Judges pressed the FCC to justify tribal Lifeline support limits and procedures, while questioning arguments of industry and tribal petitioners challenging the rules. A three-judge merits panel of the U.S. Court of Appeals for the D.C. Circuit heard oral argument Thursday on the 2017 order that barred resellers from receiving enhanced tribal Lifeline subsidies and targeted the USF support to rural areas (see 1711160021) in National Lifeline Association v. FCC. No. 18-1026. A separate motions panel of three Democratic appointees Aug. 10 stayed the tribal rules pending review by the merits panel (see 1808100027).

A First Amendment challenge of FCC kidvid rules could be successful yet politically fraught, broadcast attorneys told us, reacting to Commissioner Mike O'Rielly's remarks at a Media Institute event Wednesday evening. In a speech on First Amendment threats, O'Rielly cautioned opponents of the proceeding that they “might want to reconsider” opposing his deregulation effort because a successful First Amendment challenge could lead to the rules being struck down altogether. Legal scholars "quite convincingly" have made the case kidvid rules are content-based restriction that don't fulfill a compelling government interest, and thus are contrary to the Constitution, he said.

FCC Office of Engineering and Technology Associate Chief Bruce Romano joins Wiley Rein as consulting counsel ... Disney and Pixar Animation Studios President Ed Catmull retires, effective year-end, when Pixar President Jim Morris and Disney Animation Studios President Andrew Millstein report to Disney Studios President Alan Bergman; Catmull won't be replaced ... New York Public Radio names Depelsha McGruder, ex-Viacom, chief operating officer.

The FCC scheduled a conference call Nov. 1 at 2 p.m. EDT with tribal governments on the agency's notice of inquiry to consider creating a $100 million telehealth pilot program, said a public notice Wednesday of the Office of Native Affairs and Policy and the Wireline Bureau Telecom Access Policy Division. The FCC plans a workshop for tribal authorities and members Nov. 14-15 on the Nez Perce Reservation in Lewiston, Idaho, said another PN. It said the workshop will include a presentation on the recent Connect America Fund Phase II auction and the upcoming Mobility Fund Phase II auction, both designed to support rural broadband deployment, including on tribal lands.

We incorrectly reported these people's names: Center for Democracy & Technology CEO Nuala O’Connor (see 1810090056); Facebook Vice President-Product Management Guy Rosen (see 1810030034); and National Tribal Telecommunications Association President Godfrey Enjady (see 1810040055).

We incorrectly reported these people's names: Center for Democracy & Technology CEO Nuala O’Connor (see 1810090056); Facebook Vice President-Product Management Guy Rosen (see 1810030034); and National Tribal Telecommunications Association President Godfrey Enjady (see 1810040055).

A report shows mobile virtual network operators "are an integral part of the wireless market," undermining a "largely discredited" FCC proposal to exclude resellers from participating in Lifeline, TracFone filed, posted Tuesday in docket 11-42. It asked that an attached report by Duke University economics professor Michelle Connolly, a former FCC chief economist, be included in Lifeline dockets. The report was underwritten by T-Mobile. TracFone called attention to a Connolly statement: "Higher income households tend to have subscriptions to both fixed broadband and wireless telephony/broadband, while younger adults, non-whites, and lower-income households are more likely to exclusively use wireless telephony/broadband to connect to the internet." TracFone said, "Many of those lower-income households are Lifeline-eligible and obtain their voice telephony and internet access service through the federal Lifeline program." It said the report illustrates why the prior FCC's minimum service standards need to be revisited "or at least applied in a flexible manner such that Lifeline consumers, rather than the Commission, determine how best to use" their service. It noted its broadband and voice "units" proposal. The National Lifeline Association and two tribes challenging FCC Lifeline tribal restrictions, including a ban on resellers receiving enhanced support, disputed commission allegations they inaccurately described comments from Smith Bagley, a facilities-based provider (here, here, in Pacer). U.S. Court of Appeals for the D.C. Circuit Judges Judith Rogers, Thomas Griffith and Raymond Randolph are to hear oral argument Oct. 25 on National Lifeline Association v. FCC, (in Pacer) No. 18-1026: Rogers is a Democratic appointee; Griffith and Randolph are Republican appointees. A panel of three Democratic appointees stayed the FCC restrictions (see 1808100027).

The United Keetoowah Band of Cherokee Indians, other tribes and supporters detailed objections to a March FCC wireless infrastructure order, at the U.S. Court of Appeals for the D.C. Circuit (see 1808310038), in United Keetoowah Band v. FCC, No. 18-1129. “For decades, Tribes, carriers and other parties worked cooperatively to ensure that construction of cell phone infrastructure did not desecrate sacred or historic locations,” said the lead pleading. The Order exempted tens of thousands of expected antenna facilities” from environmental and historic reviews, the filing said. Tribes are no longer notified of small-cell deployments, the tribes said. “The FCC shortened the timeline for Tribal review, hindering Tribal ability to meaningfully participate in the review process. It reversed policy on Tribal fees, contrary to guidance by the Advisory Council on Historic Preservation, by providing carriers need not pay upfront fees to support the cost of Tribal review.” A brief led by the Blackfeet tribe also asked the court to overturn the March order. Plaintiffs “challenge FCC’s attempts to excuse itself from its most basic federal legal obligations to consult with Indian tribes on a government-to-government basis, as both the National Environmental Protection Act (NEPA) and the National Historic Preservation Act (NHPA), and their corresponding regulations plainly require.”

Competitive carrier Smith Bagley Inc. asked the FCC to investigate data Verizon submitted for the FCC’s move to decide which parts of the U.S. are eligible for support under the Mobility Fund II program. “SBI would not be making this request if Verizon’s data had any colorable claim of accuracy, but the fact is that Verizon’s data submission glaringly, systematically, and implausibly overstates the extent to which Verizon is currently delivering 5 Mbps 4G LTE broadband in SBI’s Tribal and rural service areas,” SBI said, posted Thursday in docket 10-90. It said Verizon’s data raises concerns about the challenge process for truly unserved areas. Verizon didn't comment.

A coming FCC draft order would extend operations expense relief to more tribal carriers, including Mescalero Apache Telecom and Sacred Wind Communications, said Chairman Ajit Pai. He responded to Sen. Tom Udall, D-N.M., who wrote to support the two carriers' petitions to reconsider (see 1805310032) an April order that allowed tribal-oriented carriers to recover higher opex costs from USF but excluded carriers that had deployed 10/1 Mbps broadband to 90 percent or more of locations (see 1804050028). Pai agrees the relief "did not go far enough" and believes "it was inappropriate to exclude carriers" such as Mescalero and Sacred Wind, which argue their actual deployment levels are below the threshold. "I have directed staff to circulate an order in the near future to fix this mistake," he wrote, hoping colleagues will be supportive. "The letter is very encouraging" because the two carriers "need this relief" and "the sooner the better," emailed consultant Randy Tyree Friday. Tyree, who represents Mescalero and the National Tribal Telecommunications Association, said the entire New Mexico congressional delegation is supportive.