issue of patent assertion entities which he said are targeting telcos that provide 911 emergency response capabilities, in a letter made public this week. Cardin said some PAEs are exploiting the mandatory nature of the FCC’s E-911 regulations “by claiming that the use of technologies, systems, or methodologies necessary to provide E911 services (and very soon [next-generation 911] services) in order to comply with the FCC standards is the cause of alleged infringement,” said the letter. “This litigation practice forces wireless carriers and E911 service providers into the dilemma of facing the unacceptable consequences of violating (or being party to violating) FCC licensing standards or being adjudicated as a patent infringer.” The allegations are “one of the most worrisome examples of the types of abusive patent litigation models,” said Cardin. “It deserves our highest attention.”

Investors shouldn’t be worried about online TV service Aereo disrupting the video “ecosystem” by using broadcast content without paying retransmission-consent fees, said Wells Fargo analyst Marci Ryvicker in an email to investors Wednesday. Although the outcome of the multiple court cases involving Aereo and competitor FilmOn is unclear, even if court decisions went in those companies’ favor, it’s unlikely their business model would have a large impact on retran, she said. “It is extremely costly and technologically difficult for incumbent MVPDs to pursue an Aereo-type model, thus negotiating leverage might not tip as much in MVPD favor as investors fear.” A win for Aereo and FilmOn could initially be “a negative catalyst for media stocks,” wrote the analyst. She said broadcasters are “most likely to prevail” against FilmOn, and the outcome for Aereo in the 2nd U.S. Circuit Court of Appeals in New York is harder to determine. “The litigation is likely to take some time, which means that Aereo and FilmON will continue to launch market-by-market until they are stopped,” said the report. Ryvicker said a circuit split between the two cases would likely lead to the Supreme Court, but that this was unlikely to happen before 2015, since the court will wait for the other cases involving the companies to play out. The report said if Aereo being declared legal in some markets caused retrans fees to dip there, broadcasters would increase their rates in markets where Aereo remained illegal to offset the loss. Ryvicker also said that broadcasters might unveil their own mobile video products to “invalidate” Aereo’s business model or broadcast networks might “negotiate retransmission consent on behalf of all station groups and retain a portion as reverse” compensation. Although some broadcasters have threatened to change to a pay-TV model if Aereo’s system remains legal, the report said that would be a bad choice for their businesses, “given the complexities of sports contract negotiations, the difficulties of actually switching from broadcast to cable … the risk to advertising dollars; and the beauty of having three revenue streams.”

Dan Ohlbaum, 90, a longtime litigator at the FCC, died Monday at Suburban Hospital in Bethesda, Md., of pneumonia and respiratory failure. He joined the Litigation Division of the General Counsel’s Office in 1948, and defended the agency in oral argument during many cases before the U.S. Court of Appeals for the D.C. Circuit, and in 1964 was named deputy general counsel. He joined the FCC Review Board as one of three members when it was created in the 1960s, and did pro bono work at Arnold & Porter after retiring from the commission. His funeral is this Thursday at King David Memorial Park in Falls Church, Va., and donations can be made in his honor to the Jewish Federation of Greater Washington.

Rep. Ed Markey, D-Mass., won the Massachusetts special U.S. Senate election Tuesday to fill the seat vacated by Secretary of State John Kerry, a term that ends in 2015. Markey, a member of the House Commerce Committee, beat Gabriel Gomez, a Republican businessman and former U.S. Navy SEAL. The margin of victory was 55 percent to 45 percent. It was unclear Wednesday if Markey would replace interim Sen. Mo Cowan, D-Mass., on the Senate Commerce Committee. A spokesman for Senate Majority Leader Harry Reid, D-Nev., did not comment. Hill and industry sources told us there are at least three likely candidates to replace Markey on the House Commerce Committee: Reps. Tim Walz, D-Minn.; John Yarmuth, D-Ky.; and Kurt Schrader, D-Ore. A spokesman for House Minority Leader Nancy Pelosi, D-Calif., said the Democratic Steering Policy Committee has not yet scheduled a meeting to consider candidates for the open committee seat.

Penny Pritzker was sworn in as commerce secretary Wednesday. Pritzker replaces acting Secretary Rebecca Blank, who took over in 2012 after John Bryson took a medical leave last June following reports that he was involved in car accidents related to a seizure that he suffered.