Senate Indian Affairs Committee Chmn. Inouye (D-Hawaii) ordered FCC to file report with panel on Commission’s role in protecting tribal lands from alleged illegal encroachment by wireless tower companies. Joint hearing with Senate Commerce Committee Tues. began with testimony from FCC Consumer & Govt. Affairs Bureau Chief Dane Snowden, who outlined existing and anticipated FCC initiatives to increase Indian Country access to telecom services. Although most members and panelists focused on issue of low penetration rates and measures being taken to address underserved areas, tone of hearing took abrupt turn. William Day, chmn. of United South & Eastern Indian Tribes’ Culture & Heritage Committee, said he questioned legality of FCC’s allowing cell tower companies to satisfy agency’s tribal governmental consultation obligations. This obligation involves determining the impact of telecom infrastructure on tribal lands, including sacred sites. Day lauded Congress for balancing efforts to spur electronic communications deployment on tribal lands and respect for tribal sovereignty: “Unfortunately, your work has been thwarted -- grossly thwarted -- by the Federal Communications Commission and its allies.”
Notable CROSS rulings
Citing U.S. Appeals Court, D.C., decision involving biennial review of broadcast ownership rules, CTIA petitioned FCC late Mon. to eliminate “unnecessary regulations” in policy areas such as local number portability (LNP) and Enhanced 911 (E911). Earlier this year, Commission appealed to D.C. Circuit, seeking rehearing of Fox ruling that overturned FCC’s cable-TV station cross-ownership ban (CD Feb 20 p1). Decision is seen as potentially changing burden of proof FCC must use in determining whether rules should be kept or eliminated under biennial reviews. FCC Chmn. Powell has raised concerns that biennial review standard could evolve under ruling from Commission’s having to prove why it eliminates regulation to also include why rules should be kept (CD Feb 21 p1). CTIA Pres. Tom Wheeler said Tues.: “The Fox decision gave clear direction to the FCC: Prove a regulation is vital and indispensable or get rid of it.” Wheeler said CTIA wanted to “help” FCC meet new standard by “jump-starting the 2002 biennial review process.”
Cross-section of industry could join bidding when FCC issues auction rules for spectrum for multichannel video distribution and data services (CD April 24 p1). Commission opened up satellite spectrum in 12.2-12.7 GHz to terrestrial companies in effort to advance broadband services in rural areas. Final order is expected this week. Companies are anxiously awaiting rules splitting spectrum into hundreds of geographic licensing areas. It’s unclear how many bidders auction will attract. Satellite companies may want to buy licenses to create satellite-terrestrial combination, using terrestrial spectrum to provide local and broadband service.
Group of ground-penetrating radar (GPR) manufacturers plan to challenge ultra-wideband (UWB) order that FCC released late Mon., raising concerns about standards that Commission has acknowledged are very “conservative.” Mitchell Lazarus, attorney for GPR industry coalition, said manufacturers planned to file petition for reconsideration to ask Commission to take 2nd look at some of GPR issues in order. “These are urgent for the industry,” he said. Standards “are much more restrictive than necessary” to guard govt.-protected bands from interference from GPRs, he said. In first readings of 120-page order, industry observers also scrutinized new details such as treatment of govt. UWB operators and waiver extensions. Order spelled out that UWB standards would apply to those devices operating in shared or in non-govt. bands, including those operated by govt. agencies. NTIA Deputy Dir. Michael Gallagher told us that meant that when govt. agencies used off-shelf UWB technology, they must follow same Part 15 rules crafted for UWB as any other use. But for UWB devices specifically designed for govt. use, coordination process between FCC and NTIA will be used in certain cases. “NTIA will follow the law and the law clearly states that NTIA authorizes government systems,” he said.
FCC filed appeal with U.S. Appeals Court, D.C., asking for rehearing or en banc rehearing of court’s decision in Fox TV Stations case involving biennial review of broadcast ownership rules. Commission said court’s finding that regulation should be retained only if it were necessary, “not merely consonant, with the public interest” would require higher standard to retain existing rule than to adopt it in first instance. That “imposes a substantial and continuing burden on the agency that threatens administrative paralysis,” Commission wrote in 34-page filing. However, it said court’s discussion of public interest wasn’t essential to its ultimate decision to remand TV rule and vacate cable ownership rules. Commission said it was apparent court would have reached same decision without “public interest” language, so FCC said it wasn’t seeking rehearing on either of those decisions. Instead, it’s asking court to reconsider only its decision on biennial review. Court had eliminated FCC rule that banned cross-ownership of TV station and cable system in same market. It also remanded to Commission rule that banned TV station owner from reaching more than 35% of TV households in country. In both instances, court determined FCC couldn’t justify its ownership caps and numbers it chose were arbitrary. Telecom Act requires FCC to review existing regulations every 2 years to determine whether they remain necessary. FCC Chmn. Powell said earlier that court’s decision could change burden of proof agency used in determining whether rules should be kept or eliminated in reviews (CD Feb 21 p1). Until now, agency has seen its burden as proving why it wants to eliminate particular regulation, he said. Court’s ruling could change that around and require FCC instead to prove why rules should be kept, he said.
SBC/Southwestern Bell and Verizon assailed Tex. PUC staff’s call for restrictions on special deals to win back local customers who have switched to CLEC service or retain customers that are planning carrier change. State’s 2 largest incumbent telcos said staff’s proposal for 30-day waiting period and restrictions on deals they could offer defecting customers (CD April 16 p7) would deny those customers benefits of free market. Telcos said they, like CLECs, should be allowed to make rational responses to marketplace as long as they didn’t cross line of predatory conduct. Handicapping incumbents through win-back restrictions, they said, is contrary to open telecom service market that policymakers seek to create. Staff said win-back restrictions were in order as long as incumbents retained their overwhelming dominance and planned to propose specific set of rules.
Global Crossing and Sprint filed separate protests at General Accounting Office (GAO) over recent decision by Defense Information Systems Agency (DISA) to award $450 million IP network contract to WorldCom. Contract for Defense Research & Engineering Network (DREN), which is designed to connect Defense Dept. supercomputer users via virtual private network, has been touchstone of controversy since DISA made original award to Global Crossing last summer. DISA rescinded that award after rival bidders AT&T, Qwest, Sprint and WorldCom protested and DISA conducted 2nd round of bidding with what some sources have said were revised criteria in certain areas. Global Crossing said it filed GAO protest after DISA notified company, which filed for Ch. 11 protection in Jan., that it was “ineligible for award” as result of its “current financial situation.” On Fri., Sprint filed separate protest based on what spokesman said were “inconsistencies in the evaluation criteria and errors in the RFP assessment” that DISA used.
AOL Time Warner told FCC that recent decision by U.S. Appeals Court, D.C., in Fox v. FCC required Commission to presume that cable program access rules should sunset in Oct.: “Congress intended for the restrictions on exclusive programming arrangements to sunset absent solid proof of their ‘necessity’ to preserve and protect competition and diversity.” Comments came from AOL TW lawyer Arthur Harding in letter to Commission earlier this month. Harding said D.C. Circuit’s findings “created an affirmative obligation on the Commission to justify retention” of national TV ownership cap and cable-TV broadcast cross-ownership restrictions. Harding said sunset of rules should be prevailing presumption and burden of proof rested with those advocating retention. FCC is weighing whether to allow rules against exclusive programming contracts for vertically integrated cable programmers to expire. Consumers Union and Consumer Federation of America, in ex parte filing following day, touched on issue. They told Media Bureau Chief Kenneth Ferree and other FCC officials that cable industry’s denials of monopsony leverage over programming “always rely on erroneous assertions about competition from satellite at the point of sale.” CU contended satellite wasn’t yet truly competitive with cable. NCTA told FCC that Congress never intended 1992 exclusivity ban to be lifetime guarantee of access and that it was “a relic of a bygone chapter” in cable regulation history.
Despite FCC ruling that cable modem service was interstate information service not subject to open access requirements, issue will remain concern for local franchising authorities (LFAs) in their review of AT&T-Comcast merger transfer applications, according to lawyers for cities. Although it’s unlikely that there would be outright demands for open access requirements as condition for transfer as seen in AT&T-MediaOne transfer process, there will be interest in open access whether or not LFAs have authority, they said. “Open access is still a concern for a lot of local authorities,” attorney Nicholas Miller said. “Whether they have authority is a separate issue.” High on list of other issues likely to figure in AT&T-Comcast transfer are customer service and anticompetitive pricing, lawyers said.
LAS VEGAS -- Time has come for FCC to recognize its existing TV and radio regulations may be inhibiting free flow of information and “the delivery of programming to the public,” Kenneth Ferree, chief of newly created Media Bureau at FCC, said at legal forum lunch here Sun. on eve of NAB convention. He said new rules must be crafted to recognize new forms of media competition and to “promote a diverse and robustly competitive media market.” To accomplish that, he said, Commission must first complete “sweeping review” of current rules that “today rest on foundational assumptions about the market that are, at best, questionable and, at worst, patently invalid and adopted when conditions in media market “were quite different than they are today.”