Net neutrality and wireless competition regulation emerged during a cordial House FCC oversight hearing Thursday as two potentially divisive issues facing policymakers. FCC Chairman Julius Genachowski responded cautiously to questions on a range of telecom policy matters at the Communications Subcommittee hearing. He told members he’s committed to upgrading the FCC regulatory processes, modernizing operations and delivering the broadband plan on time. Genachowski expressed his longstanding commitment to preserving an open Internet, and also said he has no plans to reinstate the fairness doctrine, a concern raised by several members.
Major Questions Doctrine
LAS VEGAS -- A backlog of perhaps several hundred TV license renewals persists at the FCC (CD Feb 8 p3/07) because the stations are the subjects of old indecency complaints and the commission is awaiting rulings on several court cases, industry lawyers said Monday. Speakers on an NAB panel complained that some licenses have been held up for years. They said the FCC has asked licensees that needed renewals to sell stations to agree to let the FCC take enforcement action for an indefinite time in exchange for clearance. Under acting Chairman Michael Copps, the period is down to two years, they said.
Broadcasters should take heed that support is growing in Congress for legislation requiring the payment of radio- performance royalties, House Communications Subcommittee Chairman Rick Boucher, D-Va., said at the NAB legislative conference Tuesday. “My advice: It’s time to start talking.” Broadcasters should start negotiations with record labels, cable, satellite and Internet radio industries on a fair payment system.
Democrats adopted a platform plank ordering clarity on broadcasters’ public interest obligations, and pledging policies to increase media ownership diversity, according to the final document. Under the heading “A Connected America,” the document said a Democratic administration will promote new media outlets for expressing diverse viewpoints and defining broadcasters’ public interest obligations.
Limits may be needed on police searches and seizures as more people use iPhones and other smart electronic devices, Adam Gershowitz, professor at the South Texas College of Law, said in a paper. The doctrine of search incident to arrest - - intended to keep police and evidence safe -- can be read as allowing police to sift an iPhone’s e-mails, Internet browser history and other private data, all without a warrant, the paper said. Legal experts we talked with said the opportunity for abusing Fourth Amendment protections is real, but changing the law could be an uphill battle.
The U.S. Appeals Court for the Federal Circuit sent back to a district court a patent infringement complaint against Sprint Nextel by Alfred McZeal and his business, International Walkie Talkie. The court vacated and remanded for further proceeding an order by the U.S. District Court for southern Texas dismissing McZeal’s complaint for failure to state a claim. McZeal “met the low bar for pro se litigants to avoid dismissal,” Judge Glenn Archer wrote in the majority opinion. Judge Timothy Dyk dissented in part. Sprint didn’t comment by our deadline.
SAN JOSE, Cal. -- FTC Chmn. Deborah Majoras noted that at a Feb. FTC workshop on broadband, some speakers said existing and emerging wireless technologies offer vigorous competition to DSL and cable modem access, and that some bias among kinds of network data traffic not only isn’t bad but helps consumers and competition. The FTC will report of workshop findings, she said Mon. night at the Tech Policy Summit here, but didn’t say when or whether it would lean in the directions she noted.
The U.S. Appeals Court, D.C., has authority under the reopening doctrine to review and rule on an FCC order adopting the National Programmatic Agreement (NPA), CTIA said Wed. in a supplemental brief. The jurisdictional issue was raised last week by Judge Merrick Garland during oral argument (CD Dec 9 p5) in light of earlier rulings by the court in PanAmSat v. FCC and related cases. CTIA is challenging a 2004 FCC order in which the Commission claimed authority to impose National Historic Preservation Act (NHPA) obligations on construction of wireless towers by cellular and PCS carriers licensed on a geographic basis. The group also is challenging an agency decision to extend wireless providers’ historic preservation obligations to properties “potentially eligible” for inclusion in the National Register of Historic Places. But the court has jurisdiction in CTIA v. FCC (05-1008) only if the 2004 FCC order constitutes a “reopening” of the case. “The FCC’s order differentiates between the FCC’s statutory authority to impose NHPA obligations, and the ‘public interest question’ whether the FCC should… continue to impose such obligations,” CTIA said. The FCC reopened the first question, explaining for the first time its rationale for imposing NHPA obligations on construction of wireless towers not federally funded or licensed, CTIA said. Former Comr. Kathleen Abernathy and then-Comr. Martin dissented from the order “without suggesting that the majority had refused to address the issue,” it said. In a Bureau-level order, CTIA said, the FCC later relied on the consideration of its statutory authority in the 2004 order to deny review of that issue in another proceeding. “All of that demonstrates that the FCC intended to and did in fact reopen this issue in order to achieve a definitive resolution of the statutory question,” CTIA said: “That is doubtless why the FCC, which routinely raises jurisdictional issues before this Court, did not do so in this case, either in its briefs or at oral argument.” FCC’s brief on the issue is due Dec. 19; CTIA’s reply, Dec. 22.
Rural telecom firms face a significant choice as a result of FCC deregulation of wireline Internet access (CD Aug 8 p1), panelists said on a USTelecom Webinar conference Tues. The order lets rural telecoms decide if their DSL service is to be treated as a regulated common carrier service or as a generally unregulated private carriage offering -- and that’s a major decision that can’t be made “off the top of the head,” said Carol Mattey, formerly at the FCC Wireline Bureau and now a Deloitte & Touche dir.
After House Commerce Committee Chmn. Barton (R-Tex.) told NAB Tues. that he had the votes in the House to force a Dec. 31, 2006, deadline on DTV transition, he praised broadcasters around the country for their grassroots organization and support of their local representatives. He said it was their “ace in the hole.” “If you play your aces, not your deuces, you'll be okay,” he told the NAB State Leadership Conference.