FCC indecency enforcement should be major topic of confirmation hearings for new Commission nominees, Morality in Media said in letter to members of Congress. Group also said other Senate and House hearings should be held on issue, particularly since TV stations “might as well have diplomatic immunity” on indecency complaints. It said no TV station had been fined in 20 years, and even radio station fines for indecency were rare: “It would appear that the FCC issues just enough [fines] relating to indecent radio broadcasts to deflect most criticism, but never enough in numbers and in amounts to deter indecent programming.”

Ex-FCC Chmn. William Kennard has joined Carlyle Group, private equity firm, as managing dir. of group’s telecom and media practice. Kennard said job would give him opportunity to forward his long-time goal of “expanding communications opportunities worldwide.”

Tentative witness list for Wed. (May 2) Senate Judiciary Antitrust Subcommittee hearing on Telecom Act’s impact on competition: Former FCC Chmn. Reed Hundt, senior advisor, McKinsey & Co.; Tex. PUC Chmn. Patrick Wood; Cox Communications CEO James Robbins; Time Warner Telecom CEO Larissa Herda; AT&T Pres. David Dorman. Hearing is 2 p.m. in Dirksen 226.

Under then Chmn. Reed Hundt, FCC was “the most intensely regulatory” of broadcasting of any Commission in the 23 years that former Comr. James Quello was on Commission, Quello said in his new book, My Wars: Surviving WWII and the FCC. “The difference in the way Chairman Hundt and I viewed the First Amendment can be summed up in two sentences,” Quello said. “I see the Bill of Rights as a limitation upon government action; Chairman Hundt apparently saw it as a regulatory mission statement. Second, I considered freedom of expression to be the result of the government’s abstention from editorial decision-making; Chairman Hundt evidently saw it as a gift to be bestowed by politically appointed bureaucrats.” Person Quello called “Attila the Hundt” probably got more mentions in Quello’s book than any other, although it’s studded with mentions of hundreds of others that will be familiar to communications industry. It criticizes Hundt, among other things, for “assumption of unilateral power” at FCC, claiming public interest values were supported by First Amendment, being inflexible on kidvid, pressing FCC indecency actions. Book also repeats many of stories that Quello has used in his speech- making, as well as including detailed analysis of First Amendment and its effect on industry. He devoted nearly half of book to his World War II and broadcasting experiences (before joining FCC), saying that even though FCC can be “blood sport,” his war experiences put it into perspective. Book, just under 150 pages, is available from Alexis de Tocqueville Institution in Arlington, Va.

Mo. PSC suspended for 4 months Southwestern Bell Telephone (SBT) proposed tariff change to introduce 24-cent “payphone use charge” on all calls placed from its payphones using credit cards, prepaid or postpaid calling cards, 3rd-number billing or collect calling. PSC staff said fee would violate terms of SBT price cap regulation agreement that bans increases above current cap levels on local services, including payphones, without cost justification. SBT said fee wasn’t rate increase, just cost recovery mechanism to recoup cost of per-call compensation FCC requires incumbent telcos to pay to other payphone service providers and that FCC expressly allows to be passed on to phone users. PSC said main issue was whether usage fee was appropriate under price cap agreement. Intervenor registration deadline is May 16.

White House formally sent nominations of 2 new FCC Commissioners to Senate. As previously announced, appointees are Kathleen Abernathy, who will fill Comr. Furchtgott-Roth’s slot (5 years from last July 1), and Kevin Martin, who takes former Chmn. William Kennard’s position (5 years from this July 1). Chmn. Powell was nominated last week for an additional 5 years, beginning next July 1. Slate of nominees didn’t include Mike Copps, who White House has said will fill vacant Democratic seat. His name still is expected to be included before Commerce Committee reports nominations.

Holding that municipalities had “very limited and proscribed role” in regulating telecommunications, 9th U.S. Appeals Court, San Francisco, last week struck down telecom ordinances of Auburn and more than dozen other Wash. cities that, among other things, required telecom providers to pay application fees, file detailed disclosure of matters such as maps, corporate policies and financial and technical qualifications and provide cities with network capacity. In challenge to ordinances brought by Qwest, court ruled that Sec. 253 of Telecom Act barred all state and local regulations that “prohibit or have the effect of prohibiting” any company’s ability to provide telecom services unless regulations fell with statute’s “safe harbor” provisions relating to local regulation of rights-of-way. “The preemption is virtually absolute and its purpose is clear -- certain aspects of telecommunications regulations are uniquely the province of the federal government and Congress has narrowly circumscribed the role of state and local governments in this arena,” court said. Three-judge panel conceded that Act didn’t define management of public rights-of-way, but said it relied, as several federal courts had done, on FCC interpretation as meaning “control over rights-of-way itself, not control over companies with facilities in the rights-of-way.” Finding that several provisions violated Sec. 253, court struck down: (1) Requirement that companies submit lengthy and detailed application form to enable cities to determine financial soundness, technical qualifications and legal ability to provide telecom services. Such requirements aren’t related to regulation of public rights-of-way, court said. “The upshot of the application process is to regulate the provision of telecommunications services rather than to regulate the rights-of- way.” (2) Requirements for reporting transfer of ownership and stock. Although cities may want to “have a right to know” who owns shares in the telecom companies that use rights-of-way, court said, municipal regulation of stock transfers “extends far beyond management of rights-of-way.” (3) Requirements that franchisees offer “most-favored-community” statutes (best available rates and terms) and provide free or excess capacity for use of cities. Those requirements bear no relation to rights-of-way management, but focus solely on rates, terms and conditions of service, court said. (4) Provisions giving cities “unfettered” discretion to grant, deny or revoke franchise based on “unnamed factors.” Grant went far beyond limits of anything city deemed to be in public interest, court said, holding that such ordinances were too vague and too broad to comply with Sec. 253. Referring to cities’ argument that stock ownership was linked to company’s financial well-being that ultimately could affect its use of rights-of-way, court said: “Under this semantic 2-step, Sec. 253 will have no limiting principle. The safe harbor provisions would swallow whole the broad congressional preemption. Municipalities could regulate nearly any aspect of the telecommunications business.”

Spectrum allocation, regulations on space imaging and expediting process for satellite export controls are 3 main issues on tap for Aerospace Industries Assn. (AIA), Bruce Mahome, AIA dir.-space policy, said Mon. after news briefing in Washington on declining R&D federal budget for aerospace research. AIA has been working “to reassure [FCC International Bureau] that it should continue to back the industry,” said David Logsdon, AIA mgr.-space operations, and “put money into [R&D] efforts.” “Some people in the FCC are nervous the satellite industry can deliver workable systems after problems with Iridium and Globalstar” and satellite phones, he said.

HOT SPRINGS, Va. -- FCC under Chmn. Powell will be “flexible” and will focus on core issues of agency organization, enforcement and spectrum management, according to staffers at FCBA Annual Seminar here over weekend. Chief of Staff Marsha MacBride said Powell wasn’t formulating specific policy positions, instead was addressing “change management” as new Commission took shape. Chief Legal Adviser Peter Tenhula also said no new rules currently were being contemplated. Rather than force agenda, he said, “our priorities are to do what we have to do when we have to do it.”

It’s hard to believe building access issue still is in play at FCC because agency intervention is “unconstitutional, unauthorized and unnecessary,” Gerry Lederer, vp, Building Owners & Managers Assn. (BOMA) said Mon. Speaking at FCBA Brown Bag Lunch at Fleischman & Walsh, Lederer said BOMA members actually liked CLECs because they offer tenants choice, thus enhancing building amenities. “We want these folks [CLECs] to succeed” because they increase property values, he said. What BOMA doesn’t want is intrusion by govt., he said, because “it’s unauthorized” intrusion onto public property. “We aren’t utilities.” Many office buildings do allow competitive access but “there are practical space limits in our risers,” Lederer said. ALTS Pres. John Windhausen, also on program, complimented Lederer for putting “a really good face on bad arguments.” Windhausen said CLECs faced “endless negotiations,” high fees or requests for part of revenue when they went to property owners seeking entry. “The biggest problem is delay,” he said. Windhausen also rebutted BOMA’s legal arguments: (1) It’s not unconstitutional to demand access to multitenant buildings because owners already have let ILECs in. (2) “Takings” argument doesn’t work because CLECs are willing to pay for access, he said. (3) FCC has authority to regulate inside wire because it used to do so. It may have deregulated inside wiring in 1980s but “it certainly can regulate it now without a change in the law.” Windhausen said FCC last year prohibited exclusive contracts for telecom services in multitenant buildings but needed to go further. Lederer questioned Windhausen’s concern about tenants’ being deprived of choice: “The facts don’t prove it out. When asked in a survey if they are served by the provider of their choice, 99% of tenants said yes.” Noting that car phones operate in cars, Lederer asked whether FCC should regulate cars the way it wants to regulate buildings: “How far does this go?” Marketplace will work as long as there’s not “invidious government intrusion,” Lederer said. Laurence Bensignor of developer Van Metre Companies, described planned community in Va. where one telecom provider was selected to develop sophisticated infrastructure that offers phone, video home security, Internet services. Residents can select another provider but in essence will be paying twice because they still must pay for mandated developer-selected provider, he said. Bensignor said that arrangement was best way to build infrastructure. Lederer said that arrangement wouldn’t work in office buildings.