FCC hasn’t decided how to react to “regulatory freeze” memo sent to agency by White House Chief of Staff Andrew Card Mon. (CD Jan 23 p1), although it does believe freeze is voluntary for independent agencies like FCC, Commission sources said. Industry sources said they couldn’t recall similar memos in past transitions. White House hadn’t returned our calls at our deadline.
FCC Wireless Bureau is seeking comment on informal request by International Assn. of Fire Chiefs/International Municipal Signal Assn. (IAFC/IMSA) for frequency coordination certification in 800 MHz and 900 MHz public safety pool Private Land Mobile Radio (PLMR) frequencies. In 1998, FCC created plan for reallocation of 700 MHz band to public safety use, allowing any of certified frequency public safety coordinators, including IAFC/IMSA, to provide coordination. Agency hasn’t taken similar steps to alter frequency coordination process for 800 MHz and 900 MHz PLMR bands. Assns. contended that because of similarities between PLMR systems in bands such as 700 MHz and 800 MHz and 900 MHz public safety channels, IAFC/IMSA would be equally qualified to coordinate applications in those upper bands. Comments are due Feb. 21, replies March 8. Separately, bureau is seeking comments on similar request last month by American Assn. of State Highway & Transportation Officials (AASHTO). Request involves frequency coordination certification in 800 MHz PLMR public safety radio service frequencies. Comments also are due Feb. 21, replies March 8.
Delivering major blow to broadcasters, FCC tentatively concluded that cable operators didn’t have to carry both analog and digital signals of TV stations during digital transition. In order adopted by 4-1 vote with at least one partial dissent Thurs. but not released until late Mon., Commission said that, “based on the existing record, such a requirement appears to burden cable operators’ First Amendment interests more than is necessary to further a substantial governmental interest.” But agency didn’t rule out dual carriage requirement completely, seeking further comment on need for it to hasten digital transition, updated channel capacity from cable operators, digital compression advances and status and scope of digital retransmission consent agreements between broadcasters and MSOs.
LAS VEGAS -- Broadcasters and other regulated industries can expect from new FCC “a greater feel for the law… and a more humble approach,” FCC Comr. Furchtgott-Roth said here. Commission will regulate “only what the law requires… and it will be a greater day at the FCC,” he told ALTV panel Mon. afternoon. Michael Powell, who had been FCC chairman for just a few hours, deferred first question from ALTV’s David Donovan -- on what changes broadcasters could expect under Bush Administration -- to his Republican colleague, after which Powell said “my final sincere hope” is that agency would become “more efficient and responsive” to needs of those it regulated: “The greatest enemy of regulation is… uncertainty.” After panel, longtime Washington lawyer told us: “We're in for a sea change of deregulation if you follow their comments to their logical conclusion.”
FCC called Tues. for public input on how to implement new law that requires schools and libraries receiving federal technology dollars to block access to online child porn and other inappropriate materials. Children’s Internet Protection Act (CHIP), signed into law Dec. 21, prohibits libraries and schools from receiving discounted Internet access, Internet services and internal connection services under Sec. 254 of Communications Act unless they put Internet safety policies in place and certify that they have done so. In its Jan. 23 rulemaking (NPRM), FCC said it sought comments on several issues, including: (1) Whether agency’s conclusion that most efficient way of obtaining required certification would be to modify existing FCC form to include statement that recipient was in compliance with CHIP or that it didn’t apply. (2) Whether FCC Form 486 should be used for CHIP certification. (3) Who should make certifications. (4) When schools and libraries must certify they're in compliance. (5) Whether rules are needed to implement provisions of law that set out procedures for remedying noncompliance. CHIP has been fiercely opposed by industry and civil liberty groups as well as Clinton Administration. Comments are due 15 days after publication in Federal Register -- www.fcc..gov/e-file/ecfs.html. American Library Assn. (ALA) criticized short comment period. “It’s a very complicated issue” and the FCC has allowed only 15 days to comment, ALA Washington Office Exec. Dir. Emily Sheketoff said. Moreover, she said, schools and libraries were required to submit their applications for e-rate discount by Jan. 18. However, their spending plans had to be submitted before law was passed. Those whose plans are approved for funding in June now will have to go back and certify something that wasn’t called for in plan, Sheketoff said: “It’s a basic unfairness you don’t expect from the federal govt.”
U.S. Appeals Court, D.C., sided with U S West Tues. and remanded FCC order that had denied company’s request for forbearance of dominant carrier regulation for provision of high- capacity services in Phoenix and Seattle. Court ruled that FCC was inconsistent when it denied U S West’s petition for lack of reliable data on market share. To gain lessened regulation, U S West had to prove it faced competition for provision of high- capacity services in those 2 cities. In opinion written by Chief Judge Harry Edwards, court said FCC in past had relied on other measures such as elasticity to determine existence of competition and in one case made nondominance determination “in the absence of any market share data.” Court remanded case because FCC never specifically said market share was “essential” to prove competition, Edwards said. Court denied related petition by AT&T and WorldCom that questioned appropriateness of FCC’s telling U S West it still might qualify for pricing flexibility under separate process even though it lost forbearance request. AT&T and WorldCom argued that such language was backdoor way of giving U S West relief but Edwards called that argument “specious claim.” He said it was “clear that the forbearance order does nothing more than indicate that U S West is eligible to apply for relief under the pricing flexibility order.” However, court also denied suggestion by FCC counsel in oral argument that availability of pricing flexibility process lessened need for forbearance requests. Edwards said “U S West and other such petitioners are entitled to pursue forbearance under [Sec. 10 of Telecom Act] without regard to the pricing flexibility order.” Court panel also included Judges David Sentelle and Raymond Randolph.
FCC issued notice of proposed rulemaking that begins re- examination of whether there is continued need for spectrum cap and cellular cross-interest rule for commercial mobile radio service providers. Agency said it seeks comments on whether “competitive or other developments” warrant elimination of or changes to one or both of these requirements.
FCC reaffirmed its Aug. 1999 decisions on TV ownership and attribution rules in decisions late Fri. Among rules reaffirmed were local TV ownership limits, national TV ownership, mass media attribution.
U.S. Supreme Court agreed Mon. to hear appeal of decision by 8th U.S. Appeals Court, St. Louis, that vacated FCC’s Total Element Long-Run Incremental Cost (TELRIC) pricing standard for competitive interconnection (CD July 19 p1). Court said it would hear case (Verizon Communications v. FCC) in 2001-2002 session that begins in Oct., meaning decision probably won’t be handed down until about year from now. Appeals were filed by Verizon, WorldCom, FCC, AT&T, General Communications. FCC Gen. Counsel Christopher Wright said agency was pleased court had granted its petition in this case as well as another involving rates that utilities can charge for pole attachments (see below). In both cases, “Congress decided that utilities owning bottleneck facilities must lease them to competitors at reasonable rates,” Wright said.
In split decision that left broadcast and cable officials scrambling for clarification, FCC voted 3-2 late Fri. against requiring cable operators and DBS providers to carry both analog and digital signals of TV stations right now. Commission hadn’t actually announced decision at our deadline Mon., although action was said to be imminent. Sources said Commission adopted further notice of proposed rulemaking (FNPRM) that would set high bar for broadcasters to prove that they were entitled to must-carry rights for 2 signals during digital transition. Notice apparently seeks comment on whether dual carriage would violate cable’s constitutional rights to free speech, as cable has insisted. But details remained fuzzy at our deadline.