Dozens of filings and FCC public notices from August and September were posted on the agency’s electronic comment filing system Monday and Tuesday after staff noticed the links to them were not working when they were originally posted, an agency spokeswoman told us Tuesday. When a staff member refreshed the links, it reposted the filings in the Electronic Comment Filing System, the spokeswoman said. The links have now been fixed and there shouldn’t be more problems, she said. After problems with ECFS in the wake of a record-setting onslaught of net neutrality comments, the FCC has been working on other fixes (see 1410310028 and 1411030039).
T-Mobile's request for declaratory ruling on data roaming would be unlikely to survive appellate review if granted, AT&T said. For 2014, the average rate paid by AT&T through August is higher than T-Mobile's projected average rate for 2014, AT&T said in an ex parte filing posted Tuesday in docket 05-265. The rates AT&T offered to T-Mobile for LTE roaming "compare favorably with T-Mobile's projected average 2014 rates," it said. "These facts indicate that AT&T has offered data roaming to T-Mobile on commercially reasonable terms." Adopting T-Mobile's request that the commercial reasonableness of roaming rates be determined by measuring them against "benchmarks" drawn from rates applicable to other services "would amount to common carrier rate regulation, which is prohibited by the Communications Act," it said. The filing recounts a meeting with staff from the FCC Office of General Counsel.
About three hours after FCC Chairman Tom Wheeler said at the Nov. 21 commission meeting that the agency needs to be careful in adopting net neutrality rules because “the big dogs will sue," (see 1411210040), a Verizon executive emailed him to say there’s one way to avoid having ISPs barking in court: Communications Act Section 706, an ex parte filing said. Saying he’d seen reports of Wheeler’s “view of the inevitability of litigation challenging the Commission’s eventual Open Internet rules,” Randal Milch, Verizon general counsel, included a blog post he’d written. Milch’s post describes why “Open Internet rules based on Section 706, and which prohibit 'harmful paid prioritization,’ will not be the object of a successful court challenge -- by Verizon or anyone else,” said the email, posted as an ex parte filing Tuesday in docket 14-28. Under a Title II approach, “the ISPs, and perhaps some in the tech industry, will have no choice but to fight the sudden reversal of two decades of settled law,” Milch wrote in the Nov. 4 blog post. Title II proponents could also sue “if the FCC forbears from too many arcane common carrier rules for their taste (and to keep their fund raising pipeline flowing),” he wrote. Should the FCC take a Section 706 approach, Milch’s blog post said, “all of the major ISPs and their trade associations have conceded that the FCC can lawfully prohibit harmful paid prioritization on this basis -- effectively waiving their ability to challenge the FCC’s authority to do so and taking them out of the litigation path.” USTelecom has said it would be “compelled” (see 1410310050), and AT&T has said it would “expect” to challenge a Title II approach in court. Opinions varied among those involved in the debate about whether Wheeler’s comment revealed the path the agency is considering. AT&T, USTelecom and Verizon declined to comment. One Title II opponent said Wheeler’s concern about a court challenge indicated the agency is moving toward some form of a Title II approach because the prospects of an ISP legal challenge would be moot under a Section 706 approach. Free State Foundation President Randolph May disagreed in an email to us, but said “I am hopeful he's beginning to recognize that Title II, even in hybrid form, is just way too problematical.” Public Knowledge Senior Vice President Harold Feld said he didn’t read much into the remark, describing it as a "'Washington poker face.’ Wheeler is well aware that any statement he makes will get scrutinized for clues. But he can't refrain from comment because people would try to figure out what his refusal to say anything means. So 'someone will sue, so we want the best Order possible' is about as safe as a prediction as possible,” Feld said. Free Press, in a letter to the FCC, posted Monday as an ex parte filing, again disputed the methodology used by economists Kevin Hassett and Robert Shapiro in a study submitted to the commission by USTelecom, saying capital investments by broadband providers could decline by as much as nearly a third over the next five years if the FCC takes a Title II approach. Hassett and Shapiro defended their study to us at the time (see 1411190035).
Time Warner Cable Deputy General Counsel David Christman met with FCC staff last week to describe the relationship between Bright House Networks, Advance/Newhouse and TWC, said a partially redacted ex parte filing posted in docket 14-57 Tuesday. A/N is the “exclusive day-to day manager” of the Bright House Networks systems, while TWC provides “programming acquisition and network-related services” to the BHN systems, TWC said. It said the arrangement provides “scale advantages” to Bright House while TWC benefits from “close collaboration” with BHN management.
The FCC should create net neutrality rules under Title II and Section 706 of the Communications Act and focus the debate on what sections to forbear from Title II, AOL Chief Counsel-Global Public Policy Leigh Freund and Steptoe & Johnson’s Pantelis Michalopoulos told Gigi Sohn, Chairman Tom Wheeler’s special counsel-external affairs, Nov. 19, said an ex parte filing posted in docket 14-28 Monday. They said banning paid prioritization under Section 706 and Title II “provides the appropriate analytical framework that can accommodate different views on the scope of regulation and forbearance. Reasonable minds can disagree over that scope -- some favor total forbearance, while others prefer more limited forbearance,” wrote Michalopoulos. “But that conversation should occur with a firm ban on pay-to-play arrangements” as the essential backdrop, the company said. Complete or limited forbearance “allow[s] for exceptional arrangements that might be permissible subject to prior Commission approval (for example, a request by an independent Internet Service Provider who does not have market power and does not charge end users for authority to deploy a different price model),” AOL said. The commission should not forbear from all or part of sections 201, 202, 208, 222, 251, 255 and 256, Free Press Policy Director Matt Wood and Policy Counsel Lauren Wilson told commission General Counsel Jonathan Sallet and Associate General Counsel Stephanie Weiner Nov. 19, according to an ex parte filing posted Monday. “Sections 201, 202 and 208 form the core of the Title II, and the heart of the entire Act in many respects, with that trio of statutes providing sufficient authority for strong Open Internet rules.” Free Press “discussed the possibility of deferring decisions on forbearance … until a later date while staying their application" until then, said the group. Further research is needed “of that procedural question,” and the group will provide further analysis on the issue, it said. “The record in this docket is complete” on “which statutes the Commission must retain in order to adopt Open Internet rules -- namely, Sections 201, 202, and 208,” said the nonprofit. The record is also complete on “which statutes may be necessary (as a basis of authority in other proceedings) to promote important policy goals such as broadband competition, universal service, and consumer protection, even if some few questions remain as to how and when to make those determinations in other proceedings,” Free Press said.
T-Mobile told the FCC that prospective guidance and predictable enforcement criteria on the “commercially reasonable” standard in the data roaming order “would be invaluable to carriers in negotiating and reaching agreements,” in an ex parte filing posted Friday in docket 12-268. The carrier also said that in the 600 MHz auction, a four-block maximum reserve would promote competition and expand opportunity “by preventing the dominant players, which already control more than 70 percent of the nation’s low-band spectrum resources, from choking off competitors’ access to the spectrum resources needed to offer wireless services indoors and in rural areas.”
T-Mobile agreed with the FCC Monday to disclose more accurate information to consumers who check their mobile broadband speeds on the carrier’s network after they’ve reached their monthly data cap. Some applications that measure mobile broadband speeds currently tell T-Mobile subscribers the full network’s speed instead of the speed of their personal mobile broadband connection after subscribers hit their data caps and begin to experience throttling. T-Mobile agreed to begin automatically sending text messages to subscribers who reach their data caps linking to an application that will provide accurate speed measurements. The carrier also agreed to modify its existing text messages to subscribers who hit their data caps to clarify the accuracy of speed tests under throttling conditions and provide a button on customers’ smartphones linking to speed tests that will provide accurate information on throttled speed measurements. T-Mobile also agreed to modify its website disclosures to clarify its policies on speed test applications. “The additional disclosures we’re providing to consumers on this issue will be sure to prevent any confusion and are another solid Un-carrier move,” said Andy Levin, T-Mobile senior vice president-government affairs, in a statement. T-Mobile subscribers “need this information to fully understand what they are getting with their broadband service,” said FCC Chairman Tom Wheeler in a news release. The FCC has been investigating the top four U.S. wireless carriers’ throttling policies (see 1408120057). Public Knowledge is “encouraged that the FCC and T-Mobile were able to come to an agreement that increases transparency for T-Mobile’s customers,” said Vice President Michael Weinberg in a statement. “However, we remain concerned that T-Mobile continues to prevent its subscribers from using the speed test application of their choice. … If T-Mobile is truly confident that they are managing their network responsibly, Public Knowledge hopes that they will free their subscribers to test their network connection with an application that they trust, not one that was pre-approved by T-Mobile.”
The Satellite Industry Association requested an extension of time for the comment period on whether to create service rules for the 42-43.5 GHz band. SIA asked for a 30-day extension to Jan. 15 for initial comments, and Feb. 17 for replies, said its request, posted Wednesday in RM-11664. This would allow SIA and its members to better prepare a thorough, fact-based response to the FCC’s questions in the notice of inquiry, it said. Looking at one band for spectrum sharing with widely deployed mobile wireless services requires extensive analysis and review, SIA said. The FCC is seeking comment on multiple bands across a broad range of radio spectrum, it said.
Changes to the definition of a multichannel video programming distributor to include over-the-top video services should include rule changes to promote localism, NAB said in an ex parte filing posted in FCC docket 12-83 Wednesday. OTT services should “limit the geographic scope of their offerings” consistent with the scope of the retransmission consent rights they negotiate and FCC exclusivity rules, NAB said. The FCC should also take “swift action” on proposals to revitalize AM radio, NAB said. “Modifying the Commission’s rules to effectuate technical and policy changes will enhance AM signal quality and promote the continued viability of AM radio broadcasting."
Mobile roaming rules work as intended, so it's unnecessary to change them as T-Mobile seeks, Verizon executives told an aide to FCC Chairman Tom Wheeler. "Carriers are negotiating and entering into data roaming agreements," said Verizon in an ex parte filing posted Tuesday in docket 05-265. "In the three years since the FCC’s order, Verizon Wireless and its 59 roaming partners, including dozens of rural carriers, have executed 48 new or revised roaming agreements." There is no evidence that carriers won't keep negotiating data roaming deals with "commercially reasonable rates, terms and conditions," said Verizon. T-Mobile said last month it needed quick commission action on its request (see 1410290007). Verizon noted that the smaller carrier's request would change the rules to determine the commercial reasonableness of carrier fees by referring to what a company charges for retail roaming.