The Association of Global Automakers (AGA) filed a paper at the FCC warning that if the agency moves forward on allowing the use of high-power, unlicensed U-NII devices in spectrum immediately adjacent to the 5.850-5.925 GHz band, it could make automotive safety technology there all but useless. “Global Automakers and others maintain that this issue has not been adequately studied by the FCC,” AGA said in reply comments filed at the FCC, posted Wednesday in docket 13-49. “Oppositions to Global Automakers’ Petition do not prove otherwise.”
The FCC lacks Communications Act Section 706 authority to pre-empt state laws that pose obstacles to municipal broadband projects, said groups including the National Conference of State Legislatures (NCSL). USTelecom flipped the debate, arguing that the agency should use the pre-emption authority it does have to remove local governments’ barriers to private investment.
The FCC lacks “legal or constitutional authority” to pre-empt state municipal broadband laws, said American Commitment, a Washington-based free market organization, in comments (http://bit.ly/1tZPAhe) posted Thursday in dockets 14-115 and 14-116, in advance of the end of the comment period Friday night. The Wireline Bureau declined to extend the deadline. (See separate report above in this issue.) Under the 2004 case Nixon v. Missouri Municipal League, the FCC would need express statutory authority from Congress to pre-empt the laws, because the commission would “interpose ‘federal authority between a State and its municipal subdivisions’ and alter ‘a State’s distribution of its own power,'” the organization said. Communications Act Section 706 does not mention pre-emption authority, the filing said. NetCompetition also cited Nixon v. Missouri Municipal League in comments, said the organization’s blog (http://bit.ly/YYKiZP). The Supreme Court rejected the use of Title II as authority to pre-empt state prohibitions of localities offering telecom services, so “it is hard to see how the FCC’s new-found, ...Section 706 authority would be sufficient to trump the Supreme Court’s defense of state’s rights in the Constitution,” the post said. NetCompetition also said that municipal broadband networks are anti-competitive, arguing “when governments try and offer a similar service that private companies have long provided consumers, these governments effectively are opposing and undermining private companies in the marketplace -- not ‘competing’ with them.” The FCC does have authority to pre-empt the laws, said Momentum Telecom (http://bit.ly/1plUrL5). Section 706 gives the commission and the states “broad authority and discretion to determine when, where, and how to ensure that ‘all Americans have access to advanced telecommunications capabilities on a reasonable and timely basis.'” The FCC should grant the petitions by Wilson, North Carolina, and the Electric Power Board of Chattanooga, Tennessee, to pre-empt municipal broadband laws in their respective states, said Holly Springs, North Carolina (http://bit.ly/1q8aFH1). The town council in 2013 authorized building a municipal network, and it was completed earlier this year, the town said. “Already, the network has succeeded in providing stronger, more reliable connectivity between public buildings and community anchor institutions.” Holly Springs said the network supports a public Wi-Fi network, and a private provider leases space on the network “to facilitate potential economic development by providing services to businesses.” The town “is an example of a community where private sector entities like Google and AT&T have expressed no interest or willingness at this time to build fiber infrastructure,” it said. “Because of our robust fiber network, the Town is palatable for new businesses and attractive to researchers.” Despite those gains, the North Carolina law limits the public-private partnerships the town is able to explore “due to the stymieing effect of North Carolina anti-municipal broadband legislation,” Holly Springs said.
The FCC could wind up creating a bigger public relations problem than it solves when a series of open Internet roundtables kick off at headquarters Sept. 16, industry officials said. Groups like Free Press and Public Knowledge, which have raised concerns about net neutrality rules, said the roundtables aren’t enough and the FCC needs to take public comment across the U.S. A senior FCC official said Wednesday the agency is doing all it can to solicit comment and will not hide from critics.
The special access data gathering effort that the FCC last week (CD Aug 19 p2) said it would begin soon should produce a lot of data that may help resolve disputes, said industry lawyers in interviews this week, but they said commission staff have a lot of work ahead. It’s a “really extraordinary” amount of data about the prices and connections for every building across the nation, said Thomas Jones, a Willkie Farr attorney who has represented competitive carriers in urging some form of rate regulation for the service.
Critics of Comcast’s deal to buy Time Warner Cable are making “discredited arguments” that “don’t have any merit” said Comcast Executive Vice President David Cohen in a blog post responding (http://bit.ly/1p9Ffk7) to comments filed in docket 14-57 Monday (http://bit.ly/1wthpno). The deadline was 11:59 p.m. for comments on the transaction.
FCC proceedings on petitions to pre-empt North Carolina and Tennessee laws on municipal broadband are likely to become a showdown about the extent of the commission’s authority under Communications Act Section 706 and the applicability of the Supreme Court’s 2004 decision in Nixon v. Missouri Municipal League, industry observers told us. The FCC is reviewing pre-emption petitions from Chattanooga, Tennessee, and Wilson, North Carolina. Matthew Berry, chief of staff to FCC Commissioner Ajit Pai, said in a speech Wednesday that the FCC’s authority to pre-empt state laws municipal broadband laws under Section 706 was weak and that the precedent the Supreme Court set in Nixon would likely doom pre-emption in court (CD Aug. 21 p10).
In the final days before the end of the reply period for the selection of the Local Number Portability Administrator Friday night, Neustar is trying to hold on to the contract by arguing there could be national security risks should the FCC award it to rival Telcordia. The FCC should pause and issue another NPRM to examine how well equipped the companies are in protecting the security of the network from infiltration and in working with law enforcement, Steve Edwards, Neustar senior vice president-data solutions, told us. He noted that Telcordia’s parent company, Ericsson, is a Swedish company. “Foreign ownership increases the risks,” said Edwards, who added that it “raises the potential that software codes could be written by employees and consultants overseas.” In the interim, Neustar should continue as the LNPA, he said.
The nearly 200 challenges filed with the FCC over whether thousands of individual census blocks should be eligible for Connect America Fund Phase II funding were fueled in part by attempts by companies to protect their own turf from competitors, or to be able to tap into the $9 billion pot to move into other areas, said industry lawyers in interviews this week. Resolving all the challenges struck one attorney as “a big job.” But an FCC spokesman said the agency still believes it will be able to move ahead with its plans to begin making offers to companies to serve high-cost areas in their state in return for funding toward the end of the year.
After a longer-than-usual Office of Management and Budget review, the FCC said in a public notice (http://fcc.us/1mcTAGy) Monday it received OMB signoff to begin collecting data on special access services and will begin to to do so immediately, 20 months after the commission approved the effort (CD Dec 13/12 p5).