FCC Chairman Ajit Pai appears poised to propose scrapping net neutrality regulation and broadband classification as a Communications Act Title II telecom service -- as long expected (see 1708310016) -- parties on both sides of the debate told us Friday. Pai is expected to circulate a draft order by Thanksgiving for a Dec. 14 vote that would return broadband to a less-regulated Title I information service classification. Some suggested the draft would also eschew Telecom Act Section 706 rulemaking authority, eliminate core open internet rules and pre-empt state broadband regulation.
ATSC 3.0 is proving to be a complication in the current cycle of retransmission consent negotiations, with some stations potentially deploying the next-generation standard over the next three years, an FCBA CLE heard on the eve of FCC members 3-2 OK'ing the standard (see 1711160060). One complication on retrans is no one knowing what the new system will look like, said broadcast lawyer Dan Kirkpatrick of Fletcher Heald. He said lack of clarity makes negotiating for rights or compensation challenging. Broadcast lawyer Jack Goodman said implementation will change retrans negotiations dynamics, since standard contractual language now says broadcasters can't use cable operators' interactive plant, but one promise of 3.0 is interactive programming.
House Communications Subcommittee members universally lauded potential benefits of deploying 5G technology during a Thursday hearing, with members of both parties emphasizing the need for the U.S. to take a leading role in advancing the technology. But the hearing also featured debate on proposals on Capitol Hill, the FCC and elsewhere to pre-empt state, local and tribal antenna siting rules, as expected (see 1711150052). Senate Commerce Committee staffers are evaluating a draft bill from Chairman John Thune, R-S.D., and Communications Subcommittee ranking member Brian Schatz, D-Hawaii, that would ease siting requirements (see 1710310057).
The FCC, having made 1,700 MHz additional high-band spectrum available for mobile use Thursday, plans to initiate a third spectrum frontiers proceeding in the first half of 2018 that will look at the 23, 42 and 50 GHz bands and tee up the 26 GHz band, Commissioner Mike O'Rielly said as commissioners approved 4-1 the latest spectrum frontiers NPRM and Further NPRM. Commissioner Jessica Rosenworcel said the agency needs to speed up the path for 5G implementation and laid out a five-point plan: “We are simply not moving fast enough."
The FCC took actions intended to spur wireline and wireless broadband deployment, some more controversial than others, at Thursday's monthly meeting. Commissioners voted 3-2 to adopt a combined order, declaratory ruling and Further NPRM that Republicans said were aimed at removing barriers to wireline infrastructure investments and Democrats said would remove important consumer and competition safeguards as industry transitions from copper-based networks to fiber-based IP systems. They voted 5-0 as expected (see 1711150015) to approve a wireless order commissioners said would make it easier to replace utility poles without compromising National Historic Preservation Act mandates.
FCC commissioners voted 3-2 to approve a Lifeline item to begin to revamp again the low-income subsidy program, going in a different direction than a 2016 overhaul. Chairman Ajit Pai and Republican colleagues said the combined orders and notices would crack down on program abuse and better target funding to those consumers and areas that really need it, while promoting facilities-based deployment. Dissenting Democrats said the actions and proposals would effectively gut the program and widen the digital divide. Congressional Democrats also hammered the moves.
DOJ will increase scrutiny of takeovers that offer to change corporate behavior rather than selling off assets to address competitive concerns, Antitrust Chief Makan Delrahim said Thursday at an American Bar Association meeting. Delrahim said so-called "behavioral remedies" included in several recent transactions such as Comcast buying NBCUniversal, Google/ITA and LiveNation/TicketMaster to address anticompetitive concerns may have a place "if it will completely cure the anticompetitive harms." But a large body of legal research over years provided evidence such an approach creates an ongoing regulatory function to monitor conditions that runs counter to allowing the market to function freely, Delrahim said. The remarks could bode trouble for AT&T/Time Warner, experts told us.
The FCC approved its ATSC 3.0 order 3-2 Thursday over the objections of Democrats, as expected (see 1711140053). Commissioners Jessica Rosenworcel and Mignon Clyburn were highly critical of 3.0's transition plan order, which was little changed from what circulated last month. The plan is “cavalier” about possible consequences for consumers and MVPDs, Rosenworcel said. “Not ready for prime time,” said Clyburn. The order intentionally doesn't address every aspect of the new standard, Commissioner Mike O’Rielly said. “Many questions remain,” he conceded. “This won’t be the last time we address ATSC 3.0,” he said.
FCC relaxation of media ownership rules is an industry “holiday wish list” and won’t survive a legal challenge, said Commissioner Mignon Clyburn in her dissent on the order, which was approved on a 3-2 party-line vote Thursday, as expected (see 1711150054). “I vociferously dissent and look forward to the day when the court issues a decision to right this sad wrong,” Clyburn said. Commissioner Mike O’Rielly said he had no doubt the new standard will end up back before the 3rd U.S. Circuit Court of Appeals. That court would be “hard pressed” to find the moves aren’t supported in the record, he said. O’Rielly said he hopes the FCC will appeal if the 3rd Circuit again strikes down rules.
The White House is willing to yield to demands for changes to Section 702 Foreign Intelligence Surveillance Act authority, which expires at year’s end, Cybersecurity Coordinator Rob Joyce said Wednesday at an Aspen Institute event. Joyce announced transparency measures for a program that gathers information on vulnerabilities resulting in “zero day” flaws in products and services. The software industry and some privacy groups welcomed the changes to the Vulnerabilities Equities Process (VEP) Charter as a step toward increasing public understanding of cyber threat information the government holds. Over the past few months, the administration developed a "rigorous standard" that will improve the process and release key detail, Joyce said.