U.S. Appeals Court, D.C., backed off on key issue that arose in its Fox TV Stations v. FCC decision (CD Feb 20 p1), but refused to rehear arguments on national media ownership caps in decision released Fri. Court said it was “better to leave unresolved” interpretation of phrase “necessary in the public interest” that it used in original decision to define whether FCC rules should be retained. Some in industry had interpreted that language to mean higher standard for retaining FCC rules, leading to several new bids for Commission to eliminate variety of rules, based on earlier Appeals Court ruling.
Country of origin cases
Verizon warned business customers of fraudulent phone bills being circulated around country by company identified as “verizon e.” Verizon said that along with wanting to protect its customers from paying bogus bills, it also was concerned about “exploitation of our brand.” Verizon said its security personnel and postal inspectors were investigating those bills, which appeared to have originated in Cal. and had resulted in more than 140 complaints from business customers around U.S. Customers should call local business office if they receive such bills, Verizon said.
Rural senators expressed variety of concerns about Universal Service Fund (USF) and way FCC is administering it in Senate Commerce Communications hearing on issue Wed. Sen. Rockefeller (D-W. Va.) criticized FCC Chmn. Powell, saying Powell wasn’t committed to USF despite “swearing” not to undermine fund during his Senate confirmation hearing. Rockefeller said FCC was using uncommitted e-rate funds to keep USF contributions stable. “I'm not sure of his commitment to e-rate. I'm not sure of his commitment to universal service,” Rockefeller said, adding that he was “very unhappy” with Powell’s treatment of those issues. FCC needs to be “much more aggressive and timely” in redefining USF contribution system and should have it “worked out” by April, Rockefeller said. Sen. Dorgan (D-N.D.) also was critical of Powell, saying FCC had “chopped away at” USF and fund was in great jeopardy if FCC didn’t take aggressive action. He also said Powell should be called before Senate Commerce Committee to testify about USF.
In what was seen as “clear win for broadcasters” and response to pressures from U.S., amendments in Canada’s copyright laws that could block Internet distribution of TV programs were passed Tues. by House of Commons and will move to Senate. “We are very pleased with the passage of C-48,” Glenn O'Farrell, pres. of the Canadian Assn. of Bcstrs. (CAB) told us: “The members of Parliament clearly understood the importance of this issue not only in terms of protecting the rights holders but also ensuring that Canada becomes a defender of intellectual property rights. This legislation provides clarity.”
U.S. Appeals Court, D.C., denied Bell company challenge to FCC’s colocation rules Tues. (CD May 13 p1), saying most of complaints were either “meritless” or inapplicable. Although Verizon was lead challenger in case (Verizon v. FCC), petitions also had been filed by BellSouth and SBC, court said. Contested rules had been FCC’s 2nd attempt at colocation guidance because same court had remanded first set.
FCC received more than dozen petitions for reconsideration of its March ultra-wideband (UWB) order, seeking review on wide array of issues, ranging from power limits to transparency of device testing that Commission had planned over next year. Petitions reflected similar split of views that had made original proceeding controversial, including filings from numerous UWB developers that cited types of devices that couldn’t be deployed under certain provisions they argued were more restrictive than needed to protect against interference. Among companies that urged FCC to tighten certain power limits and not add flexibility to others were Sprint, Cingular Wireless, XM Radio, Sirius Satellite Radio, Satellite Industry Assn., Air Transport Assn., Qualcomm. They cited continuing interference concerns, characterizing limits of final order as insufficiently protective for systems such as GPS, PCS wireless systems, satellite radio.
New Qwest CEO Richard Notebaert made several messages clear Tues. as he talked with financial analysts in conference call: (1) He’s working hard to court Wall St. (2) He’s doing same at FCC. (3) He’s stressing value of his Bell company heritage. “We would like to be very open, very available to you,” he told analysts. Many of them wished Notebaert good luck and welcomed him “back” as he told them repeatedly how important it was to get Qwest on track financially. Asked when company would break even, Notebaert responded that “breaking even isn’t good enough” and company will “move very expeditiously” on issues that have affected its standing on Wall St.
U.S. Supreme Court refused to hear must-carry appeal filed by Satellite Bcstg. & Communications Assn. (SBCA) on behalf of EchoStar and DirecTV. Decision, without comment or dissent, means DBS subscribers must continue to receive all local channels in markets where they're offered. Justices rejected DBS argument it had constitutional right to select programming. FCC originally issued carriage regulations to protect independent broadcasters and to keep DBS companies from dropping less popular stations and adding new channels, industry sources told us. “There is no evidence” must-carry rules “will preserve even a single broadcast station that otherwise would go dark,” SBCA attorney Charles Cooper had told court.
As expected, broad array of companies petitioned FCC for reconsideration of controversial ultra-wideband order that Commission approved in March. Challenges filed by our deadline included petitions from Sprint, ground-penetrating radar (GPR) manufacturers and users and UWB developer Multi- Spectral Solutions Inc. (MSSI). Petition for reconsideration that would be limited to radar vision-related portions of order was expected to be filed by UWB developer Time Domain, but hadn’t been by our deadline. In 45-page filing, Sprint raised 10 issues, in part challenging: (1) Conclusion in order that PCS licensees didn’t hold exclusive licenses. (2) Alleged failure of order to address “the most serious harmful interference to Sprint,” which company said constituted legal error. Most significant harm that Sprint is likely to sustain as result of order is “a material loss of network coverage and capacity,” petition said. “Sprint demonstrates that certain UWB developers misled the Commission concerning the operating parameters of CDMA technology and that as a result, most of the Commission’s conclusions concerning CDMA are factually erroneous.” (3) “Arbitrary and capricious” indoor UWB emissions level set for PCS band. (4) Extent to which order conflicted with FCC’s E911 rules and policies. (5) Failure of order to adjust UWB emissions levels in PCS band to account for “cumulative effect” of UWB interference. Separate petition for reconsideration was filed by National Utility Contractors Assn., which represents underground utility construction contractors. That petition also centered on GPR issues, saying order’s limitations on UWB as applied to GPR “will have negative consequences in collective efforts to prevent utility damages.” MSSI argued that: (1) Adopted rule significantly changed existing FCC policy, “but this change in policy was not proposed by or was not acknowledged in the original notice of proposed rulemaking. (2) Rule contradicted other established FCC rules and was in “material error.” It said FCC “unnecessarily restricts” frequency of operation for lower power UWB applications, such as vehicular radar. GPR Service Providers Coalition filed petition for partial reconsideration, asking FCC to expand category of eligible users to include existing service providers and govt. entities “while preventing use by mere hobbyists.” That petition also sought modification or clarification of coordination procedures to eliminate unnecessary paperwork and limit precoordination to sites or conditions where precoordination is truly warranted.” Group asked FCC, “in the absence of any evidence that GPRs have or will create interference to relax power emission constraints to level that is on par with unintentional radiators.”
NTIA released rules Mon. for how private sector would carry out mandatory reimbursement obligations for govt. agencies that relocated to make spectrum available for private sector use. Rules call for federal agencies to prepare estimate of relocation costs and provide that amount to potential bidders at future auctions. Payment details then would be negotiated directly between federal incumbent and new licensee. Notice of proposed rulemaking issued by NTIA last year had sought comment on whether federal entities should be required to relocate in cases when spectrum sharing was possible. Final rule acknowledged that sharing “appears to be an option that private sector parties favor.” But agency said legislation such as Balanced Budget Act of 1997 required that federal users not otherwise exempt must be relocated from bands reallocated to nongovt. users “in order to exercise their rights to reimbursement.” Rule also said NTIA shortly would release further notice addressing cost- sharing mechanism, such as spectrum clearinghouse, to ensure that federal agencies were reimbursed when multiple licensees shared that responsibility.