John Eggerton

There are now a pair of holds on a Senate vote on the nomination of Jessica Rosenworcel, and they are from members of her own party. Any senator can block a nomination by issuing such a hold. A spokesperson for the Senate Commerce Committee Republican majority identified the holds as being placed by Sens Ed Markey (D-MA) and Ron Wyden (D-OR). “Bipartisan technology legislation passed by the Commerce Committee should not face further delay from the Senate Minority Leader over a nominee Senate Democrats are now blocking," they said. Minority Leader Harry Reid (D-NV) had vowed that a mobile broadband spectrum bill would not get a vote while Commissioner Rosenworcel's renomination vote was not scheduled for a vote in the full Senate. Looks now like Minority Leader Reid may have to talk to his own party about that. Other communications bills in the Senate Commerce Committee have also backed up behind that Minority Leader Reid pledge, apparently.

A spokesperson for Sen Markey's office confirmed the holds and explained them this way: "Sen. Markey wants a commissioner who is unequivocally committed to pro-consumer and pro-competition policies. Recent actions from Commissioner Rosenworcel on the proposed set-top box rule and other items have called that commitment into question." Commissioner Rosenworcel was widely believed to have had ongoing reservations about the set-top box proposal's impact on copyright and contracts, reservations not shared by FCC Chairman Tom Wheeler.

Industry players were reacting to Federal Communications Commission Chairman Tom Wheeler's decision to pull a vote on the business data services (BDS) revamp proposal opposed by cable Internet service providers and others, including one who said it tarnished the commission. The item had been scheduled for a vote Nov. 17, but was pulled after Republicans in Congress asked that Chairman Wheeler step down from any controversial votes given the transition to a new Administration.

“We are pleased with the FCC’s decision not to enact new regulations for business data services and other proceedings today,” said CenturyLink senior VP John Jones. “We believe the communications industry will continue to be competitive, innovative and market-driven without the burden of regulation. We look forward to working collaboratively with the new administration and the FCC to take our nation’s telecommunications and technology infrastructure to the next level of security, reliability and speed.”

USTelecom, whose members joined the National Cable & Telecommunications Association in opposing the proposal, was equally pleased. “We appreciate Chairman Wheeler’s decision to abide by requests from Congress not to move forward with substantial policymaking proceedings that could have a significant impact on the economy and the public," said USTelecom President Walter McCormick. "We look forward to working with the new administration and FCC on future broadband initiatives that will lead to greater infrastructure investments that better serve American consumers and businesses.”

The Federal Communications Commission has told the US Court of Appeals to reject a court challenge to its decision not to protect low-power TV (LPTV) stations from being displaced in the post-broadcast incentive auction repack of TV stations. The petition for the court to review that decision was filed by Free Access & Broadcast (FAB) Telemedia.

In its filing, the FCC said the court did not even have jurisdiction over the petition to review that decision because "the petition raises issues that were resolved in prior FCC orders and were not reopened in the orders on review," which were "measures to help displaced LPTV stations find new channels" rather than a revisit of the decision not to protect them. The FCC says it is settled that the statute creating the auction and repack did not mandate protecting LPTVs from displacement and the FCC, in its discretion, chose not to do so. The FCC pointed out that in an earlier case, the same court had concluded the commission "reasonably declined to protect LPTV stations from displacement in the repacking process because doing so would ‘severely limit… recovery of spectrum to carry out the forward auction, thereby frustrating the purposes of the Spectrum Act.’” The FCC argues that FAB is trying to relitigate settled decisions through to succeeding decisions—on channel sharing and when wireless companies could commence operations on reclaimed TV channels.

During all the sturm und drang over Donald Trump's stunning presidential upset and calls from Republicans for the Federal Communications Commission Chairman to ramp down his agenda, one thing they were not looking to preempt or delay was the broadcast spectrum incentive auction. While the political world was shifting on its axis, the reverse auction has been humming along and Nov 16 reached what is expected to be roughly the midpoint, round 26 of an expected 52. There could be a couple more rounds depending on how the bidding goes, but round 27 is also Nov 16, so the FCC is at least at the midpoint of stage three of reverse bidding, where the FCC reduces the price of spectrum until no broadcaster is willing to go any lower to give it up.

To recap, so far, broadcasters' stage one price for exiting 126 MHz was $86.4 billion, but bidders in the forward auction—wireless companies and others bidding on that reclaimed spectrum—only offered $22.4 billion. The FCC intentionally set the opening broadcaster offers high and constructed the auction for multiple rounds to let the marketplace, TV station sellers and wireless carriers agree on an ultimate price point. So far, the first two stages of both the reverse and forward portions of the auction have seen the two sides far apart in price, and the FCC has now twice reduced the spectrum clearing target given that forward auction bidders have not met the asking price.

Commissioner Jessica Rosenworcel of the Federal Communications Commission, who will have to leave the commission at the beginning of January if the Senate does not vote to reconfirm her, has gotten the endorsement of the Parents Television Council. PTC offered up a quartet of key FCC-related issues as the commission prepares for new Republican leadership, one of which was that the lame duck Senate should immediately confirm her to a second term.

Commissioner Rosenworcel was renominated by President Barack Obama and unanimously recommended by the Senate Commerce Committee, but her Senate vote has been held hostage in the larger Republican vs. Democrat fight over nominations in general and what Senate Minority Leader Harry Reid (D-NV) has said was the other side's reneging on a promise to confirm Commissioner Rosenworcel if the Democrats approved Republican commissioner Michael O'Rielly's nomination.

Sen Al Franken (D-MN), a big backer of Hillary Clinton and critic of President-elect Donald Trump, says that broadband infrastructure buildouts may be one area where he and President-elect Trump can agree. Sen Franken has big differences over issues like climate change and healthcare with populist Republican President-elect Trump, but when asked by CNN's Jake Tapper where he might find agreement, Sen Franken was quick to say "infrastructure." And he said that went beyond roads and bridges to broadband buildouts. "This is something I think we should be doing," he said, adding: "I think I may be more in line with the new President than my Republican colleagues in the Senate and the House."

The Federal Communications Commission has fired a warning shot at AT&T's free data service for mobile customers, saying the combination of DirecTV Now and AT&T Mobility sponsored data plans "appears to present significant anti-competitive effects."

On the same day that Donald Trump was elected, signaling a likely far more deregulatory FCC, Jon Wilkins, chief of the Wireless Telecommunications Bureau, wrote to AT&T senior VP Bob Quinn to say the bureau thinks their sponsored data mobile broadband plan combined with zero rating DirecTV video apps for AT&T Mobility subscribers may obstruct competition. He invited AT&T to explain why the bureau was not right to be concerned. AT&T suggested its plans were pro-competitive because it makes it easier for subscribers to cut the cords to their cable plans. AT&T also said it was ready to allow any other content provider to offer sponsored content in the same "free data" model.

The National Association of Broadcasters is taking the Federal Communications Commission to court once again over its quadrennial media ownership regulatory review, the association has confirmed. “Broadcasters want to compete in the digital age and continue being a trusted source for local news and information, but FCC rules need to reflect 2016 and not the 1960s," said NAB spokesman Dennis Wharton. "It defies belief that the FCC allows AT&T/DirecTV and Charter/Time Warner mergers while barring two Topeka TV stations from combining, or a radio station from buying a newspaper.”

NAB signaled even before FCC Chairman Tom Wheeler circulated the proposal that it was likely headed to court, saying that retaining the newspaper-crossownership ban, as the FCC did yet again, was arbitrary and capricious violation of the Administrative Procedures Act. It has since gotten direction from the board to file suit. It has long said that it makes no sense to limit local TV station ownership in an era with video competition from cable and satellite and now the Web that fills those markets with competition voices. NAB is filing its appeal in the U.S. Court of Appeals for the D.C. Circuit, the principal court of jurisdiction for FCC decisions. Prometheus Radio, which is also challenging the rules, filed in the Third Circuit.

Prometheus Radio Project has challenged parts of the Federal Communications Commission's Aug 25 quadrennial ownership review, continuing a legal battle that has been going on for well over a decade. In a filing with the U.S. Court of Appeals for the Third Circuit, Prometheus and the Media Mobilizing Project said the FCC once again has failed to satisfy earlier directives from that court by reinstating an earlier definition of eligible entity the court had vacated and remanded "while citing no additional evidence to show that this definition will promote ownership opportunities [for] minorities and women."

Prometheus et al. said that the FCC had acknowledged it had failed to come up with a definition based on one used by the Small Business Administration despite being instructed to do so by the court. Prometheus also challenges the FCC's decision to modify some broadcast ownership rules "so as to permit increased concentration," as well as its "failure" to treat shared services agreements—as it now does most joint sales agreements—as attributable ownership interests subject to local market duopoly rules.

The Schools, Health and Libraries Broadband (SHLB) Coalition has launched a campaign trying to get the Federal Communications Commission to reverse course on its new approach to business data services (BDS), saying with that approach "our kids will suffer from buffer brains rather than developing into the next-generation of entrepreneurs and leaders."

FCC Chairman Tom Wheeler was initially going to impose rate regulations on both the ethernet BDS service used by new competitive entrants like cable ISPs and the traditional TDM (time-division multiplexing)-based service provided by the incumbent telecommunication companies, but he subsequently switched to a case-by-case, market-by-market, complaint-driven approach to ethernet service price regulations. SHLB Coalition wants the FCC to regulate both TDM and ethernet below 50 Mbps in an "equivalent manner," saying not to do so excludes schools and libraries from the BDS revamp. The campaign is called #NoBufferBrains, and it wants the FCC to make "emergency improvements" to the proposal. "Emergency" because Chairman Wheeler has scheduled a vote on the latest BDS proposal for the Nov 17 public meeting after originally circulating it for a vote outside a public meeting.