A U.S. District Court rightly ruled Pacer fees were unlawfully set above the amount authorized by Congress but was too permissive in allowing the fees to fund some non-Pacer expenses, said the National Veterans Legal Services Program, National Consumer Law Center and Alliance for Justice in a docket 19-1081 appellant opening brief (in Pacer) Wednesday. They asked the U.S. Court of Appeals for the Federal Circuit to reverse the lower court's denial of their motion for summary adjudication on liability and its partial grant of the government's cross-motion for summary judgment and remand the case to the District Court. DOJ didn't comment Thursday.
Notable CROSS rulings
Plans for a pan-EU digital single market (DSM) are unlikely to be finalized during the current term of the European Commission and Parliament, and when completed may not have the desired effect, stakeholders told us. While the EU institutions have agreed to 23 of the 30 measures proposed for creating the DSM, several contentious issues remain to be resolved. The EC added additional initiatives outside the DSM that, combined with moves by the European Parliament to push DSM initiatives more toward consumer protection, could change the direction, said Inline Policy consultant Shomik Panda, who focuses on platform regulation and policy.
Telcos supported FCC elimination of two Part 61 tariff rules, as proposed in an Oct. 18 NPRM: a cross-referencing rule, which bars carriers from referencing their own tariffs and those of affiliates in tariff publications; and a rule requiring price-cap ILECs file short-form tariff review plans 90 days before their access tariffs are due. CenturyLink, Frontier Communications and Verizon backed ending both rules, in docket 18-276. ITTA supported scrapping the cross-referencing rule.
Litigation looms over a lengthy FCC jurisdictional separations freeze despite buy-in from key state regulators. Critics plan a court challenge to a Dec. 17 order extending the freeze on rules allocating most regulated costs to intrastate rather than interstate services, which they say eases illegal cross-subsidies. “We’re going to definitely appeal," said Bruce Kushnick, New Networks Institute executive director. Commissioner Mike O'Rielly, chairman of a federal-state joint board on separations, and others said the rules are becoming less relevant, applying to fewer carriers.
A second hold placed last week on Senate confirmation of FCC Commissioner Brendan Carr to a full five-year term has at least considerably hindered the prospects for the chamber to approve him and Democratic FCC nominee Geoffrey Starks this year, lawmakers and lobbyists said in interviews. Sen. Joe Manchin, D-W.Va., placed a hold on Carr because of the FCC's decision to suspend the window for responding to Mobility Fund Phase II challenges (see 1812140047). Sen. Dan Sullivan, R-Alaska, placed an ongoing hold on Carr earlier this year over concerns about FCC handling of the USF Rural Health Care Program (see 1809130059). Senate leaders intend to move the nominees as a pair.
A surge in FCC ex parte meetings about access to national outage data in the network outage reporting system (NORS) and disaster information reporting system (DIRS) may foreshadow commission action in the near future, said parties to docket 15-80. States and others seek access, but the telecom industry is raising confidentiality concerns (see 1811060036). Multiple stakeholders that have talked with the FCC said the bureau is asking for input and meetings, but it's not clear what, if anything, Chairman Ajit Pai wants to do on the issue or when. The impetus for those meetings isn't clear, we were told.
The FCC plans to launch a 2018 quadrennial review, classify wireless messaging as an information service, pave the way for a new high-band 5G auction, and provide rural telcos with new USF support in exchange for more deployment of 25/3 Mbps broadband, at the Dec. 12 commissioners' meeting. It's targeting votes on items to create a reassigned phone number database to help against unwanted robocalling, further "modernize" broadcast rules and issue a communications market report. The wireless messaging (including short message service or SMS) and auction items weren't among those previously expected (see 1811190047), with the first item now getting criticism.
Parties disagreed on the FY 2019 National Defense Authorization Act's fallout for an FCC's rulemaking to protect the communications supply chain from national security threats. The Telecommunications Industry Association said NDAA Section 889 requires the commission to bar certain suppliers from participating in its funding programs. Huawei -- one of the targeted suppliers -- and others said the recently enacted provisions give the FCC no mandate to impose supplier restrictions on USF support. NCTA suggested the commission defer action and consult with other agencies. Comments were posted through Monday on a public notice (see 1810260044).
Most commenters welcome moves to open the 3.4-4.2 GHz C-band for 5G, as some question the FCC’s proposed market-based approach to making licenses available. Questions remain how to create a smooth glide path there for satellite operators. Tuesday, some said the FCC appears to want to move quickly on the band, but final rules are unlikely until late 2019.
BARCELONA -- ICANN faces five key challenges for which it must rethink its vision, Chairman Cherine Chalaby said at Monday's opening of the internet body's weeklong meeting. He cited exponential growth in security problems that challenge security and stability of the Domain Name System; the possibility the multistakeholder system could become more expensive but less effective as it scales up; and that new unique identified regimes are emerging. He said growing importance of the internet to all sectors increases the possibility governments will try to control the DNS, and domain name market consolidation makes expansion of the generic top-level domain name (gTLD) space uncertain.