Public Knowledge welcomed an FCC public notice released Thursday seeking comment on “concerns and issues” raised by the intentional interruption of CMRS service by government authorities for the purposes of protecting public safety (CD March 2 p 14). PK noted that it joined other groups in asking the FCC to rule on whether the Bay Area Rapid Transit authority violated the Communications Act in August when it cut wireless service at one transit station in the interest of public safety. “We agree with FCC Chairman [Julius ] Genachowski that any such cutoff raises ’serious legal and policy issues, and must meet a very high bar,'” the group said. “The same wireless network that police see as a tool for rioters to coordinate is the same wireless network used by peaceful protesters to exercise our fundamental freedoms. More than that, in any event, the network will be necessary for people in the area to call for help or to let family members know they are not harmed.” The courts, not the FCC, need to step in, said TechFreedom. “What BART did clearly violated the First Amendment, and needlessly put passengers at risk by cutting off emergency services just when they were needed most,” the group said. “But we need a court to say so, not the FCC. The FCC has no authority here. The state did not order the shutdown of the network, nor does the state run the network. BART simply turned off equipment it doesn’t own -- a likely violation of its contractual obligations to the carriers.”
Three cable operators selling 122 AWS licenses went over the types of data they retain, in meetings last week with FCC staff, ex parte filings from Bright House Networks, Comcast and Time Warner Cable in docket 12-4 (http://xrl.us/bmwqge) show. Comcast executives “discussed issues relating to possible information and document requests” and talked about the types of data about video, voice and broadband the cable operator keeps, a filing said. That covered “information regarding Comcast’s costs, revenues, and operations and the geographic levels at which such information is aggregated,” the company said. Bright House lawyers talked about “the format and location of various financial and operational data within the company,” their filing said. Time Warner Cable reported discussing similar issues on Verizon Wireless’ purchase of the SpectrumCo.
An Arizona company is marketing license preparation services for spectrum the FCC is not even close to making available, is not accepting applications for, and which may have little value when it does, Communications Daily learned from company documents and interviews. The company, Smartcomm LLC of Phoenix, also has charged up to 280 times what others are charging for similar license preparation services.
Cablevision seeks a thirty day extension to file broadband data associated with the FCC’s Form 477 “Local Competition and Broadband Reporting Form,” according to a motion filed Thursday (http://xrl.us/bmwpuk). “The census tract files that Cablevision received from its third party vendor for use in the filing were based on 2000 census tract codes, instead of the 2010 census tract codes” that the commission had requested, the motion said.
Lobbyist Registrations: MPAA, McDermott Will & Emery, effective Jan. 3 … Insight Communications CEO Michael Willner is among those leaving following its takeover by Time Warner Cable.
A broadcast-TV network backed FCC approval of Dish Network’s requests for transfers of control and related mobile satellite service waivers. That would have important “implications for our national spectrum policy generally,” Ion Media said in a filing (http://xrl.us/bmwqgx). Approval would allow Dish to repurpose underused spectrum, said the broadcaster: It has “no current spectrum dealings with, or any direct or indirect business interests in, any of the parties to this proceeding.”
The FCC Wireline Bureau seeks comments on a Midwestern Telecommunications application to discontinue certain domestic telecommunications services in multiple states, according to a public notice published Thursday (http://xrl.us/bmwpsz). MTI offers resold wireline local telephone services in Alabama, California, Florida, Georgia, Illinois, Indiana, Kentucky, Michigan, Mississippi, North Carolina, Ohio, South Carolina and Wisconsin. MTI seeks approval to discontinue these services and terminate operations in these areas. “MTI maintains that the impact of the proposed discontinuance on the public will be minimal because only approximately 2,380 customers currently use the services and because all affected customers have a wide range of choices for alternative local telephone services in the Service Areas,” the notice said. Comments are due March 16.
The denial of a T-Mobile pole attachment request did not violate the Communications Act, the U.S. Court of Appeals for the 4th Circuit ruled in Virginia on Thursday, upholding a district court decision that the Fairfax County, Va., board of supervisors had acted within their authority (http://xrl.us/bmwqan). In 2009, T-Mobile had filed two applications with the board seeking to increase the height of an existing utility transmission pole by ten feet, so it could attach a wireless facility containing three five-foot tall panel antennas. Years earlier, AT&T and Verizon Wireless had received permission to place panel antennas lower down on the pole. The board rejected T-Mobile’s plans and the telco sued, arguing the board’s decision violated the Act’s provisions barring local governing bodies from unreasonably discriminating among similar service providers, and from prohibiting wireless services. “T-Mobile has failed to carry its heavy burden in this case,” Judge Barbara Keenan wrote. “T-Mobile failed to show that it lacks reasonable alternatives to provide service in the area at issue, and failed to show that further attempts to gain the Board’s approval would be futile.” The board’s decision was reasonable, and “based on the traditional zoning principle of aesthetic impact,” the court wrote. Judge Andre Davis dissented in part, writing that a reasonable fact-finder could conclude that T-Mobile had an “effective absence of coverage” in the vicinity of the intersection in question, and “no reasonable alternative sites” would fill the gap.
A district court erred when it ruled AT&T need not obtain a new cable franchise before streaming its U-verse video service along its existing Kentucky phone lines, the 6th U.S. Circuit Court of Appeals said Friday, remanding the case to the lower court for further proceedings (http://xrl.us/bmwqfb). The district court had said AT&T’s perpetual statewide phone franchise, granted in 1886, “permits it to use its current facilities to transmit IP video services to customers in Hopkinsville.” In reversing, the 6th Circuit said the lower court had used the wrong standard of review, improperly assigning the burden of proof to the non-moving party, Mediacom. The district court also relied on “self-serving facts written by AT&T in a stipulated agreement” to make findings about the nature of the U-verse service, the new ruling said. “The district court stated that Mediacom’s claim turns on a single question -- whether the transmission of IP video signals is outside the scope of AT&T Kentucky’s existing franchise,” Judge Danny Boggs wrote. “This very well may be the proper question of law on a motion for summary judgment -- assuming there are no genuine issues of material fact -- but it is not the proper inquiry for a motion to dismiss,” which should simply question whether the plaintiff’s complaint includes enough facts “to state a claim to relief that is plausible on its face.” Regardless, there were genuine issues of fact, the court said, specifically whether to characterize U-verse as an evolution of its two-way phone service, or something conceptually different and more akin to one-way cable-TV service. “The line between television and telephone service was once quite concrete; it is now rather fuzzy,” Boggs wrote. “Balancing the requirements of restrictive franchising laws, drafted in a different era, poses a challenge for courts, as new technologies emerge that do not fit within the confines of increasingly antiquated terms like television and telephone. That inquiry, though, is for another day.” Judges Jane Stranch and James Carr backed the decision.
Congressional authorization for the FCC to begin incentive auctions seems unlikely to affect fixed satellite service spectrum, said industry executives. There’s more potential for action within the mobile satellite service spectrum band, though the FCC’s plans for that spectrum remain unclear, they said. The spectrum bill (CD Feb 24 p10) gives the agency very broad authority to auction broadcast and other spectrum. The general incentive auction ability is limited to where “the Commission conducts a reverse auction to determine the amount of compensation that licensees would accept in return for voluntarily relinquishing spectrum usage rights” and “at least two competing licensees participate in the reverse auction.”