The FCC is poised to take on 3 significant wireless items today (Thurs.), even as the Nextel rebanding order appears bound to seize the headlines at the Commission’s monthly meeting. If all goes as planned FCC will hand down orders designed to encourage wireless carriers to invest in rural communities, promote greater use of smart antennas, and promote a vibrant secondary market for spectrum.
Notable CROSS rulings
Verizon urged the U.S. Supreme Court to deny RIAA’s appeal concerning Verizon’s refusal to reveal to identities of subscribers suspected of offering copyrighted songs through peer-to-peer (P2P) networks. In a June 25 filing, Verizon said the high court shouldn’t accept the case because there are “no extraordinary circumstances” or “split authority” on the issue, and “RIAA’s policy arguments regarding new technologies and requests to expand copyright protections are properly addressed to Congress, not to this court.” The U.S. Dist. Court, D.C., rejected Verizon’s reasons for refusing to comply with RIAA subpoenas in July 2002 and Feb. 2003. But the U.S. Appeals Court, D.C., sided with Verizon and reversed. RIAA has now appealed that decision to the Supreme Court. Verizon said the appeals court correctly ruled that the subpoena power in the Digital Millennium Copyright Act (DMCA) applies “only to circumstances in which potentially infringing material is stored on the Internet service provider’s system or network.” In a separate filing the same day, Verizon offered the court a “conditional cross-petition” for certiorari, which it asked the court to consider if it decided to take RIAA’s appeal. The cross-petition argued issuing subpoenas “outside of a pending case or controversy” would violate Article 3, Sec. 2 of the U.S. Constitution. Verizon said the court should consider Article 3 and related separation of powers issues regardless of whether it grants Verizon’s cross-petition.
FCC Media Bureau Chief Kenneth Ferree told a group of communications lawyers that there are several issues in the media ownership decision by the 3rd U.S. Appeals Court, Philadelphia, (CD June 25 p1) that could warrant Supreme Court scrutiny. Ferree stressed that the Solicitor Gen.’s Office, in consultation with the FCC’s Gen. Counsel, would ultimately make the decision on whether to appeal to the Supreme Court. He also said he had not yet consulted with the commissioners on whether the agency wanted to seek certiorari or take another course. But Ferree told a meeting of the Federal Communications Bar Assn.’s Mass Media Practice Committee that he did feel it was ripe for review. He said it wasn’t a perfect case, “but not a bad one” for the high court, given a number of inconsistencies and potential problems he sees in the ruling.
After the 3rd U.S. Appeals Court, Philadelphia, remanded major FCC broadcast ownership rules (CD June 25 p1), largely based on a “flawed” logic of the diversity index, Comrs. Adelstein and Copps urged the commission to seek public comment on new rules. “We failed to seek comment on the diversity index methodology last time in a rush to judgement. Let’s get something out to start a dialogue about the index,” Adelstein told us. Said Copps: “It would be a great mistake to drag our feet or rehash old arguments.”
Judges of the 3rd U.S. Appeals Court, Philadelphia, Thurs. remanded FCC’s major rules for cross-ownership of newspapers and broadcast stations and the concentration of broadcast ownership in local markets. The court said the FCC should fix flaws in its diversity index, which it used to determine the new local cross-ownership rules.
Members of the House got some of what they wanted and a little of what they didn’t want when the Senate approved a broadcast decency amendment Tues. as part of the Defense Dept. (DoD) Authorization bill (S-2400). The Senate overwhelmingly approved a 9-fold fine increases for indecent broadcasts, but it also approved a stay on the FCC’s media ownership rules -- a provision strenuously opposed by House leadership -- and controversial restrictions on violent broadcasts. Much, but not all, of the contents of Sen. Brownback’s (R-Kan.) S-2052 were approved by a 99-1 vote for the amendment to the DoD bill. NAB said it opposed the amendment.
CHICAGO -- Saying the industry is buoyed by regulatory easements in Washington, SBC Chmn. Edward Whitacre Tues. told a Supercomm 2004 audience Tues. that the company’s plan to spend up to $5 billion to bring fiber to neighborhoods was made possible by the removal of 2 impediments: The economic downturn and “unlawful” wholesale UNE rules. “Now the stage is set for the next generation” of technology, he said.
An application by AfriSpace to launch a satellite to 21 degrees E was dismissed as defective by the FCC. In a letter Wed., the Commission said the application for the broadcasting satellite services (BSS) bird, AfriStar 2, didn’t comply with antenna cross-polarization rules. The Commission requires cross-polarization isolation of 30 dB, but the application proposed 23 dB. AfriSpace didn’t request a waiver. The FCC said the application isn’t prejudiced to refiling.
A panel of VoIP service providers said regulators should develop new policies based on current market conditions. “The different world calls for different policies,” Verizon Senior Vp Kathryn Brown said at a panel sponsored by the New Millennium Research Council in Washington Tues. She said policy-makers should understand that “new rules are appropriate for new technologies and the current rules… are relevant for different purposes and government interests.” NCTA Senior Dir.-State Telecom Policy Rick Cimerman said “only a minimally regulatory framework” would create the right incentives for service providers to “invest, innovate and deploy VoIP services.”
The 3rd U.S. Appeals Court decision on FCC’s media ownership rules could happen “any day now,” said Media Access Project Pres. Andrew Schwartzman, speaking at Cato Institute lunch on media ownership. He predicted a decision from the Philadelphia court no later than June 30, but said “it was very hard to tell” what the court would decide. “It may have to go back to the FCC. They could affirm in its entirety. Only time will tell,” he said. On Feb. 11 the judges questioned the FCC on its diversity index for local cross- ownership and asked the Commission how the court should proceed on challenges to the UHF discount rules during 9 hours of oral arguments (CD Feb. 12 p8). It’s been nearly a year since the FCC relaxed its rules on media ownership.