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.
Sprint and T-Mobile sought New York OK for the wireless acquisition, in a Friday joint petition at the Public Service Commission in docket 18-C-0396. The carriers asked the PSC to approve Sprint becoming an indirect wholly owned subsidiary of T-Mobile, or to rule “that approval for the Indirect CLEC Acquisition … is unnecessary because Sprint Communications, the only involved entity that is a CLEC in New York, will experience a change of control at the holding company level only.” T-Mobile's buying Sprint is expected to face a strenuous fight for approval from federal regulators (see 1807030013).
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.
CTIA said the FCC is in no position to determine if any telecom companies are a threat to U.S. security, and it should work with the Department of Homeland Security, which has more expertise in the area. Other commenters also urged caution. The Rural Wireless Association said the FCC has already chilled investment in rural networks. Reply comments were posted this week in docket 18-89 on the NPRM approved 5-0 by commissioners in April (see 1804170038).
ITTA and members voiced their views to FCC Commissioner Brendan Carr and an aide, who spoke at a membership meeting that included executives of Blackfoot Communications, CenturyLink, Cincinnati Bell, Comporium Communications, Consolidated Communications, Consolidated Companies of Nebraska, Great Plains Communications, Hargray Communications, Ritter Communications and TDS Telecom. "Attendees expressed positions consistent with ITTA’s prior advocacy related to the universal service high-cost program budget for rate-of-return carriers; the need for reforms of the universal service contribution methodology; support for stay of the rural call completion rules adopted in April 2018; proposed Commission action related to 8YY originating access charges; and a proposed Commission rule to withhold federal [USF] disbursements to any USF recipient purchasing equipment or services from any communications equipment or service providers identified as posing a national security risk to communications networks or the communications supply chain," said a filing posted Tuesday in docket 10-90.
Federal appellate judges overturned a ruling that Time Warner Cable violated the Telephone Consumer Protection Act, further undercutting broad definitions of restricted automated telephone dialing systems (ATDS). A district court ruling, which cited a now-vacated FCC decision, was based on an incorrect statutory interpretation, ruled a unanimous three-judge panel of the 2nd U.S. Circuit of Court of Appeals Friday in Araceli King v. TWC, No. 15-2474. The panel noted the district court granted plaintiff King partial summary judgment on a claim that the company knowingly or willfully violated the TCPA by using an ATDS to call King's cellphone 153 times without her consent. The panel said the district court "relied primarily" on a 2015 FCC ATDS definition that was invalidated by the D.C. Circuit in ACA International (see 1803160053). The commission "broadly construed the term 'capacity' and thus extended the TCPA to reach any device that could be modified by software changes to perform the functions of an autodialer," said 2nd Circuit Judge Gerard Lynch's opinion on an appeal by TWC, part of Charter Communications. "In the wake of ACA International, which invalidated that Order and thereby removed any deference we might owe to the views the FCC expressed in it, we must decide independently whether the district court’s broad understanding of the 'capacity' a device must have in order to qualify as an ATDS under the TCPA is a supportable interpretation of the statute. We conclude that it is not." Although not bound by the D.C. Circuit interpretation, "we are persuaded by its demonstration that interpreting 'capacity' to include a device’s 'potential functionalities' after some modifications extends the statute too far," Lynch wrote, vacating and remanding the district court ruling. A King attorney didn't comment Monday.
Tennessee electric cooperatives are bringing fiber broadband to rural areas that earlier were unserved or underserved, after a 2017 state law lifted restrictions, said co-op officials in interviews. In April 2017, Gov. Bill Haslam (R) signed a bill allowing nonprofit electric co-ops to provide retail broadband and video service within their footprints (see 1704270032). Policymakers at state, local and federal levels should look for ways to encourage co-op entry into broadband, said National Rural Electric Cooperative Association CEO Jim Matheson. “Anything that opens up the playing field for all participants to engage is the right thing.”
Local governments cheered Commissioner Jessica Rosenworcel for sharing San Jose's 5G agreements as a model code while the FCC weighs rules to lower perceived local barriers. But carriers and others said San Jose's pact with industry is no model. The commissioner Wednesday released model agreements for small-cell 5G deployment negotiated by San Jose with wireless companies (see 1806150033), amid local government complaints that model codes developed by the FCC Broadband Deployment Advisory Committee favor industry.
VoIP and text messaging should be classified as "interstate, information services, freeing them from unnecessary federal and state requirements," FCC Commissioner Mike O'Rielly told the Cloud Communications Alliance Tuesday night, according to remarks posted Wednesday. "Both services are extremely popular with consumers and businesses, and there is abundant competition both from legacy providers and new over-the-top players to meet the market’s needs. Nonetheless, both services continue to be the target of what I’ve called regulation by analogy." FCC failure to classify VoIP as an information service while subjecting it to some telecom regulation "only served to encourage mission creep by prior Commissions and regulatory ambitious states," some of which are trying to regulate VoIP, he said. A Minnesota case "is being litigated in the courts, and I appreciate that the Chairman and Office of General Counsel were willing to work with me on an amicus filing explaining the legal and practical problems with Minnesota’s approach," he said, lamenting that the agency "must divert staff resources to stamp out efforts that are contrary to the law and common sense." Charter Communications is squaring off with the Minnesota regulator (see 1806120026). O'Rielly said more deregulatory efforts are needed, including in a biennial review of telecom rules to be launched later this year. He said there are areas where the FCC needs to be proactive, including freeing up spectrum for commercial use in high-band and mid-band frequencies. "My focus has not only been on concluding the so-called Citizens Band Radio Service at 3.5 GHz, but also reallocating the C-Band spectrum for additional wireless uses," he said. "This will provide large slices of spectrum for licensed services at 3.7 to 4.2 GHz, while permitting us to allow unlicensed services at 6 GHz. After some initial resistance internally and externally, it is great to see everyone come around to this line of thinking."
An EU plan to require major content-sharing platforms to monitor users' uploads moved forward Wednesday. By 14-9, the European Parliament Legal Affairs Committee (JURI) approved a report responding to a 2016 European Commission proposal for a directive on copyright in the digital single market. The report, by Member of the European Parliament (MEP) Axel Voss, of Germany and the European People's Party, supports the EC's controversial calls for a new right (Article 11, the "neighboring" right, also called the "snippet tax") for online news publishers, and for large platforms to filter users' uploads to prevent copyright breaches (Article 13).