Whether Tues. Supreme Court decision dismissing appeal of 1995 Adarand case will have any impact on pending appeal of U.S. Appeals Court, D.C., rejection of FCC EEO rules depends on who you ask. Govt. official, who asked not to be named, said order would have no impact at all, while Andrew Schwartzman of Media Access Project believed it would. Had Supreme Court issued decision on new Adarand appeal (dealing with nonbroadcast matters but cited by Appeals Court in twice rejecting FCC rules as unconstitutional [CD Jan 17 p1]), he told us, ruling “would have had a dramatic impact” on pending appeal of rejection of FCC rules by lower court and would have made it much more likely that Supreme Court would accept that appeal. Govt. didn’t appeal FCC EEO ruling, but Minority Media Telecom Council (MMTC) did. After first accepting case, Supreme Court refused to issue opinion in latest Adarand appeal because, it said, new issues were brought up that never were considered by lower courts: “Petitioner [Adarand Constructors Inc.] urges us to take on this task ourselves and apply strict scrutiny to a complex web of statutes and regulations without benefit of any lower court review.” Justices haven’t announced whether they would accept MMTC appeal of FCC rules and U.S. Solicitor Gen. hasn’t filed govt.’s position with Supreme Court. Appeals Court rejected first set of FCC EEO rules in 1998, 2nd set of rules last Jan. In not joining MMTC appeal, FCC Chmn. Powell has said agency soon will come up with new set of EEO requirements that it expects will withstand court review.
National Rural Telecom Co-op (NRTC) won’t support proposed EchoStar-Hughes DBS merger “the way it’s presently constructed,” but remains open to negotiations, Senior Vp Industry-Member Relations Andrew Brown told us Wed. NRTC, Pegasus and WSNet could play key roles in deciding outcome of antitrust review, industry officials and sources said. Pegasus hasn’t publicly announced its position. Rural companies appear ready to block deal unless EchoStar makes several unspecified concessions. Most analysts still believe companies face difficulty getting transaction approved. Merger is going to have “significant obstacles” and is “likely to be rejected” following Dept. of Justice review, Legg Mason analyst and former FCC staffer Blair Levin told us: “It is possible that the deal could ride a combination of anticable sentiment and lack of business opposition to garner approval, but we still believe the odds still favor government officials’ saying no.”
House Rules Committee is engaging in continuing consultative process that could determine whether previously rejected line-sharing amendment to data deregulation bill could be revived. Amendment, which would have modified broadband legislation (HR-1542) by House Commerce Committee Chmn. Tauzin (R-La.) and ranking Democrat Dingell (D-Mich.), was introduced by Reps. Luther (D-Minn.) and Wilson (R-N.M.) in Commerce markup earlier this year but died. Luther-Wilson amendment, which is supported by CLEC industry, would strip Tauzin-Dingell language that could block CLEC access to ILEC unbundled network elements (UNEs), Luther’s Senior Legislative Asst. Christian Fjeld said Wed. at ALTS conference in Arlington, Va. However, Staff Dir.-Technology Don Green said it was “too early to speak authoritatively” as to when -- or whether -- Rules Committee would act formally on Tauzin-Dingell. Rules Committee “at some point” may consider whether to send to House floor HR-1542 or competing version of bill that received unfavorable referral by House Judiciary Committee.
SBC/Ameritech formally asked Ill. Commerce Commission to support its Sec. 271 bid to FCC and filed preview of application it intends to present to FCC next year. Application filed with ICC includes evidence that Ameritech hopes will prove its claim that it complies with Telecom Act’s interLATA long distance checklist. ICC last month said it would consider Ameritech’s bid in 2 stages, first addressing checklist items not related to Ameritech’s operation support systems, which are being tested by KPMG Consulting. Second stage in Case 01-0662 will address OSS- related issues and any matters left unresolved from Phase One.
Competition Policy Institute plans conference, “Keeping Telecom Competition on Track,” Dec. 6-7, Washington Hilton. Conference was rescheduled from Sept. 13-14. Planned speakers include FCC Comr. Abernathy and NTIA Dir. Nancy Victory. -- 202-835-0202.
James Bradshaw, FCC Mass Media Bureau expert on electronic filing, reported Wed. to lawyers and engineers on activity by agency in last 12 months that he said “enhances and improves” system. But, when it came time for questions at Assn. of Federal Communications Consulting Engineers (AFCCE) lunch, he faced complaints that system still had many bugs. “It’s going to be interesting,” as FCC attempts to fix glitches, he said, conceding “we've been struggling internally.” One recurring complaint was that electronic filing system often went down on Fri. evening and there was nobody to put it back online until Mon. “That’s fairly typical,” Bradshaw said, but on filing deadlines on major issues Commission keeps someone in place until around 11 p.m. to make sure system is operating properly. Commission has “drastically reduced” number of fee payments that don’t get associated with proper filings -- as well as attachments and exhibits that get misfiled, he said. Parties are permitted 2-week delay in paying fees after application is filed, Bradshaw said, and things move much faster if payment is made by credit card. Where fee payments formerly were handled manually (resulting in delays), they now are handled electronically and can go on public notice day after fee is received, he said. Starting Mon. (Dec. 3), he said, all electronic filings must be made using registration number (FRN) assigned by FCC. Also, he said, Commission this week added ability for parties to make AM inquiries online to go with electronic system already in place for TV and FM. Bradshaw is deputy chief-engineering of Audio Div. of Mass Media Bureau.
FCC Office of Engineering & Technology will host tutorial by ArrayCom on Time Division Duplex technology at 9:30 a.m. Dec. 3 in FCC hq. -- Kent Nilsson, 202-418-0845.
Advanced Communications (AC) is continuing legal fight to win extension of time to launch and operate DBS satellite. Company based in Little Rock filed appeal in U.S. Appeals Court, D.C., to rescind Oct. 18, 1995, FCC order that denied it extension. Company is seeking redress in court after losing lower court battle. Respondents in case include DirecTV, Dominion Video, EchoStar, MCI and U.S. Satellite Bcstg., each of which opposed AC’s petition during FCC proceeding. Advanced argued that decision violated federal law and was arbitrary and capricious because no other party previously had been denied extension for DBS system and FCC since had continued practice of granting such requests. Appeal comes as govt. evaluates proposed merger of DBS operators EchoStar and DirecTV. Should AC prevail, it could become DBS competitor for merged EchoStar-DirecTV unit.
CompTel urged FCC to establish “procompetitive procedures” for upcoming 3-year review of unbundled network elements (UNEs). In review, Commission will consider whether there’s any need to alter list of UNEs that ILECs share with competitors. CompTel Pres. Russell Frisby said CLECs needed to know how FCC would conduct review so they could prepare for “premature attempts by the ILECs to remove UNEs from the national list.” It urged FCC to: (1) Establish May 18, 2003, as earliest date that any party could seek to have a UNE removed from mandatory list. (2) Convene Federal-State Joint Conference to get feedback from state regulators. (3) Clarify that 3-year review was “not an inquiry into all national UNEs so any party seeking to scale back or remove a UNE bears the burden of proof.” (4) Refuse to consider removing or scaling back UNE “if the requesting ILEC has not complied with its obligation to provide the UNE for a commercially reasonable period of time.”
As part of proposed spectrum swap with public safety users, Nextel asked FCC to put rule changes in place in next 6 months, including assigning 10 MHz of mobile satellite spectrum to carrier. In White Paper submitted to FCC last week and made public Tues., Nextel cited critical spectrum needs that public safety community faced following Sept. 11 terrorist attacks. Public safety community, in turn, offered support, contingent on funds’ being provided to cover all implementation costs that such licensees would face. Nextel has pledged to provide up to $500 million for equipment retuning and other transition expenses. “The Nextel proposal is a major step in the right direction,” said Nov. 21 letter to FCC Chmn. Powell from Assn. of Public-Safety Communications Officials-International (APCO), International Assn. of Fire Chiefs, International Assn. of Chiefs of Police, others. Proposal would realign frequencies at 700, 800 and 900 MHz and 2.1 GHz and more than double public safety’s current allocation of 9.5 MHz of noncontiguous spectrum at 800 MHz (CD Nov 23 p1).