Supreme Court nominee Brett Kavanaugh is likely to raise the bar for FCC regulations if confirmed, attorneys said after President Donald Trump nominated the appellate judge Monday evening to replace retiring Justice Anthony Kennedy (see 1807090060). Not only would Kavanaugh be expected to seek to rein in Chevron deference to agency expertise, but he also is seen as a strong advocate of industry First Amendment free-speech rights, based on his lengthy record at the U.S. Court of Appeals for the D.C. Circuit (see 1807040001). He believes broadband is a Communications Act Title I information service, not a Title II telecom service subject to common-carrier regulation. Some on Capitol Hill and among communications groups oppose the nominee.
Supreme Court prospect Thomas Hardiman has ruled for and against FCC rules governing small business bidding credits in wireless spectrum auctions, but never reversed auction results. The judge of the 3rd U.S. Circuit Court of Appeals since 2007 reportedly remained in contention to replace retiring Justice Anthony Kennedy on the high court, along with the D.C. Circuit's Brett Kavanaugh, the 6th Circuit's Raymond Kethledge and the 7th Circuit's Amy Coney Barrett. Kavanaugh has by far the most extensive record on telecom and media law. Kavanaugh -- in dissenting from 2017's USTelecom ruling (here) upholding the FCC's 2015 net neutrality order -- and Kethledge (here) have voiced skepticism about broadly deferring to regulatory agencies on ambiguous statutes under the Chevron doctrine (see 1807040001). President Donald Trump planned to have announced his nominee Monday night.
Satellite and terrestrial interests are lining up on opposite sides over whether increasing interference Globalstar says it's seeing in the 5.1 GHz band is attributable to sharing that band with outdoor Unlicensed National Information Infrastructure operations. That the FCC will act on Globalstar's call for a notice of inquiry on mobile satellite service sharing with U-NII (see 1805220006) has doubters. Michael Calabrese, director of the Wireless Future Program at New America, told us the FCC isn't likely to reopen the 2014 sharing rules governing the band without more direct evidence of harmful interference.
The draft order and Further NPRM on emergency alert system tests and preventing false EAS alerts set for commissioners' Thursday meeting isn’t expected to run into opposition, FCC and industry officials told us Monday. The draft contains rules for authenticating EAS alerts, testing EAS equipment and informing the public, many involving processes and procedures already in use in some capacity by broadcasters and EAS equipment manufacturers, said Sage Alerting Systems President Harold Price. The draft item seeks comment on proposals similar to those advanced by Commissioner Jessica Rosenworcel in reaction to the Hawaii false missile alert (see 1804050055), and is expected to be widely supported, an official told us.
The Broadband Deployment Advisory Committee is slated to meet at the FCC July 26-7 (see 1807060028), with the No. 1 topic recommendations from the Harmonization Working Group, participants said. They said that's going to continue to be challenging. That working group is trying to reconcile a model code for municipalities and one for states approved by BDAC in April. The Ad Hoc Committee for Rates and Fees also will report at the meeting.
Language the Senate Judiciary Committee included in its version of the Music Modernization Act (S-2334) (see 1806280062, 1806110051 and 1806080034) ensures DOJ would have proper oversight if the department were to try to eliminate the ASCAP and BMI consent decrees, said representatives from the MIC Coalition. But a music industry attorney accused Congress of catering to the coalition, pitting wealthy companies against songwriters.
New York City and other commenters asked the FCC to preserve the 4.9 GHz band for public safety use. Comments were due Friday on a Further NPRM on the public safety band, approved 5-0 by commissioners in March (see 1803220037). Commissioners have been frustrated that 16 years after its use was approved for public safety, the band remains underused. The notice was the sixth by the FCC on the band. Comments were posted in docket 07-100.
There’s no legal reason that the FCC should wait for the U.S. Court of Appeals for the D.C. Circuit to rule on the UHF discount before deciding on Sinclair/Tribune, said the broadcasters in a joint opposition filing posted Friday in docket 17-179, responding to petitions to deny their proposed deal (see 1806210071). “Petitioners provide no legal support or precedent for this argument -- as there is none,” Sinclair and Tribune said. The broadcasters also countered attacks on their divestiture plans, local news broadcasts and scale. Delaying decisions over pending court rulings would bring the FCC “to a standstill,” Sinclair and Tribune said. “There has hardly been a time over the past twenty years when there was not an FCC rulemaking pending or subject to appeal.” The D.C. Circuit is expected to rule on the matter in August or September, but the Sinclair/Tribune comment period will wrap up this month.
Though NAB made a single proposal on AM/FM subcaps, the industry is seen as divided on the issue, and a great deal of activity on the matter appears likely as the FCC gets closer to launching the 2018 quadrennial review, radio industry officials said in interviews. NAB recommended allowing groups in the top 75 markets to own up to eight FM stations, doing away with the FM cap in the markets outside the top 75, and entirely abandoning the AM subcap (see 1806180056).
With discussions just getting started on the FCC eighth floor, the C-band NPRM and order teed up for a vote Thursday is expected to get a few changes. FCC Chairman Ajit Pai is considering relaxing the information collection requirements for smaller satellite players that’s part of the item, FCC and industry officials said Friday. The NPRM may also include a few additional questions, prompted by outreach to the FCC, the officials said. The item is expected to win easy approval by commissioners.