The U.S. Supreme Court declined to hear a case Monday, effectively affirming a lower court ruling that a Texas law outlining how video franchises are issued, and intended to streamline the process, is unconstitutional. The Texas Cable Association filed a federal lawsuit against Texas in 2005, alleging the law granted disparate treatment to video providers. The association’s challenges continued through the 5th U.S. Court of Appeals, which ruled the law was unconstitutional on Jan. 13, 2012 (http://xrl.us/bnb8zs). Texas appealed the 5th Circuit’s ruling to the Supreme Court. The high court declining to hear the case will guarantee “a more level playing field” for video operators in Texas, an association spokeswoman said. “More importantly, this critically important case law affirms cable companies’ First Amendment rights and will be cited in the future as legal precedent.” “We will honor the decisions,” said Terry Hadley, communications director for the Public Utility Commission of Texas, “and welcome the cable providers to file at the Commission for franchise authority, based on the decisions, and we'll deal with those."
The 5th U.S. Circuit Court of Appeals affirmed a bankruptcy court’s ruling (http://xrl.us/bnb52b) that Halo Wireless should not escape the more than 20 suits filed in 13 jurisdictions by Texas and Missouri telephone companies, TDS Communications Corp., and several AT&T companies throughout the last year despite filing for Chapter 11 bankruptcy protection last August (http://xrl.us/bnb5wq). The court said the small wireless carrier should not “avoid the potential consequences of a business model it freely chose and pursued.” The local telephone companies objected to Halo’s actions beginning in May 2011 in various complaints filed in state PUCs that question the nature of the services Halo offered. The bankruptcy court ruled last fall that the telephone companies should be allowed to proceed with their litigation but noted that “state adjudicative bodies could not issue any ruling or order to liquidate the amount of any claim against Halo, and that the bodies could not take any action that affects the debtor-creditor relationship between Halo and any creditor or potential creditor.” Halo appealed the ruling, as the other companies contended that Halo engaged “in an arbitrage scheme and that the debtor owes them fees under applicable law and regulations.” Halo has insisted that “because the PUC actions were brought by private parties, they should be subject to the automatic stay.” AT&T has said no difference exists between cases brought by private parties and those brought by PUCs. The court also granted two motions -- one submitted by Halo to strike a brief the Missouri Public Service Commission, not included in the case against Halo yet alleging similar complaints as the other companies, attempted to include -- and another by AT&T requesting the court “take judicial notice of federal court and state commission proceedings and orders that have been referenced and/or discussed in the parties’ briefing in this appeal.” The circuit court granted the second motion with the caveat that AT&T’s input was “not especially helpful” in deciding the case.
The U.S. government must accelerate the release of spectrum through federal sharing scenarios and faster FCC approval of commercial spectrum deals, panelists said Monday at an event hosted by the American Consumer Institute. The FCC’s slow consideration of commercial deals like the proposed Verizon Wireless purchase AWS licenses from SpectrumCo and Cox, harms consumers and retards innovation, they said.
*June 18 American Consumer Institute panel on “looming spectrum crunch,” noon, 2103 Rayburn building -- steve@theamericanconsumer.org
A telco-video provider and a radio station sought FCC waivers of emergency alert system rules for the newer common alerting protocol, which all EAS participants must use to receive and pass along messages by month’s end (CD June 13 p5). Windstream seeks a temporary, “brief” waiver because of an “unexpected delay in delivery of equipment necessary for compliance” until it gets the gear, tests and installs it. Windstream’s Lakedale, Minn., unit “exercised diligence in placing an order for the CAP-to-EAS converter that would be delivered prior to June 1, 2012 to allow sufficient time to install and test the new equipment prior to the implementation deadline,” a filing said (http://xrl.us/bnbvnx). “Unfortunately, Windstream Lakedale recently learned that delivery of its order has been delayed until mid-July, reportedly due to the large number of other EAS participants ordering such equipment for delivery at roughly the same time so as to comply with the Commission’s mandate.” EAS participants and vendors told us of such delays due to some other orders they contend needed to have been placed earlier for gear that converts alerts in the Federal Emergency Management Agency’s CAP format into EAS alerts that radio and TV stations and subscription-video providers send to customers. Kenai Broadcasting wants a waiver for KKNI Sterling, Alaska, because the FM station can’t get Internet service at its transmitter. “Even if KKNI were to acquire and install CAP capable equipment, it would not be able to communicate with the CAP system,” a filing said (http://xrl.us/bnbvn5). The filings were posted Thursday to docket 04-296.
As the telecom industry transitions to Internet Protocol, traditional regulatory approaches will have to be totally rexamined, and government should enact policies that encourage investment in new broadband infrastructure, speakers said Friday at a Wiley Rein workshop on the “IP Transition as Grand Challenge.” Industry stakeholders discussed strategies for the transition away from the TDM, as some wondered what to do about what they called “corrupt” state public utility commissions that want to apply legacy regulations to a world of new technologies.
The FCC approved on a 5-0 vote Wednesday changes to rules designed to push more widespread use of the 4.9 GHz band. The band, once set aside for federal operations, was reallocated to public safety a decade ago, but is little used today. Almost all public safety focus in recent years has been on its fight for a wireless broadband network in the 700 MHz band. Among proposals on which the agency will seek comment is whether to allow commercial use of the 4.9 band by utilities and other critical infrastructure providers and possibly other companies as well.
AT&T CEO Randall Stephenson was sharply critical of the Obama administration’s move to embrace spectrum sharing as the only way of making spectrum now in federal hands available for wireless broadband in the near future. Stephenson, who spoke at the Brookings Institution Tuesday, told reporters later he has deep reservations about spectrum sharing, with its many unknowns. Stephenson also warned that an upcoming incentive auction of broadcast TV spectrum is not a “silver bullet” that will solve the industry’s expected spectrum crunch.
Dissenting on a draft order on special access pricing is not the only option for Republican commissioners concerned about suspending the pricing flexibility triggers. Commissioners Robert McDowell and Ajit Pai could simply decline to vote at all until the commission rules require them to, FCC officials said. If that happens after June 25, the AT&T petitions for pricing flexibility in San Francisco and San Antonio would be “deemed granted,” under the Communications Act. Windstream’s petition for pricing flexibility in Houston, Tulsa, Okla., and Lincoln, Neb., would also be automatically granted in the same timeframe. The FCC’s rules on pricing flexibility say a petition pertaining to special access “shall be deemed granted” unless the Wireline Bureau chief denies the petition no later than 90 days after the close of the pleading cycle. The Republican commissioners have not decided whether to approve the order, dissent, or wait, but they do have substantive concerns about the draft order which would suspend the pricing flexibility triggers, officials said. Suspending the triggers would mean any party that meets them would not be entitled to relief -- and this would have the effect of indefinitely suspending the waiver requests, an FCC official said. Pai is still studying the draft order, and has just begun having meetings with affected stakeholders. Meanwhile, AT&T Senior Vice President-Federal Regulatory Robert Quinn posted a blog entry Friday excoriating the commission for releasing 10,000 pages of documents (http://xrl.us/bnba3p) only after it presumably relied on this evidence in its proposed order. “Why was the evidence not submitted into the record until after the Order went on circulation?” Quinn wrote, arguing the “last minute submission seems intended to thwart” any opportunity to respond to the evidence, and is “at odds with the spirit” of the Administrative Procedure Act. “They dump 10,000 pages into the record after their Order is circulated, giving no time for anyone to consider that evidence, let alone respond. Then they conclude that they now have a sufficient basis to overturn a well-established, judicially affirmed deregulatory decision … this does not represent the gold standard for openness and transparency.”
Pending personnel changes at the FCC will come at what is likely to be a critical time for FCC consideration of Verizon Wireless’s proposed buy of AWS licenses from SpectrumCo and Cox. General Counsel Austin Schlick is scheduled to leave in mid-June and Wireless Bureau Chief Rick Kaplan’s departure will follow soon after. Approval of the deals, though likely with substantial conditions, is expected this summer. Current and former FCC officials said it remains unclear whether the departures will slow a final decision, and if so, for how long.