Telecom industry interests are supporting the FCC's proposal for extending the current jurisdictional separations freeze and allowing RLECs that chose to lock in their category relationships in 2001 a chance to opt out, in docket 80-286 comments. Commissioners unanimously approved the Further NPRM in July (see 1807180059). Monday was the comment deadline, with replies and state public utility commission initial comments due Sept. 10 (see 1808200025).

Sen. Richard Blumenthal, D-Conn., said Tuesday he plans to ask Supreme Court nominee Brett Kavanaugh about his dissent in the D.C. Circuit's 2017 en banc affirmation of the FCC's 2015 net neutrality rules in USTelecom v. FCC, No. 15-1063, during his confirmation hearing (see 1705010038). Blumenthal is one of five Commerce Committee members who also sit on the Judiciary Committee, which will begin hearings on Kavanaugh Sept. 4. Three other lawmakers -- Sens. Ed Markey, D-Mass., Ron Wyden, D-Ore., and Rep. Anna Eshoo, D-Calif. -- also said during a conference call with Blumenthal and reporters they oppose Senate confirmation of Kavanaugh because of his views on net neutrality.

The FCC likely can find an easy solution after a three-judge panel of the 8th U.S. Circuit Court of Appeals vacated one part (see 1808280020) of a decision easing regulation of the business data service rates of major incumbent telcos, experts said. The court denied CLEC and ILEC petitions in general but vacated the final rule on TDM transport services, remanding it to the regulator for further proceedings. The case is Citizens Telecommunications v. FCC, No. 17-2296. Oral argument was in May (see 1805150020).

Fight for the Future, Free Press, Public Knowledge and 21 other groups jointly urged senators Monday to vote down Supreme Court nominee Brett Kavanaugh because of his dissent in the D.C. Circuit's 2017 en banc affirmation of the FCC's 2015 net neutrality rules in USTelecom (see 1705010038). Kavanaugh, if confirmed, is considered likely to generally raise the high court’s bar for FCC regulations in part because of perceptions he will seek to rein in Chevron deference to agency expertise (see 1807100020). Kavanaugh’s opinion in USTelecom “makes clear that he views administrative law and appellate review of agency decisions not as a means to ensure that agencies engage in reasoned decision making, but as a tool to force deregulation and let judges strike down agency actions at will,” the groups said in a letter sent to all senators. Kavanaugh “would side with big telecommunication companies whenever a free and open internet for all is at stake” and “would strike yet another blow to the 21st century’s online mobilization and communication infrastructure, demonstrating support for big cable companies but ignoring the wishes of the American public.” Sens. Richard Blumenthal, D-Conn.; Ed Markey, D-Mass.; and Ron Wyden, D-Ore.; and Rep. Anna Eshoo, D-Calif.; plan to raise their concerns about Kavanaugh’s net neutrality views during a Tuesday conference call with reporters.

Major internet players asked the U.S. Court of Appeals for the D.C. Circuit to overturn last year’s order repealing 2015 net neutrality rules. The Internet Association filed a brief joined by the Entertainment Software Association, Computer & Communications Industry Association and Writers Guild of America West. The IA-led filing said the FCC was wrong that bright line rules aren’t needed. “The broadband marketplace cannot effectively discipline ISP gatekeepers because a lack of competition and high switching costs prevent even fully-informed consumers from responding to unwanted ISP practices,” they said. “General consumer protection laws provide no clear protection against non-neutral ISP practices so long as they are disclosed, and antitrust laws were neither intended nor designed to address the net neutrality harms at issue here.” The FCC didn’t correctly assess costs of overturning the rules and professed lack of jurisdiction, IA said. “The Commission entirely disclaims authority it possesses under this Court’s precedent, while exceeding its authority under the only source of authority the Order recognized -- the now-repealed Section 257(c) of the Communications Act." The 2015 order wasn’t unprecedented, Consumers Union said. “It implemented the same policy the FCC had been pursuing for more than four decades, using the tool that was available to it -- a tool that the Commission had used before, from 1998-2005.” What was unprecedented was last year’s repeal, CU said. “For the first time since the 1960s, the FCC abandoned the principles of openness, nondiscrimination, and competition central to net neutrality. The resulting 2018 Order’s revision of history ignored nearly a decade of wireline broadband classification under Title II.” USTelecom President Jonathan Spalter slammed the IA pleading. “It’s ironic" the companies that "have become the internet’s most powerful gatekeepers are claiming to fight for a free and open internet that exempts them from the very rules for which they are advocating,” he said. He sought "legislation that provides uniform consumer protections that apply to all companies in the internet ecosystem, and will truly preserve and protect net neutrality principles for all.” Professors and former FCC Chief Technologists Scott Jordan and Jon Peha said it's the agency that didn’t keep up with how technology has evolved. The order “relies on technical assumptions that are no longer valid,” they said. “Consumers today turn almost entirely to providers other than their ISP for e-mail service, web page hosting, discussion forums, and countless other content and application services.” When broadband customers use Gmail, “no email is ‘stored on an Internet service provider's computers’ … so it is Google that provides the information service,” they said.

The FTC should require edge and core internet providers to offer uniform protections for online consumers, telecom trade groups told the agency Monday. Organizations from across the economy made policy suggestions by the Monday deadline for public comment on upcoming hearings on consumer protection and competition (see 1808200045).

State and local governments and a broad coalition of pro-net neutrality groups and companies said the U.S. Court of Appeals for the D.C. Circuit should overturn the FCC's "internet freedom" order, approved 3-2 last year, which itself overrode net neutrality rules approved just two years earlier. In the opening volley of a major test of Chairman Ajit Pai’s commission decisions, government petitioners said (in Pacer) the D.C. Circuit should find the FCC had no authority to pre-empt state and local police powers and reject the FCC order as an “arbitrary and capricious” departure from 15 years of FCC policy.

The divide over the state of fixed broadband competition and deployment deepened in comments posted Monday for an FCC communications marketplace report due by year-end under the Ray Baum's Act. Several industry commenters cited robust market rivalry and activity benefiting consumers, but consumer advocates generally noted shortcomings in competition, deployment and the data used to measure progress. Parties also disagreed on policy proposals. NCTA and USTelecom painted a positive picture and Incompas offered a circumspect view, in comments posted Friday in docket 18-231 (see 1808170049).

Incumbents and rivals painted different pictures of fixed broadband competition as the FCC prepares a communications market report by year-end required by the Ray Baum's Act. NCTA said competition "is delivering substantial benefits to consumers," bolstered by deregulation, and USTelecom said the fixed broadband market continues to be "dynamic," with increasing competitive alternatives. But Incompas said "data is insufficient to conclude the fixed broadband marketplace is competitive," and urged the agency to dismiss a USTelecom wholesale forbearance petition. Comments were due Friday in docket 18-231.

The FCC adopted rural call completion rules to oversee intermediate providers used by larger telecom companies to complete many calls. "We establish a registry for intermediate providers and require intermediate providers to register with the Commission before offering to transmit covered voice communications," said the unanimous two-order item issued Wednesday in docket 13-39 to implement part of the Improving Rural Call Quality and Reliability Act. The RCC orders took other measures to enhance the effectiveness of call completion rules, and denied a USTelecom petition to stay an April order's "covered provider" duties to monitor intermediate providers, pending completion of act implementation.