SAN FRANCISCO -- Petitioners challenging the net neutrality order threw a “Hail Mary” in arguing the FCC was statutorily precluded from reclassifying broadband access as a Title II telecom service under the Communications Act, said Steptoe and Johnson attorney Markham Erickson. He represents Incompas (formerly Comptel), Level 3 and Netflix in defending the order. Erickson spoke at a Davis Wright net neutrality seminar Wednesday after the Comptel Plus conference.

CTIA got support from others, including USTelecom, on its petition for reconsideration asking the FCC to rethink the data security requirements imposed on carriers in its latest Lifeline overhaul order. CTIA responded to various public interest groups that said in the initial comment round that the FCC should reject the petition. The American Cable Association earlier filed in support of CTIA. Comments were posted in docket 11-42.

The FCC Friday opened an investigation into the special-access terms and conditions of AT&T, CenturyLink, Frontier and Verizon in the market for business data services. CLECs allege the terms and conditions "are unreasonable, anticompetitive, and lock up the vast majority of the demand for TDM-based business data services -- assertions that the ILECs have disputed," noted a Wireline Bureau order in docket 15-247 designating issues to be investigated.

USTelecom Senior Executive Vice President Alan Roth to retire, effective sometime next year ... OneWeb hires Matthew O’Connell, ex-consultant, as CEO ... Application Developers Alliance names Jake Ward permanent president, and also CEO, succeeding as planned Jon Potter, who stepped down in September ... Electronic Frontier Foundation hires Barak Weinstein, a former EFF legal secretary, as executive assistant ... AnyClip Media, content marketing platform for distributing branded video, hires Gil Becker, ex-myThings, as CEO, succeeding Oren Nauman ... Wilson Electronics hires Curtis Burkhart, ex-SureCall, as director-enterprise sales ... Twitter hires Omid Kordestani, ex-Google, as executive chairman.

The National Institute of Standards and Technology’s Cybersecurity Framework has bolstered efforts to protect critical infrastructure against cyberattacks, but there's much more to do, government and industry officials said Wednesday at a USTelecom forum. Department of Commerce officials said the NIST framework should be updated to incorporate lessons learned, and a former FCC and Department of Justice official said Congress needs to enact cybersecurity legislation to give industry liability protection and facilitate information sharing. A Commerce official also said the administration was working to adopt a new safe harbor for data transfers after a European court struck down the previous safe harbor arrangement (see 1510090023).

President Barack Obama appoints Raymond Dolan, Sonus Networks, to President’s National Security Telecommunications Advisory Committee ... Communications Engineering Inc. (CEI) promotes Michael Jones to vice president-sales and marketing ... North American Numbering Council appointees: Chair Betty Ann Kane, D.C. Public Service Commission; Marilyn Jones, FCC Wireline Bureau, designated federal officer; and members ATL Communications' Aelea Christofferson, AT&T's Henry Hultquist, Bandwidth.com's Greg Rogers, CenturyLink's Mary Retka, Comcast's Valerie Caldwell, the Competitive Carriers Association's Rebecca Murphy Thompson, Comptel's Alan Hill, Cox Communications' Jose Jimenez, CTIA's Matthew Gerst, 800 Response Information Services' David Greenhaus, Level 3 Communications' Scott Seab, with NARUC's Paul Kjellander (Idaho), Lynn Slaby (Ohio), Crystal Rhoades (Nebraska), Karen Charles (Massachusetts), Scott Rupp (Missouri), National Association of State Utility Consumer Advocates' Helen Mickiewicz, NCTA's Jerome Candelaria, NTCA's Stephen Pastorkovich, SIP Forum's Richard Shockey, SMS/800's Gina Perini, Sprint Nextel's Rosemary Emmer, T-Mobile USA's Michele Thomas, USTelecom's Thomas Soroka, Verizon's Ann Berkowitz, Vonage's Brendan Kasper and XO Communications' Tiki Gaugler

Competify members urged the FCC to rein in Bell special-access rates and practices they say are anti-competitive. Speaking on a press call Thursday, representatives of Sprint, CLECs and others said they believe industry data collected by the commission will show many broadband business markets remain dominated by AT&T, CenturyLink and Verizon special-access wholesale and retail services. The commission should prevent the Bells from using their leverage to extract inflated rates from rivals and business customers, including through “lock-up” contracts that thwart competitive responses, coalition members said.

The FCC net neutrality order violated broadband provider free-speech rights, argued Alamo Broadband and Daniel Berninger, who are among the petitioners challenging the order in the U.S. Court of Appeals for the D.C. Circuit. “The FCC admits that broadband providers engage in and transmit speech, but contends the First Amendment does not protect these activities. That position is indefensible,” said Alamo, a small broadband provider, and Berninger, a network engineer, in their reply brief Monday in USTelecom v. FCC, No. 15-1063.

CenturyLink became the latest ILEC entity to attack CLEC special access arguments about FCC discretion to regulate incumbent telco business market services. In a filing posted Monday in docket 05-25, CenturyLink said Birch Communications, BT Americas and Level 3 effectively had asserted the FCC has "virtually limitless authority to impose every conceivable type of wholesale regulation of ILEC business data services," including by reversing enterprise broadband forbearance relief, scrapping DS1 and DS3 pricing flexibility, reimposing price-cap regulations and reducing price-cap rates. The CLECs believe the FCC can "adopt whatever special access regulation it wants -- regardless of the evidence, or lack thereof -- as long as it mouths the necessary findings, based on its status as an expert agency," said CenturyLink. "In other words, the Joint CLECs suggest, the results of the special access data collection are secondary: the Commission can and should decide now (before even receiving public comment on the special access data) to impose utility-style regulation on ILEC special access and enterprise broadband services, knowing that it can later construct the justifications necessary to have that decision upheld by a reviewing court. The Commission should reject the Joint CLECs’ cynical arguments, which are both wrong and flatly inconsistent with the Commission’s stated intention of employing a data-driven review of its special access regulations." The CLEC proposals would lead to the FCC being reversed in court and "years of investment-choking regulatory uncertainty," CenturyLink said. USTelecom and AT&T previously made similar filings (see 1509250043 and 1509290036).

USTelecom and others argued the FCC was precluded from reclassifying broadband as a Title II telecom service (under the Communications Act) by the 1996 Telecom Act, in a reply brief to the U.S. Court for Appeals for the D.C. Circuit. The D.C. Circuit is reviewing their petition challenging the agency net neutrality order (USTelecom v. FCC, No. 15-1063). "At its core, the Order rests on the claim that Internet access is no different from voice telephone service and that the FCC therefore has authority to subject them both to Title II’s common-carriage requirements," said USTelecom, joined by the American Cable Association, AT&T, CenturyLink, CTIA, NCTA and the Wireless Internet Service Providers Association. "But Internet access, unlike voice telephony, necessarily 'offers' a 'comprehensive capability for manipulating information' -- namely, data stored on distant computers -- which is a classic information service exempt from common carriage under a long-settled regulatory regime," they said. "In 1996, Congress codified that regulatory regime and thereby precluded the FCC from regulating such services under Title II," their brief said, adding: "The FCC defends its upheaval of the regime with little more than a plea for deference, based on an aggressive misreading of Brand X," the Supreme Court's ruling deferring to the FCC's previous finding that cable broadband/modem service is a Title I information service. "But Brand X involved classification of a transmission link to Internet access functions, whereas the Order reclassifies Internet access service itself, which everyone in Brand X agreed is an information service. And, to avoid reclassifying many other Internet players as common carriers, the FCC has done something else the statute forbids: it classifies the same computer-processing and storage functions in opposite ways -- as 'telecommunications services' or 'information services' -- depending solely on whether they are provided by petitioners or third parties," the brief said.