The White House wants FCC Commissioner Jessica Rosenworcel to have another term as FCC commissioner. But Rosenworcel, a Democrat, may not have an entirely speedy or easy confirmation from the GOP-controlled Senate, though some observers believe derailing her reconfirmation could backfire on Senate Republicans if attempted. Her term expires June 30, and she will be empowered as a commissioner through the end of next year if there is no Senate action.

The FCC Wireline Bureau is seeking comment on Granite Telecommunications' request for FCC clarification of Bell Operating Company (BOC) Section 271 duties to combine unbundled network elements at wholesale discounts and commingle them with other services. Comments/petitions are due June 15 and replies/oppositions are due June 30, said a bureau public notice in docket 15-114. In a May 4 petition for a declaratory ruling, Granite, a CLEC with business customers, asked the FCC to remove uncertainty about BOC duties "(1) not to separate unbundled network elements ('UNEs') provisioned pursuant to Section 271(c)(2)(B)(iv)-(vi) of the [Communications] Act; (2) to combine such UNEs; and (3) to commingle such UNEs with other wholesale services." Granite said a court-driven FCC rollback in ILEC unbundling duties under Section 251, the absence of FCC rules on BOC Section 271 UNE duties, and a recent USTelecom filing -- asserting the BOCs don't have to combine Section 271 UNEs -- "have created uncertainty as to the BOCs' obligations regarding the separation, combination, and commingling of Section 271 UNEs." Citing a Section 202(a) prohibition against unreasonable discrimination and a Section 201(b) prohibition against unjust and unreasonable practices, Granite asked the FCC (1) to prevent BOCs from separating already-combined UNEs unless requested by a CLEC or unless the BOCs have a reasonable basis for doing so; (2) to require BOCs to combine Section 271 UNEs at the request of CLECs unless the BOCs have a reasonable basis for refusing to do so; and (3) to require BOCs to commingle, or allow CLECs to commingle, Section 271 UNEs with wholesale services obtained from ILECs unless the BOCs have a reasonable basis for refusing to do so. Granite said the BOC Section 271 obligations to provide competitors with unbundled access to local loops, transport, and switching are ongoing and independent of ILEC Section 251 unbundling duties. "[I]n the absence of Section 251 unbundling obligations for local switching and shared transport, the Section 271 competitive checklist provides the only regulatory compulsion for BOCs to provide these network elements on an unbundled basis today," Granite said.

Alamo Broadband and Full Service Network won't oppose the FCC's motions to transfer their net neutrality legal challenges to the U.S. Court of Appeals for the D.C. Circuit, where the agency and most industry parties want the various challenges heard (see 1505120044). In a court filing, Alamo told the 5th Circuit, where it had mounted its challenge, that it agreed to the transfer. Full Service Network was expected to tell the 3rd Circuit, where it filed, that it won't oppose the transfer, an FSN attorney told us. Both responses were due Thursday. The lack of opposition to the transfers appears to clear the way for the cases to be consolidated at the D.C. Circuit. Meanwhile, a panel of the D.C. Circuit set a May briefing schedule on the telco/cable request that key parts of the FCC's net neutrality order be stayed pending further review. The court gave the FCC and Department of Justice until noon May 22 to file a response, and petitioners until 4 p.m. on May 28 to file a reply. USTelecom, CTIA, NCTA and others asked the court to rule on their stay motion before June 12, the date the order would take effect (see 1505130049). The industry parties have asked the court to stay the order's Title II reclassification of broadband Internet access and its Internet conduct standard.

Various telecom and cable groups along with carriers asked the U.S. Court of Appeals for the D.C. Circuit to stay key parts of the FCC net neutrality order, pending further review, or at least expedite consideration of their underlying legal challenges. In a joint motion Wednesday, the American Cable Association, AT&T, CenturyLink, CTIA, NCTA, USTelecom and the Wireless Internet Service Providers Association asked the court to stay the order’s reclassification of broadband Internet access under Communications Act Title II and its Internet conduct standard. They asked the D.C. Circuit to act before June 12, the order’s effective date, and if the court couldn’t do that, they asked for an administrative stay. NCTA and USTelecom noted that they didn't seek a stay halting net neutrality rules that prohibit Internet blocking, throttling and paid prioritization. The petitioners said the FCC was asserting “unprecedented regulatory power over the Internet” in a “sharp about-face” that “arrogated to itself breathtaking authority over the most transformative technology in living memory.” By reclassifying broadband Internet access as a Title II telecom service, the FCC was subjecting broadband to a regime designed for railroads, not social networking and streaming video, they said. Petitioners said they were likely to succeed on the merits, arguing that broadband fit squarely under the 1996 Telecom Act’s “information service” definition that can’t be regulated as common carriage under Title II and that expressly includes a service “that provides access to the Internet.” Noting the 2005 Supreme Court Brand X ruling, the petitioners said, “[B]y classifying Internet access as exclusively a telecommunications service with no information service offering, the FCC has adopted a position that all nine Justices in Brand X rejected. And it has turned Justice [Antonin] Scalia’s analogy on its head. Where Justice Scalia saw the relevant offerings as making pizza (information service) and delivering it (telecommunications service), the FCC pretends the pizzeria offers only delivery, and does not make pizza at all.” The petitioners said Title II was “doubly unlawful” for wireless, given its statutory protections from common-carrier regulation. They said the FCC, “in its headlong rush to implement this regulatory sea change at the President’s urging -- committed a string of glow-in-the-dark APA [Administrative Procedure Act] violations, any one of which would suffice to invalidate the order.” Shifting to alleged harms, the petitioners said “public utility regulation” of the Internet would impose “immense burdens and costs” on petitioners and their members, inviting a “torrent of enforcement proceedings and litigation,” and forcing “providers to undertake costly reviews of countless business practices.” Without a stay, providers face many millions of dollars in unrecoverable losses,” making it in the public interest to block the broad regulatory regime before it takes effect, they said. The agency is confident the D.C. Circuit will deny the stay request, a spokeswoman emailed us. "The Open Internet Order provides clear and defensible rules of the road that will ensure enforceable protections for consumers and innovators online. Petitioners have not demonstrated that they will suffer irreparable injury if the order takes effect, and the public interest clearly favors allowing the Open Internet Order to take effect on schedule.”

Cox Communications, rural telecom groups and their cable and telco allies pushed back against opposition to their petitions for reconsideration of parts of the FCC December E-rate overhaul, in comments posted in docket 13-184 Tuesday. Cox urged the FCC to provide "robust safeguards" overseeing school and library E-rate applicants seeking to self-provision broadband or to light up dark fiber. The National Exchange Carrier Association, NTCA and WTA cited procedural concerns in calling on the FCC to back off imposing mandatory bidding requirements on rural telcos for providing broadband to anchor institutions with support they fear could be inadequate. USTelecom also recently backed Cox (see 1504300056), while T-Mobile this week, backed by other wireless parties, urged the FCC to make wireless-friendly changes to the E-rate rules that it said were unopposed (see 1505120020).

The U.S. Court of Appeals for the D.C. Circuit is likely to review legal challenges to the FCC net neutrality order despite petitions filed in two other circuits, though it’s possible another circuit could assert jurisdiction, which could raise uncertainties, attorneys following the case told us. The D.C. Circuit is where the FCC and most of the petitioners want the case heard, where initial petitions were consolidated, where stay requests are expected to be filed, and where previous net neutrality rulings occurred and provide precedent, they said.

The FCC Friday formally denied two petitions asking the agency to stay the February net neutrality order. They were filed by AT&T, CenturyLink, CTIA, USTelecom and the Wireless ISP Association, and also by NCTA and the American Cable Association. That development was expected (see 1505010059). The order was signed by the chiefs of the Wireline and Wireless bureaus. “Petitioners have failed to demonstrate that they are likely to succeed on the merits,” one of the things the FCC looks at in deciding whether to grant a stay, the agency said. The FCC also denied an argument that industry faces “irreparable harm” if a stay is not granted. “Petitioners’ broad arguments regarding an environment of uncertainty ignore that they already were subject to a case-by-case standard governing their conduct,” the order states. “For over two years while the 2010 Open Internet rules were in effect, all fixed broadband providers were subject to a prohibition on ‘unreasonable discrimination.' Moreover, all [broadband Internet access service] providers are subject to general legal standards under other federal and state laws and regulations that govern their conduct with respect to protecting consumers and competition.”

Local number portability administrator incumbent Neustar asked the U.S. Court of Appeals for the D.C. Circuit for expedited briefing and oral argument on its challenge to the FCC order giving Telcordia the inside track to winning the next LNPA contract. In a motion filed Thursday, Neustar said that under the order, Neustar, Telcordia, the telecom industry and others will "immediately begin incurring substantial costs" to make the transition to the new LNPA, with the costs accelerating as the handover nears. "In the event this Court grants Neustar’s petition for review, expedition will reduce the potential waste of resources associated with work on a transition that may never occur," Neustar said. Neustar said the FCC and Department of Justice plan to oppose the motion, while would-be intervenors CTIA and USTelecom are taking no position, and Telcordia hasn't decided its stance. CTIA and USTelecom are siding with the FCC and Telcordia on the underlying legal challenge.

Telecom opponents of the FCC net neutrality order asked the U.S. Court of Appeals for the D.C. Circuit to let them weigh in together, at greater length, in the main challenge to the rules, as they seek a partial stay of the order. CTIA, USTelecom, the Wireless ISP Association, AT&T and CenturyLink asked Thursday that they be allowed to file a single 35-page motion, plus an additional 15 pages at the court’s discretion, rather than separate 20-page motions. Earlier, the five asked the FCC for a partial stay of the order, though industry observers say that request will likely be denied (see 1505010059).

FCC Chairman Tom Wheeler may use an NPRM the agency must begin by Sept. 4 on retransmission consent as a way to crack down on what some see as abuses in deals for TV stations to be carried by multichannel video programming distributors, lawyers on all sides of the issue said in interviews Thursday. A day before and toward the end of his speech at INTX, Wheeler mentioned the upcoming proceeding. Some read that as signaling he's open to changing retrans rules, after a previous look at the rules under then-Chairman Julius Genachowski didn't advance past an NPRM. Others noted that, given the partisanship seen on retrans, where some Republicans have been hesitant to regulate, Wheeler may not try to change rules and if he did would have to rely on both of the FCC's other Democratic members agreeing.