Federal Communications Commission (FCC)

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.

CTIA said the FCC is in no position to determine if any telecom companies are a threat to U.S. security, and it should work with the Department of Homeland Security, which has more expertise in the area. Other commenters also urged caution. The Rural Wireless Association said the FCC has already chilled investment in rural networks. Reply comments were posted this week in docket 18-89 on the NPRM approved 5-0 by commissioners in April (see 1804170038).

ITTA and members voiced their views to FCC Commissioner Brendan Carr and an aide, who spoke at a membership meeting that included executives of Blackfoot Communications, CenturyLink, Cincinnati Bell, Comporium Communications, Consolidated Communications, Consolidated Companies of Nebraska, Great Plains Communications, Hargray Communications, Ritter Communications and TDS Telecom. "Attendees expressed positions consistent with ITTA’s prior advocacy related to the universal service high-cost program budget for rate-of-return carriers; the need for reforms of the universal service contribution methodology; support for stay of the rural call completion rules adopted in April 2018; proposed Commission action related to 8YY originating access charges; and a proposed Commission rule to withhold federal [USF] disbursements to any USF recipient purchasing equipment or services from any communications equipment or service providers identified as posing a national security risk to communications networks or the communications supply chain," said a filing posted Tuesday in docket 10-90.

Federal appellate judges overturned a ruling that Time Warner Cable violated the Telephone Consumer Protection Act, further undercutting broad definitions of restricted automated telephone dialing systems (ATDS). A district court ruling, which cited a now-vacated FCC decision, was based on an incorrect statutory interpretation, ruled a unanimous three-judge panel of the 2nd U.S. Circuit of Court of Appeals Friday in Araceli King v. TWC, No. 15-2474. The panel noted the district court granted plaintiff King partial summary judgment on a claim that the company knowingly or willfully violated the TCPA by using an ATDS to call King's cellphone 153 times without her consent. The panel said the district court "relied primarily" on a 2015 FCC ATDS definition that was invalidated by the D.C. Circuit in ACA International (see 1803160053). The commission "broadly construed the term 'capacity' and thus extended the TCPA to reach any device that could be modified by software changes to perform the functions of an autodialer," said 2nd Circuit Judge Gerard Lynch's opinion on an appeal by TWC, part of Charter Communications. "In the wake of ACA International, which invalidated that Order and thereby removed any deference we might owe to the views the FCC expressed in it, we must decide independently whether the district court’s broad understanding of the 'capacity' a device must have in order to qualify as an ATDS under the TCPA is a supportable interpretation of the statute. We conclude that it is not." Although not bound by the D.C. Circuit interpretation, "we are persuaded by its demonstration that interpreting 'capacity' to include a device’s 'potential functionalities' after some modifications extends the statute too far," Lynch wrote, vacating and remanding the district court ruling. A King attorney didn't comment Monday.

Local governments cheered Commissioner Jessica Rosenworcel for sharing San Jose's 5G agreements as a model code while the FCC weighs rules to lower perceived local barriers. But carriers and others said San Jose's pact with industry is no model. The commissioner Wednesday released model agreements for small-cell 5G deployment negotiated by San Jose with wireless companies (see 1806150033), amid local government complaints that model codes developed by the FCC Broadband Deployment Advisory Committee favor industry.

VoIP and text messaging should be classified as "interstate, information services, freeing them from unnecessary federal and state requirements," FCC Commissioner Mike O'Rielly told the Cloud Communications Alliance Tuesday night, according to remarks posted Wednesday. "Both services are extremely popular with consumers and businesses, and there is abundant competition both from legacy providers and new over-the-top players to meet the market’s needs. Nonetheless, both services continue to be the target of what I’ve called regulation by analogy." FCC failure to classify VoIP as an information service while subjecting it to some telecom regulation "only served to encourage mission creep by prior Commissions and regulatory ambitious states," some of which are trying to regulate VoIP, he said. A Minnesota case "is being litigated in the courts, and I appreciate that the Chairman and Office of General Counsel were willing to work with me on an amicus filing explaining the legal and practical problems with Minnesota’s approach," he said, lamenting that the agency "must divert staff resources to stamp out efforts that are contrary to the law and common sense." Charter Communications is squaring off with the Minnesota regulator (see 1806120026). O'Rielly said more deregulatory efforts are needed, including in a biennial review of telecom rules to be launched later this year. He said there are areas where the FCC needs to be proactive, including freeing up spectrum for commercial use in high-band and mid-band frequencies. "My focus has not only been on concluding the so-called Citizens Band Radio Service at 3.5 GHz, but also reallocating the C-Band spectrum for additional wireless uses," he said. "This will provide large slices of spectrum for licensed services at 3.7 to 4.2 GHz, while permitting us to allow unlicensed services at 6 GHz. After some initial resistance internally and externally, it is great to see everyone come around to this line of thinking."

A federal court ruling that invalidated West Virginia one-touch, make-ready (OTMR) rules doesn’t stop states from making such rules if they first reverse pre-empt the FCC on pole attachments, said NARUC General Counsel Brad Ramsay Tuesday. West Virginia’s OTMR rules are pre-empted by federal law and the state may not apply or enforce them, U.S. District Court in Charleston, West Virginia, said in a Monday judgment (in Pacer). The court granted a joint motion for summary judgment by Frontier Communications, the West Virginia Cable Telecommunications Association (WVCTA) and Communications Workers of America (see 1803080028). The Public Service Commission didn’t “dispute that Article 4 conflicts with the Federal Communication Commission’s regulatory regime governing pole attachments,” nor that “Article 4 is preempted because of the conflict under the Supremacy Clause of the United States Constitution,” so “there is no issue for this Court to determine,” wrote Chief Judge Thomas Johnston in the four-page opinion (in Pacer). “The Court must enjoin the enforcement of Article 4.” Johnston noted future actions by the state legislature or others “could lead to the dissolution of the injunction.” The state commission declined comment. NARUC’s Ramsay emailed that the decision “says nothing about whether a state can” make OTMR rules. West Virginia never reverse pre-empted the FCC to regulate pole attachments itself, and the state conceded that in the case, he said. It doesn’t mean a state that reverse pre-empted the FCC can’t make such rules, or that West Virginia can’t now reverse pre-empt and then make OTMR rules, he said. The court ruling pleased WVCTA, said Executive Director Mark Polen in an interview. Cable companies weren’t causing problems, with the law really a “punitive statement against Frontier made by the legislature and some of their competitors,” he said. WVCTA didn’t see any companies try to invoke the OTMR rules after the law took effect last summer, he added. Polen heard some talk in the legislature about West Virginia reverse pre-empting the FCC on attachments, but it didn’t seem to have legs there or at the PSC, Polen said. WVCTA is “comfortable” following the federal regime, he said. A Frontier spokesperson applauded the ruling, emailing that the law “would have allowed unsupervised attachments on our poles that would have been potentially dangerous or unsafe to our employees and the public.” The spokesperson didn’t respond to Polen blaming Frontier for the state law. Pennsylvania last week said it's weighing reverse pre-emption (see 1806140057). Courts have clashed on the legality of local OTMR rules, with one federal court ruling against requiring the practice in Nashville and another supporting a similar ordinance in Louisville (see 1711270051).

The Lifeline national verifier is operational in Utah and five other “soft launch” states, the FCC announced Monday. Universal Service Administrative Co. got Federal Information Security Management Act (FISMA) accreditation Friday, said USAC Communications Director Jaymie Gustafson in a Monday interview. The reveal surprised observers, coming less than a week after the USAC official told a Utah Public Service Commission workshop the release date was unknown. Growing delay brought scrutiny from states and others (see 1806070022), as has an FCC proposal to cut Lifeline support to resellers (see 1806150048).

Many urged the FCC to limit business-oriented caller exposure to Telephone Consumer Protection Act liability, after partial court reversal of a 2015 commission decision targeting unwanted robocalls (see 1803160053). Financial and other corporate interests, including some telecom groups, said the commission should narrow its key definition of "automatic telephone dialing systems" (ATDS) subject to TCPA wireless restrictions and give parties more protection when making inadvertent calls to reassigned numbers. Consumer groups, class-action parties and a few others resisted such pleadings, which they said would further open the floodgates to unwanted robocalls. Comments were included in docket 18-152 on a public notice inviting input on the remand and other TCPA interpretations (see 1805150014).