U.S. Dist. Court, Roanoke (Va.), denied Cox Cable’s motion to dismiss class action suit brought by subscribers challenging MSO’s passthrough of franchise fees on cable modem service. Plaintiff Kimberly Bova argued that passthrough of franchise fees violated Communications Act because cable modem service was “telecommunications” service and under Act Cox couldn’t charge franchise fees for telecom services. Bova said Cox continued to collect franchise fees on Internet service even after 9th U.S. Appeals Court, San Francisco, ruling that it was telecom service. Cox said its high-speed Internet service was either cable service or information service, so its franchise fees were legal. MSO also said FCC had exclusive jurisdiction to determine propriety of passthrough of cable franchise fees and Act didn’t provide private right of action for subscriber challenge. Chief Judge Samuel Wilson said court denied Cox’s motion to dismiss on substantive grounds because it found that plaintiff “has stated a claim upon relief can be granted.” He said ruling didn’t cover jurisdictional issues raised by Cox.
FCC Wireless Bureau seeks comment on petitions for temporary waiver of its deadline by which digital wireless systems must be capable of transmitting 911 calls from TTY devices. All of petitioners are small, rural carriers providing Commercial Mobile Radio Service (CMRS) using Time Division Multiple Access (TDMA). Petitioners said several major wireless carriers had indicated their intention to migrate their TDMA deployments to other, noncompatible digital technology, making June 30 deadline burdensome. Comments are due April 8, replies April 18.
Special Temporary Authority (STA) to operate terrestrial repeaters in 60 U.S. markets expired Mon., XM Satellite Radio said in annual 10-K report filed with SEC Tues. XM filed for STA extension March 11 and under FCC rules can continue operating repeaters “pending a final determination of our extension request,” filing said.
Verizon Tues. withdrew its pending Sec. 271 application for N.J., telling FCC it needed to address some “procedural concerns” relating to recent increases in nonrecurring charges to CLECs for “hot cutovers” of customers from Verizon to CLEC service. Verizon said it had met checklist, charged some of lowest interconnection and UNE rates in country and achieved first “perfect” score on 3rd party OSS test. Verizon said it would address hot cut issue and would refile promptly, which would start Sec. 271 clock all over again. CLEC AT&T said Verizon was forced to withdraw in face of certain rejection because its problems with hot cuts went beyond mere procedural issues. Hot cut is process used to disconnect line over which customer already is receiving service and to connect it to another carrier’s switch. FCC Chmn. Powell said that “despite extensive conversation and collaboration on this application, questions remain regarding whether Verizon satisfied the rigorous substantive requirements of the [Sec. 271] statute and the FCC’s precedents.” FCC also cited “omission of critical evidence” in application. Verizon filed its N.J. long distance application with FCC Dec. 20. Both N.J. Board of Public Utilities and Dept. of Justice endorsed application.
FCC said MCI and AT&T violated Communications Act by way they provided directory assistance to consumers. Commission granted requests for declaratory ruling filed by Curt Himmelman, Young Soon Oh, Bernie Schatz. Petitioners alleged MCI and AT&T had failed to provide consumers with 2nd listing in directory assistance calls. Commission said practices were unjust and unreasonable.
Senate Minority Leader Lott (R-Miss.) is insisting that his opposition to nomination of Jonathan Adelstein to FCC (CD March 18 p2) has nothing to do with fact that Adelstein works for Senate Majority Leader Daschle (D-S.D.), who joined in opposition to judicial nominee from Lott’s home state. Lott spokesman said Tues. that minority leader preferred Andrew Levin, top aide to House Commerce Committee ranking Democrat Dingell (Mich.). Levin withdrew his nomination when it became clear Daschle wanted Senate staffer as nominee for vacant Democratic seat. “Senator Lott supports this individual [Levin] to fill the Democratic seat at the Commission because he has the experience necessary to deal with the telecommunications issues that come before the Commission,” spokesman said, declining to say why Lott didn’t express his preference for Levin during vetting process last year. Lott earlier had questioned Adelstein’s youth, although Daschle staffer is older than FCC Chmn. Powell and Comr. Martin. Lott first went public with opposition to Adelstein shortly after Senate Judiciary Committee on party- line vote rejected nomination of Charles Pickering to federal appeals court.
FCC proposed to fine WWDC(FM) Washington, D.C., $6,000 for broadcasting telephone conversation without informing other party to conversation. Enforcement Bureau dismissed station’s contention that case was different from Citicasters precedent because material broadcast was “generic in content.”
ORLANDO -- FCC Chmn. Powell told CTIA Wireless 2002 conference here Tues. that while Commission viewed wireless industry as “poster child” for competitive markets, increased substitution of mobile telephony for wireline services meant increased pressure from consumer expectations. “Wireless is an extraordinary success,” Powell said: “In some sense, the period that it’s entering into now is managing the fruits of its success.” But maturation of service doesn’t necessarily mean more regulation, Powell said: “That’s a reluctant trigger, not an affirmative one.” In Q&A with CTIA Pres. Tom Wheeler, Powell disagreed with suggestion that industry had been “castigated” for taking proactive steps in areas such as E911 and wireless priority access service (PAS).
James H. Barr, 95, retired FCC official, died March 9 of pneumonia at his Silver Spring, Md., home. After studying engineering at Ga. Tech, he spent 35 years at FCC, starting in N.Y. field office in 1938. He transferred to Washington 2 years later, holding various positions, including as chief of Common Carrier and Safety & Special Services Bureaus, before retiring in 1973. He then was consultant for various telecom companies. Wife, son, 3 daughters survive.
FCC is seeking input on ways to improve its electronics licensing systems, it said in public notice Mon. Comments are due to Managing Director by March 28 -- 202-418-7835.