The FCC should focus on consumer choices in defining advanced telecom capability under Section 706 of the Telecom Act, blogged Mark Jamison, American Enterprise Institute visiting scholar and former Trump transition team member. He noted that the FCC's recent notice of inquiry on whether ATC is being adequately deployed (see 1708110034) asked how to define the broadband-like capability. "Don't customers define broadband every day? Why not simply watch what they do?" he wrote Wednesday. Most of those commenting on the NOI "will be pundits, special interests, and companies with skin in the game," he wrote. "Their self-interests will influence their input. Maybe the FCC is asking the wrong people." He said the FCC should gather data on what customers are buying and correlate it with factors such as geography, demographics and local business economics to identify problems and changing patterns; it could then do a cost-benefit analysis to craft solutions through a reverse auction of USF subsidies. Commissioner Mignon Clyburn voiced concern Aug. 8 about the NOI's desire for comment "on whether the Commission should establish a speed benchmark based on the speed tier consumers are subscribing to" (see 1708080070).

The California Public Utilities Commission urged the FCC to keep net neutrality rules and their legal underpinnings through Communications Act Title II broadband classification. A "review of the comments has not identified any other legal basis for retaining nondiscriminatory rules," said a CPUC reply in docket 17-108. "The CPUC further agrees with commenters encouraging the FCC to act in a way that assures nothing prejudices States’ reserved authority under various provisions of the Communications Act of 1934, as amended by the 1996 Telecommunications Act." Reply comments continued to be posted this week in batches (the extended deadline is Aug. 30). Almost 1.5 million public comments were posted in the docket Tuesday, but only 569 more had been posted Wednesday by late afternoon. The cumulative total of comments is now 21.85 million.

Google parent Alphabet Access said the FCC should approve the Broadband Access Coalition’s (BAC) proposal for the 3.7 GHz band (see 1708100037). But satellite commenters continue to raise concerns. “A range of commenters demonstrate that these changes would improve broadband service across the country, especially in underserved areas and locations where purchasers lack a competitive provider,” Alphabet said in replies in RM-11791. “Because the 3700-4200 MHz band represents 500 megahertz of prime but underutilized mid-band spectrum, the Commission should take action to improve utilization.” Alphabet's comments are important because Google also supports a rival plan for the band by an Intel-led group (see 1708080050), a BAC proponent told us. The BAC plan isn't the answer and would interrupt satellite operations across the band, the Satellite Industry Association said. “Neither the BAC nor any other party has proposed a framework that would adequately protect existing and future satellite operations,” SIA said. “The BAC Petition’s approach would undercut, not advance, its stated goal of bridging the digital divide.” SIA member Intelsat also opposed the BAC proposal. Technology provider NetMoby endorsed the BAC proposal. The 3.7 GHz band is the largest “underutilized swatch of spectrum” below 6 GHz managed by the FCC, NetMoby said. The coalition's three lead members are Mimosa Networks, the Wireless ISP Association and New America’s Open Technology Institute. “Shared access to this high-quality spectrum can narrow the high-capacity broadband gap in rural and other low-density areas, while increasing competition in areas where consumers have only one choice for high-speed service,” Michael Calabrese, director of the Wireless Future Project at New America told us Wednesday. “As a fiber substitute, fixed wireless can fill the void between fiber, where it’s too expensive to trench, and mobile, which cannot yet provide enough capacity to be an adequate substitute for fixed broadband at home or work.” The Schools, Health & Libraries Broadband Coalition is a member of BAC and supports the proposal, Executive Director John Windhausen said: “Rural areas are struggling to find sufficient broadband capacity, and this is especially true of community anchor institutions, who need much higher capacity than residential consumers. 5G technologies, while exciting, are largely an urban play and rural areas are likely to fall further behind unless there is more focus on rural broadband solutions.”

A court adopted a business data service case briefing schedule and format proposed by litigants last week. The 8th U.S. Circuit Court of Appeals Tuesday issued a brief order (in Pacer) granting the CenturyLink motion (in Pacer) Friday on behalf of all petitioners, respondents and intervenors in four challenges to the FCC's April BDS order in Citizens Telecommunications v. FCC, No. 17-2296 and consolidated cases (see 1708170031). Under that motion, opening briefs of two sets of petitioners that believe the order was overly regulatory or overly deregulatory are due Sept. 26, with the brief of respondents FCC and DOJ due Nov. 10, briefs of different intervenors supporting different parts of the order due Nov. 17, and reply briefs of petitioners due Dec. 11 (final briefs incorporating an appendix are due Jan. 2).

FCC Chairman Ajit Pai and new FCC Commissioner Brendan Carr both were on the road Tuesday. Pai was at a tribal consultation at the Twin Arrows Navajo Casino Resort in Flagstaff, Arizona, Tuesday afternoon. The event was closed to the public and the FCC didn’t have an immediate readout on what was said. Wireless carrier officials told us Tuesday that cutting the cost of siting small cells and other wireless facilities on tribal lands remains a challenging area for industry. “Look forward to going west to discuss closing the digital divide with Navajo Nation,” Pai tweeted early in the day. Carr was in North Carolina at the start of a trip focusing on job creation and other economic issues. Carr “will be learning more about the important role that tech and telecom policies can play in creating jobs, spurring investment, and growing the economy for the benefit of all Americans,” a spokesman said. “Great to be in the Tar Heel state today,” Carr tweeted. “Will tour a fiber manufacturing plant & visit a broadband deployment site.” Carr later tweeted: "Visited a Charter call center today in Charlotte. ... Great to hear about the new jobs being added here."

FCC Chairman Ajit Pai will visit Arizona and Nevada this week "to discuss bridging the digital divide and extending digital opportunity to all Americans," said an agency release Monday. The trip will include a meeting with leaders of the Navajo Nation and other tribes Tuesday, a business roundtable discussion with Arizona Gov. Doug Ducey (R) and others Wednesday, a discussion on the siting of broadband facilities on federal lands with the Interior Department's Bureau of Land Management, and a separate infrastructure discussion with Rep. Mark Amodei, R-Nev., and others Thursday. Pai also plans to meet with local broadcasters.

Dynamic Spectrum Alliance members should have bought spectrum in the incentive auction instead of now trying to urge the FCC to reserve space in the TV band, the LPTV Spectrum Rights Coalition said in a newsletter Friday. The coalition has been shopping around a proposal for low-power TV stations to provide the spectrum needed by tech companies such as those in the DSA (see 1708110050), and Friday's remarks were a response to a recent alliance filing (see 1708160062) on the vacant channel proposal. The DSA members want “a free lunch,” coalition Executive Director Mike Gravino said in the newsletter. He disputed that vacant channels need to be reserved for unlicensed use as DSA claimed, and urged the alliance to provide cost/benefit and impact analyses of the vacant channel proposal. “Without this analysis, DSA is not serious about their proposal. And they continue to waste all of our time and resources.” The DSA should “stop blowing smoke up the FCC’s rulemaking process,” Gravino said. “Ask not what the country can do for DSA Charter Members, ask what they are willing to do for all of us, quantify it, and do the fraking [sic] cost/benefit analysis,” he said.

The Voices for Internet Freedom Coalition lauded a column by NAACP interim CEO Derrick Johnson last week supporting strong, enforceable net neutrality rules, but the coalition suggested clarity about a legal foundation based on Communications Act Title II is key. "With the fate of net neutrality on the line, the NAACP urges [FCC] Chairman [Ajit] Pai to respect the congressional intent behind Title II ... to protect the free flow of information and not jeopardize it by removing high-speed broadband from the equalizing framework of Title II," Johnson wrote Wednesday in The Hill. "ISPs should not be able to discriminate against any information, or against any groups of people, based on their profit margins or their whims." The Voices Coalition applauded the NAACP for "standing up to protect the online voices of the Black community and communities of color," and it urged the civil rights organization "and all groups that support the Title II Net Neutrality rules, to clearly state their position during the current FCC reply-comment period," a release Monday said. In initial comments, the NAACP joined the Communications Workers of America in calling Title II "one approach" to justifying net neutrality rules while floating Telecom Act Section 706 as a blueprint for "commercially reasonable" ISP-edge arrangements (see 1707190025). Meanwhile, the Taxpayers Protection Alliance backed the FCC's proposal to "reverse the harmful effects" of the 2015 Title II net neutrality order and return to classifying broadband as a Title I information service. The proposal "would undoubtedly spur greater investment in broadband networks that will benefit the dynamic internet economy" and "protect taxpayers from an expanding bureaucracy and subsidies for expanding taxpayer-funded networks," said TPA's reply Monday in docket 17-108. "Nonexpress" reply comments continued to trickle in after the FCC extended an Aug. 16 deadline to Aug. 30 (see 1708110053). The number of public comments posted in the docket dropped Wednesday through Friday to fewer than 10,000 per day after generally running in the hundreds of thousands daily since early July, reaching 1.55 million Aug. 1. Monday, 94,244 were posted by late afternoon, bringing the cumulative total in the docket to 20.46 million.

Fifth-generation wireless “is right around the corner” and “brings the promise of a high-speed, high-capacity, seamless wireless Internet experience,” but only as long as regulators stay out of the way, FCC Commissioner Mike O’Rielly told the Americans for Prosperity’s Defending the American Dream Summit Saturday in Richmond, Virginia. “It is estimated that such innovations will result in economic benefits to the tune of $500 billion in gross domestic product growth and more than 3 million jobs in the U.S. alone,” O’Rielly said. “The FCC’s job is to provide an environment for such innovation and investment to flourish in the communications technology sector while protecting consumers along the way.” The FCC has wandered off course, O’Rielly warned in remarks, posted by the FCC Monday. “Rather than permitting ‘disruptive’ technologies to continue to develop, the Commission favored regulatory ‘know-it-all-ism,’” he said. The result “has been the creation of market uncertainty, leading to a rethinking of network investment.” Some changes before the FCC may seem small, but really add up, he said. For example, he said, the FCC is considering changes to its wireless and wireline infrastructure siting rules. “These are the types of rule changes that will accelerate access to 5G networks that enable life-saving innovations, such as remote surgery and vehicle collision avoidance systems,” he said. “Not to mention, they will allow self-driving cars and other breakthroughs we can’t imagine today.”

NARUC asked the FCC to expand its Broadband Deployment Advisory Committee to include more state and local officials. Of 30 BDAC members, 21 represent the broadband industry while only two represent state governments, two represent local governments and one represents tribal government, said an association letter Monday in docket 17-83. It said one NARUC and six local government representatives are among the 58 BDAC working group members. "It is self-evident, that any recommendations will necessarily reflect the composition of the committee. A simple review of the current roster suggests the committee is heavily weighted in favor of those seeking attachments to poles. The concept for this committee was a good one, but the usefulness of any recommendations is likely to be undermined by this imbalance," said the filing. It also said BDAC had only two members from power companies, which are also regulated by state regulators. NARUC noted it passed a resolution in July urging the FCC to add state and local government members to BDAC and its working group "to an amount that equitably balances" the broadband industry membership (see 1707200014). An FCC spokesman said: “BDAC members were chosen from a diverse set of stakeholders, with the goal of forging consensus on how to eliminate unnecessary barriers to deployment of high-speed Internet. We sought representation from state, local, and Tribal government, rural and urban Internet service providers, independent network builders, pole and conduit owners, trade associations, and non-profit organizations. We believe the makeup of the BDAC reflects the diversity we sought. Our broader goal is one everyone can agree on: accelerating access to robust, affordable, high-speed Internet for all Americans.” He also noted BDAC's vice chair is a state official: Kelleigh Cole, director, Utah Broadband Outreach Center, Utah Governor’s Office of Economic Development. BDAC members said Friday initial recommendations are targeted for Nov. 9 (see 1708180043).