Ireland’s challenge to an EU law requiring retention of Internet and telecommunications traffic data was set for a Tuesday hearing in the European Court of Justice (ECJ). The court likely will annul the directive, finding the European Commission (EC) lacks standing to legislate on processing of personal data, including Internet and telephony traffic data, in the context of public safety and law enforcement, said Ralf Bendrath. A political scientist and privacy policy researcher at Technical University Delft in the Netherlands who serves on the German Working Group on Data Retention, Bendrath hopes the court also weighs privacy and freedom of expression concerns cited in an April brief by 43 civil rights groups, he said. His working group expects the Irish challenge to the measure’s legal basis to kill it, he said. If the ECJ tosses the directive, the EC will be “out of the game,” since it only can only draft legislation for the internal market, Bendrath told us. The Council of Ministers -- EU governments -- theoretically could revive the attempt, but all member countries would have to approve it, he said. The resulting instrument, a framework decision, would be less binding than a directive, a 2005 version of which EU states failed to agree on, he said. “We expect that the EuCtJ will end this forum shopping and policy-laundering,” he said. Since the directive was passed, opposition to data storage and increased surveillance has grown, making consensus in the Council even more elusive, he said. The German Federal Constitutional Court has indicated it will “comprehensively examine” that country’s data retention laws’ compatibility with fundamental German rights, the working group said. “On that basis we are confident that we will win our class action against the permanent blanket registration of our communications behaviour and movements.”
The FCC didn’t overreach its congressional authority in ordering municipalities to expeditiously award franchises to telcos and other new video entrants, the 6th U.S. Appeals Court in Cincinnati ruled Friday. Writing in Alliance for Community Media vs. FCC for a panel of three justices, Judge Guy Cole said the commission “acted well within its statutorily delineated authority in enacting the order,” approved 3-2 by commissioners in December 2006. “There exists sufficient evidence to indicate that the FCC did not engage in arbitrary and capricious rulemaking activity.”
The satellite industry came out in force urging the FCC to let die a plan by the United Telecom Council to let power companies become secondary in the 14 GHz band. The FCC asked whether UTC’s request should proceed to a rule making, and the satellite industry said no. More than a dozen companies and groups with ties to satellite filed in opposition to the request.
The FCC should grant cost-assignment rules forbearance to Embarq and all other price-cap incumbent local exchange carriers that agree to conditions the agency imposed on AT&T, Embarq said in comments on a Verizon and Qwest “me-too” request. In April, the FCC granted AT&T forbearance from cost-assignment rules requiring incumbent carriers to keep records that, among other tasks, separate interstate and intrastate costs (CD April 28 p5). But all of the me-too requests could be rendered moot. Last week, the National Association of State Utility Consumer Advocates challenged the AT&T order, appealing to the U.S. Court of Appeals for the District of Columbia.
The FCC will review rules on closed captioning and access to emergency information to see if they meet the needs of disabled people after the digital TV transition, said a draft commission strategic plan for 2009-2014 released Tuesday. The FCC will need to educate “technical staff” to keep them up-to-date on technology, because of the transition, it said. “Integration of technology platforms makes the transition to digital television and radio technologically challenging and requires coordination among various industries.” Bilateral agreements and treaties will need to be adjusted and new deals will need to be struck with Canada and Mexico to “accommodate the commission’s goals,” the draft said. It said the agency may need more lawyers and consumer advocacy and mediation specialists to handle complaints against broadcasters “in a timely manner,” noting that the number of such complaints has risen. In the public safety arena, the plan commits the FCC to promoting more effective communications for “public safety, health, defense, and other emergency personnel, as well as all consumers in need.” The plan calls for promotion of programs that allow government officials and emergency personnel to receive priority access to communications networks in times of emergency, such as the Telecommunications Service Priority and Wireless Priority Service programs. “Protection of the Nation’s critical communications infrastructure requires that the Commission adopt policies to ensure rapid restoration of communications after disruptions due to any cause,” the plan said. “The Commission shall work collaboratively with industry, other governmental agencies, and foreign counterparts to coordinate and engage in outreach to develop standards for Emergency Telecommunications Services (ETS); to increase awareness of the TSP and WPS programs; to stimulate participation in the TSP and WPS programs by 911 Centers, first responders, and federal, state, tribal, and local governmental agencies; to propose ways of making TSP and WPS participation more affordable; to identify obstacles to TSP and WPS participation; and to recommend changes to overcome such obstacles.” The plan notes that 90 percent of the nation’s communications infrastructure is in private hands and cooperation with industry is critical. In wireless, the strategic plan commits the FCC to “market- oriented spectrum allocation and assignment policies” and “policies that promote efficient and effective use of spectrum.” The FCC also plans to focus on new technologies “such as software defined radio, cognitive radio, dynamic frequency selection, and new protocols.”
A federal appeals court upheld lower court findings that the Florida Public Service Commission incorrectly interpreted FCC Triennial Review orders when it barred commingling of Section 271 unbundled network elements with Section 251 UNEs. The U.S. Court of Appeals for the 11th Circuit in Atlanta was ruling on an interconnection dispute between AT&T and Xpedius Communications that centered on the commingling issue. The PSC in April 2006 ruled commingling of Section 251 UNEs with other wholesale offerings was okay unless the commingling involved UNEs provided under Section 271. The PSC and AT&T argued the FCC’s deletion of a commingling clause in the TRO indicated the FCC didn’t approve of commingling Section 251 and 271 UNEs, and that commingling these UNEs would recreate UNE platform services that the FCC explicitly terminated. AT&T also argued the Section 271 UNEs were no longer wholesale services as defined in the Telecom Act. The 11th Circuit (Case 07-13028) ruled the deleted clause at issue here was removed to avoid confusion between the Section 251 unbundling obligations on all incumbent telcos and the Section 271 unbundling imposed only on Bell companies. The court said other parts of the Triennial Review orders clearly indicated the FCC’s intent to allow commingling of all wholesale services. The court said there was no evidence to suggest that Section 271 UNEs were anything other than wholesale services, and said FCC and state regulations supported classifying them as wholesale. The court also said commingling 252 and 271 UNEs wouldn’t recreate UNE-P service because wholesale rates for the 271 UNEs are deregulated. The court said the original UNE-P service included cost-based regulated rates for all the components, but now only the Section 251 UNEs would be at cost-based rates.
Verizon will be busy in the second half of 2008 bidding for projects under the federal Networx Universal communications program, as the carrier seeks continued growth in its federal business. Speaking at a media event Monday, the company announced plans to bid for the U.S. General Services Administration projects, saying it already has won a $16.4 million Networx contract with U.S. Postal Service. Company executives also addressed uncertainties surrounding the D-block reauction.
Wireless carriers seem to be girding for a court fight over a pending FCC order meant to pave the way for the advanced wireless services 3 auction and requiring the licensee to offer free national broadband. Meanwhile, we have learned, FCC Chairman Kevin Martin has circulated two variants on the AWS 3 order, the second stipulating 20 MHz for the band, the earlier providing 25 MHz. Each has its own interference protections.
Cooperation among stakeholders is the best way to protect children in a wired world, said a panel of industry executives and child protection experts at Tuesday’s PointSmart.ClickSafe summit. The communications industry faces a difficult choice on how much responsibility it should take, said the Progress and Freedom Foundation’s Adam Thierer in response to a question from Comcast government affairs advisor Torie Clarke. The choice encompasses both the content it provides and what tools are offered to parents, Thierer said, and shouldn’t include self-censorship. Thierer said the industry should not have to take responsibility for content.
FCC commissioners are starting to review two related items dealing with what marketing practices by communications companies are allowed under FCC rules, said agency and industry officials. Commissioners face a deadline later this month to vote on an Enforcement Bureau order finding Verizon broke no rules in trying to lure back phone customers defecting to Bright House Communications, Comcast and Time Warner Cable, they said. The order was circulated by FCC Chairman Kevin Martin May 30.