Competitive ISPs and VoIP providers spoke with one voice, urging the FCC to deny a BellSouth petition seeking forbearance from application of Computer Inquiry and Title II common carrier requirements to the transport component of its broadband services. They said the market for underlying broadband transmission services wasn’t competitive, contrary to the BellSouth claims. They said ILECs retained significant market power in the wholesale telecom services broadband market, and competitive carriers had to acquire such services from them.
Notable CROSS rulings
The acting Solicitor Gen., on behalf of the FCC, asked for another extension of time to decide whether to file for a writ of certiorari with the U.S. Supreme Court on the media ownership rules. The FCC asked for an extension to Jan. 31; otherwise the petition is due Jan. 3. The Supreme Court will likely grant the petition because its docket is already full, said Media Access Project Pres. Andrew Schwartzman. The court also routinely grants govt. extensions. At issue is a 3rd U.S. Appeals Court, Philadelphia, media ownership ruling against the Commission’s liberalized rules. In June, the appeals court remanded the FCC’s major rules for cross- ownership of newspapers and broadcasters and the concentration of broadcast ownership in local markets. Schwartzman told the FCC in an ex parte filing that it was unlikely that the Supreme court would reverse the appeals court. He told the FCC it would be better to proceed with executing the appeals court’s directives because broadcasters’ ability to conduct transactions remain frozen.
The FCC shouldn’t take its case on media ownership rules to the Supreme Court, said a top aide to FCC Comr. Copps. The remarks by Copps’ senior legal adviser Jordan Goldstein came Thurs. at a media ownership forum in St. Paul, Minn. Copps couldn’t attend because he was recovering from a back injury. This month, the Supreme Court granted the FCC a 30-day extension to file for certiorari on the 3rd U.S. Appeals Court, Philadelphia, media ownership ruling against the Commission’s liberalized rules (CD Dec 2 p12), but the FCC hasn’t decided whether to file. Copps believes revision of the rules, which the Court and Congress have declared flawed, shouldn’t be delayed for further litigation. In June, the appeals court remanded the FCC’s major rules for cross- ownership of newspapers and broadcasters and the concentration of broadcast ownership in local markets. “Now is the time to come up with media concentration protections that will expand the voices and choices that support our marketplace of ideas and sustain American democracy and creativity,” Copps said in a statement Goldstein delivered to the forum. Some have suggested the FCC should eliminate or loosen the media concentration rules one by one, rather than look at their collective effect on the media, he said. That approach would cause “gigantic changes” to the media landscape while minimizing public scrutiny of the overall impact, Copps said. Comr. Adelstein, who attended the forum, said more than 500 people turned out to voice their concerns about media consolidation. “The public is extremely educated on the impact media ownership will have,” Adelstein told us.
Universal service reform is one issue Congress should address when rewriting the Telecom Act next year, a cross- industry panel agreed Thurs. at a forum sponsored by the National Journal. But speakers couldn’t agree on exactly what the reform should be. They also disagreed on which other issues should go to Congress and which ones left to the FCC.
The Supreme Court granted the FCC, NAB and other media organization requests for a 30-day extension to file a petition for a writ of certiorari of the 3rd U.S. Appeals Court, Philadelphia, media ownership ruling. But the FCC hasn’t decided whether to file, said Assoc. Gen. Counsel Daniel Armstrong. In June, the appeals court remanded the FCC’s major rules for cross-ownership of newspapers and broadcasters and the concentration of broadcast ownership in local markets (CD June 25 p1).
The FCC would like to call for comments on the industry proposals for intercarrier compensation (ICC) reform by year-end, although that may be an overly ambitious goal, FCC Wireline Bureau Chief Jeffrey Carlisle said Wed. at an ALTS conference. With so much going on this month -- such as final action on the TRO remand order -- the date may slip into early 2005, Carlisle said. The same goes for the mid-2005 target for voting on the ICC item, he said. “It would be nice if we could complete the process by the middle of next year, but it would be a tremendous undertaking” because the Commission also will working on major proceedings such as IP-enabled services and universal service contribution methodology, he said.
Tribune Co. told the Supreme Court it should reexamine the continuing validity of the scarcity doctrine in evaluating the ban on newspaper-broadcast cross- ownership. Tribune asked for a 30-day extension of the deadline to file a petition for a writ of certiorari challenging the 3rd U.S. Appeals Court, Philadelphia, media ownership ruling. Tribune argued the ban on newspaper-broadcast cross-ownership doesn’t reflect the current media environment. Even if the scarcity doctrine is still valid, the First and Fifth Amendments prohibit the FCC from singling out some media for special restrictions on speech that don’t apply to other media, it said. The 3rd Circuit also “compounded its errors” by staying the effectiveness of the FCC’s 2003 rules, which kept in place the 1975 ban on all newspaper-broadcast combinations. “This action was grossly overbroad and inconsistent with other circuits’ decisions on the equitable factors that must inform the entering of a judicial stay,” Tribune said. In Sept., the 3rd Circuit denied Tribune’s petition to lift the stay -- specifically, to allow combinations in the largest markets, those with 9 or more TV stations. The Tribune said leaving in place for the indefinite future the 1975 rule -- which the FCC and 3rd Circuit agreed was inconsistent with Congress’ intent to deregulate the media market -- is “simply intolerable.” Tribune said it also needed an extension to file because of “pressing matters” in other courts. Mon. the FCC and several media organizations also asked the court for an extension of time to file (CD Nov 23 p10).
The acting solicitor gen., on behalf of the FCC and U.S., Mon. filed a request to the Supreme Court for a 30- day extension to file a petition for a writ of certiorari of the 3rd U.S. Appeals Court, Philadelphia, media ownership ruling. NAB also planned Mon. to file for an extension of time to review the issues, said Marsha McBride, NAB’s exec. vp-law & regulatory policy. Fox, NBC Universal and Viacom filed a joint petition for extension, a source said. Unless extended, the deadline for filing a petition is Dec. 2. The requests are routinely granted, so any certiorari petitions would be due Jan. 3, 2005, the source said. In June, the appeals court remanded the FCC’s major rules for cross-ownership of newspapers and broadcasters and the concentration of broadcast ownership in local markets (CD June 25 p1).
The prospects for FCC Comr. Adelstein to be renominated to the Commission appeared bright Thurs. after his hearing before the Senate Commerce Committee. Senators from both parties praised his attention to rural issues and Committee Chmn. McCain (R-Ariz.) told reporters afterwards that he expected Adelstein’s nomination to pass.
The FBI and DEA met with the FCC last week to ask the Commission to take into account CALEA concerns as it wraps up an air-to-ground (ATG) rule for communications made on commercial airliners, including broadband. Meanwhile, an ATG order is on circulation on the 8th floor and could be finalized before the Commission’s Dec. 15 agenda meeting, we learned. Chmn. Powell could schedule a vote at the meeting if Commissioners otherwise don’t finish voting on the order.