Supreme Court prospect Thomas Hardiman has ruled for and against FCC rules governing small business bidding credits in wireless spectrum auctions, but never reversed auction results. The judge of the 3rd U.S. Circuit Court of Appeals since 2007 reportedly remained in contention to replace retiring Justice Anthony Kennedy on the high court, along with the D.C. Circuit's Brett Kavanaugh, the 6th Circuit's Raymond Kethledge and the 7th Circuit's Amy Coney Barrett. Kavanaugh has by far the most extensive record on telecom and media law. Kavanaugh -- in dissenting from 2017's USTelecom ruling (here) upholding the FCC's 2015 net neutrality order -- and Kethledge (here) have voiced skepticism about broadly deferring to regulatory agencies on ambiguous statutes under the Chevron doctrine (see 1807040001). President Donald Trump planned to have announced his nominee Monday night.

New York City and other commenters asked the FCC to preserve the 4.9 GHz band for public safety use. Comments were due Friday on a Further NPRM on the public safety band, approved 5-0 by commissioners in March (see 1803220037). Commissioners have been frustrated that 16 years after its use was approved for public safety, the band remains underused. The notice was the sixth by the FCC on the band. Comments were posted in docket 07-100.

Commissioners dismissed a petition for reconsideration by the Competitive Carriers Association and upheld a Wireless Bureau decision approving transfer of 514 39 GHz licenses from a subsidiary of FiberTower to AT&T. The commission said CCA didn’t have standing to make the challenge. “CCA has not made any allegations of specific competitive harm that was the direct result of the Commission’s consent to the subject Transaction and has not established that it is aggrieved or injured by the Consent Order,” the FCC said. “It makes generalized statements about ‘expense to taxpayers, consumers and 5G competition’ and ‘unjust enrichment’ to FiberTower, neither of which demonstrates how it, or its members, are aggrieved or injured by the consent to the Transaction.” The bureau authorized AT&T to take control of high-band licenses as part of its buy of FiberTower in February (see 1802080055). In April, CCA asked the FCC to overturn the decision (see 1804030032). “Today’s decision is disappointing, and makes it even more important that the FCC continues work to make millimeter wave spectrum available to all carriers at auction as soon as possible,” CCA President Steve Berry told us. “High-frequency millimeter-wave spectrum provides a real opportunity for competitive carriers to utilize valuable, limited spectrum to deploy the advanced telecommunications services that consumers want and demand, especially those living in rural and remote areas.”

The FCC granted 12 of 14 waiver petitions in the Connect America Fund Phase II auction of subsidies for fixed broadband and voice services, though some didn't qualify to bid. Meanwhile, Comcast and MediaCom told us they didn't apply to bid in the auction starting July 24. The Wireline and Wireless bureaus granted 10 of 11 applicant waiver petitions asking regulators to accept late-filed Form 477 submissions as evidence of their voice and/or broadband service experience but denied Net Vision Communications' request because it didn't file a 477 for a relevant period, said an order in docket 17-182 and Tuesday's Daily Digest. The bureaus noted the waivers didn't necessarily mean applicants were qualified to bid, as applications were judged in totality; a public notice Monday announced 220 applications were accepted and 57 denied (see 1806250051). Waiver grantees qualified to bid were Workable Programs and Systems, Hankins Information Technology, Red Spectrum Communications, 360 Communications, Pueblo of Laguna Utility Authority and Northern Arapaho Tribal Industries. Not qualified were Redzone Wireless, Emerald Cable, Good Connections and Skyrunner. The bureaus denied Sonus Technologies' request to waive a requirement that applicants with fewer than two years of experience submit three years of audited financial statements. In another order, the bureaus granted waivers to Horizon Telcom and Hawaiian Telcom to amend applications to reflect pending ownership changes, conditioned on deal consummation. The FCC May 29 approved transfers from Horizon Telecom and two subsidiaries to Horizon Acquisition Parent; June 19, it approved transfers of control from Hawaiian Telcom to Cincinnati Bell. Both applicants were qualified to bid.

Bidirectional sharing of commercial spectrum for federal users to have access to commercial spectrum has emerged as a Trump administration focus. Proposals remain controversial for carriers.

The FCC released draft items for commissioners' July 12 meeting (see 1806200058), including an NPRM on C-Band spectrum at 3.7-4.2 GHz. Also on the tentative agenda for the meeting are drafts on wireless emergency alerts (WEA) and the emergency alert system (EAS), changes to cellular, children's TV programming (see 1806210021), nationwide number portability and enforcement proceeding rules for complaints.

FCC Commissioner Jessica Rosenworcel said women should hold more positions in telecom, media and tech. "I hate when people say it's a pipeline problem" because it "absolves" managers of responsibility, she said at an FCBA event Wednesday. She largely stuck to familiar themes in Q&A with FCBA President Julie Kearney of CTA. Rosenworcel backed a "spectrum calendar" and closing the "homework gap," suggested T-Mobile's proposed buy of Sprint has a difficult case to make, and decried the spread of unjustified claims of "fake news." She voiced hope for "distributed ledger" technology as a possible spectrum-sharing solution.

Agencies can change their minds about regulation due to leadership shifts, a dynamic that applies to broadband reclassifications, said FCC senior litigation officials at an FCBA event Tuesday evening. It's settled law that changes in administration bring changes in policy, said Jacob Lewis, associate general counsel, suggesting Chevron judicial deference applies. That agencies can change course after administration changes is nothing new, as 1984's Chevron was about a Reagan administration EPA change from the Carter administration policy, said Richard Welch, deputy associate general counsel. He noted they spoke only for themselves.

The 3.7-4.2 GHz band will play a role in deployment of 5G, speakers agreed Friday at a New America event, but they jousted over whether the C-band could be cleared in only some geographic areas and complained about lack of clarity and technical details on the two main plans for terrestrial access to the band. Top priority must be preventing harm to incumbent users, and there needs to be far more detail about the Broadband Access Coalition (BAC) and Intelsat/SES/Intel proposals before an evaluation can start, said American Cable Association (ACA) Senior Vice President-Government Affairs Ross Lieberman.

South Korea is poised to jump into the mid-band fray with auction of 3.5 GHz spectrum for 5G starting Friday, as the FCC is working toward finalizing revised rules. CTIA is asking the FCC to move quickly to free more mid-band spectrum. “The wireless spectrum being auctioned by South Korea’s government will be available for commercial use by December of this year,” CTIA said. “Recent research commissioned by CTIA revealed that the U.S. ranks sixth out of 10 lead nations studied in terms of mid-band spectrum availability. China ranked first.” The association noted Spain plans a mid-band auction in July, and Australia and Italy plan to launch mid-band auctions in coming months. The FCC didn't comment. “The leadership of the United States is not guaranteed -- especially when you consider that the FCC is timidly moving to auction spectrum for 5G one band at a time instead of boldly all together," responded Commissioner Jessica Rosenworcel. "It also has yet to put on a public calendar just when additional airwaves will be made available. These are confusing signals to send to the marketplace. We need to fix them.”