U.S. Supreme Court justices hammered attorneys with questions as they heard 2 complex cases Wed. challenging rights of federal courts to review interconnection enforcement decisions by state PUCs. Legal issues dealing with states rights and Constitutional questions piqued justices’ interest as they questioned nearly every aspect of 2 cases. Cases, involving Md. PSC and Ill. Commerce Commission (ICC) center on 2 basic issues: (1) Whether U.S. Constitution’s sovereign immunity provision bars companies from challenging state PUC decisions in federal court. (2) Whether federal courts can hear some challenges to PUC interconnection decisions but not others. States argued that Telecom Act called for federal court review only of initial PUC action approving interconnection agreements but not when PUC made subsequent decisions to enforce that original ruling.
AOL-Time Warner (AOL-TW) CEO Gerald Levin announced Wed. he would step down next May and would be succeeded by co-COO Richard Parsons, who has key attribute for job: He knows ins and outs of Washington. In May, President Bush appointed him co-chmn. of President’s Commission to Strengthen Social Security. Commission, which also includes former N.Y. Sen. Patrick Moynihan (D), is widely expected to recommend privatizing at least part of fund. Parsons’s experience in Washington dates back to 1970s, when he was White House aide and counsel to President Gerald Ford and Vice President Nelson Rockefeller.
House Judiciary Committee and House Telecom Subcommittee took turns Tues. grilling DBS executives on why govt. should approve EchoStar-DirecTV merger. In Judiciary Committee hearing, EchoStar Chmn. Charles Ergen said merged DBS provider entity would provide significant benefits, saying it would create viable nationwide competitive alternative to cable while freeing up spectrum that could be used for rural broadband deployment: “Without this merger we won’t see broadband development in rural America in our lifetime.” He played down criticism that merger would create DBS monopoly. Considering high rates of cable penetration across nation, even merged entity “hardly makes us a monopoly” in multichannel video programming distribution market, he said. Ergen also said new company still would face competition from C-band satellite service providers, contention that Chmn. Sensenbrenner (R-Wis.) said was inconsistent with statements Ergen made last year in federal court.
FCC probably doesn’t even have enough evidence to justify notice of inquiry on broadcast-newspaper cross- ownership rules, NAB said in comments on rulemaking (MM 01- 235). Broadcasters said FCC never had been able to show competitive harms from cross-ownership, so burden of justifying retention of rule “clearly lies with the Commission.” Goal of diversity of voices “reflects an outmoded regulatory philosophy of promoting the maximum diversity of ownership at all costs,” NAB said, and burden of justifying rule was increased by First Amendment implications. NAB also said any justification for ban had been reduced by expansion of information outlets and easing of other ownership rules, and that cross-ownership actually could increase news, information and programming options by allowing pooling of resources. Not surprisingly, Newspaper Assn. of America also supported eliminating rule, saying ban “serves no legitimate purpose in the modern media marketplace.” Group said “explosive” growth in media outlets justified eliminating ban and repeal “would lead to significant efficiencies and operational synergies” that would “benefit both consumers and advertisers.” Pooling resources would allow tailoring news content to different media, newspaper group said, and wouldn’t lead to “any material reduction in viewpoint diversity.” Consumer, civil rights and media public interest groups called on FCC Mon. to maintain limits on broadcast-newspaper cross-ownership. Groups cited study that said media diversity was at risk from mergers and acquisitions. They warned of dire consequences if FCC eliminated its long-standing prohibition against common ownership of newspaper and TV station in same market. Filing called for new policies “to open communications wires and the airwaves to more independent voices, in order to preserve our nation’s commitment to maintaining institutions and market forces that promote a robust democracy.” Document, more than 100 pages long, represented views of Consumer Federation of America, Consumers Union, Center for Digital Democracy, Civil Rights Forum, Leadership Conference on Civil Rights and Media Access Project. Filing cited 1945 Supreme Court ruling that First Amendment “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” That principle will be jeopardized if broadcasters are allowed to own or be owned by newspaper in same community, filing said. Claims that Internet was viable news and information alternative ignored possibility that same entities could dominate Internet as well, filing said. “A small number of giant corporations interconnected by ownership, joint ventures and preferential deals now straddle broadcast, cable and the Internet,” filing said.
Deputy Defense Secy. Paul Wolfowitz asked Commerce Secy. Donald Evans to advocate delay in final regulatory decision on ultra-wideband (UWB) until “at least February.” Expectation of some industry observers had been that UWB could be taken up at FCC’s Dec. 12 agenda meeting, although timing was unclear because NTIA still must submit final input to FCC on rulemaking, sources said. FCC Chmn. Powell told House Appropriations Subcommittee earlier this year that Commission could issue UWB rulemaking by year-end, although he said at time that agency was awaiting final evaluation from govt. on UWB interference issues (CD May 23 p7). In letter to Evans last week, Wolfowitz said DoD’s review of preliminary draft of FCC’s UWB rules “indicates they will not provide adequate protection for GPS and other critical DoD systems… They also raise significant national spectrum management policy issues such as the intentional operation of nonlicensed devices in nationally restricted bands and in internationally designated passive-only bands.” Several sources said item on UWB began circulating on 8th floor at FCC earlier this week.
James Bradshaw, FCC Mass Media Bureau expert on electronic filing, reported Wed. to lawyers and engineers on activity by agency in last 12 months that he said “enhances and improves” system. But, when it came time for questions at Assn. of Federal Communications Consulting Engineers (AFCCE) lunch, he faced complaints that system still had many bugs. “It’s going to be interesting,” as FCC attempts to fix glitches, he said, conceding “we've been struggling internally.” One recurring complaint was that electronic filing system often went down on Fri. evening and there was nobody to put it back online until Mon. “That’s fairly typical,” Bradshaw said, but on filing deadlines on major issues Commission keeps someone in place until around 11 p.m. to make sure system is operating properly. Commission has “drastically reduced” number of fee payments that don’t get associated with proper filings -- as well as attachments and exhibits that get misfiled, he said. Parties are permitted 2-week delay in paying fees after application is filed, Bradshaw said, and things move much faster if payment is made by credit card. Where fee payments formerly were handled manually (resulting in delays), they now are handled electronically and can go on public notice day after fee is received, he said. Starting Mon. (Dec. 3), he said, all electronic filings must be made using registration number (FRN) assigned by FCC. Also, he said, Commission this week added ability for parties to make AM inquiries online to go with electronic system already in place for TV and FM. Bradshaw is deputy chief-engineering of Audio Div. of Mass Media Bureau.
Advanced Communications (AC) is continuing legal fight to win extension of time to launch and operate DBS satellite. Company based in Little Rock filed appeal in U.S. Appeals Court, D.C., to rescind Oct. 18, 1995, FCC order that denied it extension. Company is seeking redress in court after losing lower court battle. Respondents in case include DirecTV, Dominion Video, EchoStar, MCI and U.S. Satellite Bcstg., each of which opposed AC’s petition during FCC proceeding. Advanced argued that decision violated federal law and was arbitrary and capricious because no other party previously had been denied extension for DBS system and FCC since had continued practice of granting such requests. Appeal comes as govt. evaluates proposed merger of DBS operators EchoStar and DirecTV. Should AC prevail, it could become DBS competitor for merged EchoStar-DirecTV unit.
At occasionally emotionally charged meeting of Public Safety National Coordination Committee (NCC) in Brooklyn Fri., public safety officials, including several who themselves had responded to attacks on World Trade Center and Pentagon, laid out for policymakers critical spectrum needs in wake of Sept. 11. At top of many lists was clearing analog TV incumbents from 700 MHz to make way for public safety users to operate in 24 MHz that FCC has set aside from them in that band. In first days following N.Y. attack, TV stations went off air after their equipment on top of World Trade Center was destroyed, said Peter Meade, chief of Nassau County, N.Y., Fire Dept. “I didn’t hear anybody saying, ‘I need Channel 2 back,'” Meade said. “But there are literally millions of people in the New York metropolitan area who cannot live and who will not live without an augmentation to the existing public safety communications channels. So television be damned.” Other key issues that surfaced repeatedly in day-long meeting included need for better interoperability between jurisdictions, for redundant wireless data network that could function during disasters and for more govt. funding. Several new proposals were put on table as well, including one by Nextel that was receiving kudos from public safety community and would relocate users in 700 MHz and 800 MHz bands for more efficient operations.
NextWave negotiations finally ended with announcement Fri. by FCC Chmn. Powell that settlement had been reached for company to surrender all its C- and F-block licenses. He said NextWave’s licenses would go to wireless carriers that won them in re-auction and “the American taxpayer will receive $10 billion, more than twice the amount than would have been received had NextWave kept the licenses in accordance with recent court rulings.”
PHILADELPHIA -- FCC’s 3 newest commissioners told state regulators meeting here this week that they valued their experience and expertise and were willing to listen and collaborate with them in addressing problems that affect both interstate and intrastate telecom service.