John Eggerton

AT&T has weighed in with the Federal Communications Commission with some details on its proposal for a regional approach to the post-spectrum auction repack of TV stations into smaller spectrum quarters to make way for winning bidders in the forward part of the incentive auction, currently underway.

In conversations with staffers and a filing, AT&T, which is among the eligible bidders for spectrum in the forward part of the auction, said the plan was based on the assumption of the FCC's highest clearing target of 126 MHz, though that could be adjusted if the FCC has to scale back to a 114 MHz target if it fails to raise enough money to pay for 126 MHz. AT&T says the key to the plan is reflecting lessons learned in past relocation efforts, including previous auctions and the DTV transition.

USTelecom has been talking up cable as a strong competitor in the business data services (BDS) market.

In a supplemental filing at the Federal Communications Commission on its BDS revamp proposal -- potentially regulating, including rates, new entrants like cable as they have historically regulated incumbent telecoms like those represented by USTelecom -- the telecom trade group said small and medium-sized businesses (with between 5 and 100 employees) using business data service see cable as a competitive alternative. It said its survey found that among data networking customers who did not currently use cable, 70 percent of decisionmakers said they were willing to consider cable, and only 12 percent said they would be unwilling.

The forward portion of the Federal Communications Commission's broadcast incentive auction did not even start until Aug. 16, but smaller wireless companies have already asked the FCC to suspend the bidding for six days in September.

In an informal request, the Rural Wireless Association (RWA) and NTCA: The Rural Broadband Association, asked the FCC's Wireless Telecommunications Bureau for breaks in the auction Sept. 7-9 for the RWA's Rural Wireless Summit and Sept. 26-28 for NTCA's fall conference, at which RWA will be holding its annual meeting as well. They argue that their members have limited personnel to dedicate to a potentially lengthy and unpredictable time period for the auction and that preparation, travel to and from the conferences, and meetings there could make it hard for them to bid in a timely fashion. They pointed out that FCC Commissioners and staffers will be speaking at the conference, and that without the bidding breaks, their smaller associations could lose the opportunity to hear and meet with them. They added that given the FCC's decision not to provide waivers for unforeseen circumstances, there is "no room for error for small and rural carriers bidding in the auction." They said that if the FCC does not want to halt the proceedings, they want it to at least cut the bidding to one round per day.

While a federal court has ruled that Congress did not give the Federal Communications Commission explicit authority to preempt state laws it sees as impeding broadband buildouts, the will of one member of Congress is clear on that point. Reacting to the decision by the US Court of Appeals for the Sixth Circuit reversing the FCC's preemption of Tennessee and North Carolina municipal broadband expansions, Sen. Ed Markey (D-MA), a supporter of FCC preemption, said he was "disappointed with the court's ruling," but suggested the FCC should not treat it as a stop sign on the road to more muni broadband buildouts. "Congress intended to provide the FCC the tools needed to encourage deployment of advanced telecommunications networks," he said, "and when states impose barriers to that very deployment, the FCC should act." The court say it, instead, as an FCC intrusion into state sovereignty that lacked a clear congressional mandate.

TV networks took aim at FilmOn X Aug 4 in oral argument before the Ninth Circuit Court of Appeals, with much of the argument focused on whether the Internet is a communications channel under Congress' definition of a cable system eligible for a compulsory license under the 1976 Copyright Act. The argument was in front of the three-judge panel of Diarmuid O'Scannlain, Consuelo Callahan, and Johnnie Rawlinson. A compulsory license would allow FilmOn X to deliver TV station programming from the major networks at a government-set rate, rather than having to negotiate for it individually. FilmOn X (formerly Aereokiller), which streams video content online, says it is the equivalent of a cable system and should have the same compulsory license.

Fair use groups Public Knowledge and the Electronic Frontier Foundation agree, having filed briefs in support of FilmOn. Fox and the other Big Four TV networks -- with the support of the National Association of Broadcasters and many others -- say it is not entitled to the license. US District Court Judge George Wu sided with FilmOn X, which prompted Fox and the networks to appeal to the Ninth Circuit to overturn that decision. In oral argument, the TV networks' lawyer, Neal Katyal of Hogan Lovells, said the fact that FilmOn X "now claims" that it is a cable system "contradicts the text of the Copyright Act, contradicts its purpose and contradicts what every judge looking at this found," except judge Wu.

Public Knowledge says that just because a broadband customer's information is anonymized does not mean those customers should not have to give permission for it to be shared with third parties. Federal Communications Commission Chairman Tom Wheeler, joined by the other Democrats, has proposed requiring customers to opt in to share their information with third parties, Internet service providers, who don't like the FCC proposal in general, have said that in any event the FCC need not apply its new framework to information that cannot be traced to an individual user. Public Knowledge strongly begs to differ and recently was trying to convince the FCC of its point of view.

In meetings with FCC staffers, according to an ex parte filing, Public Knowledge representatives said that Congress intended that customers should have control of how their information is used, period. Public Knowledge argued that it is clear that Congress's goal was not "merely to avert a negative harm of embarrassment or exposure of information to third parties, but a general desire to ensure that when a subscriber sends a communications transmission, that the transmission is in any way utilized by the carrier for its own gain." If that is the case, the group told the FCC, "then anonymization is no help," and would still "convey a windfall to the carrier at the expense of consumer control of the information in a way that Congress did not intend." ISPs argue that consumers also gain through third-party use of anonymized data since that supports the model of free online content that users have come to expect.

A group of Democratic Sens are urging the Federal Communications Commission to factor in more recent cable business data service (BDS) information into their calculation for revamping its rules on business broadband service.That came in a letter to FCC Chairman Tom Wheeler, according to the Invest in Broadband for America coalition, which was formed to urge the FCC to "get its facts right" before proceeding.

In their letter, the senators, from rural states, said: “As you work toward a final rule, it is especially important for the Commission to use all the available data, including the data submitted earlier this year by the major cable operators, to both measure competitive markets accurately and ensure that the regulations for noncompetitive markets are based on the real cost to provide service, especially in low-density, high cost rural markets.” Signing on to the letter were Sens Jon Tester (D-MT), Maria Cantwell (D-WA), Patty Murray (D-WA), Heidi Heitkamp (D-ND), Michael Bennet (D-CO), Amy Klobuchar (D-MN), Bob Casey (D-PA), Angus King Jr. (I-ME), and Tammy Baldwin (D-WI).

Vice presidential candidate Gov Mike Pence (R-IN) has signaled that the campaign may lighten up on its policy of excluding some news outlets from events due to their past coverage. Donald Trump banned the Washington Post from official campaign events after stories he did not like and has done the same in the past with BuzzFeed, Politico and Univision. But in an interview with conservative syndicated radio talk show host Hugh Hewitt recently, Gov Pence signaled there could be some movement on that front, though he made no promises.

Hewitt said he had an issue with barring some reporters from the Trump campaign. "I’ve argued about this with Mr. Trump," Hewitt told Gov Pence. "It’s not in the American tradition. Will you argue with him to lift that ban, because reporters are part of the game. And we shouldn’t ban, Republicans should not be afraid of reporters. Will you do that?" "We’re all talking about that," responded Gov Pence. "I had a long, I have a long history, as you well know, Hugh, of advocating and defending for a free and independent press." Gov Pence, a former Indiana congressman, pointed out that he had authored legislation creating a national shield law to protect reporters. "So we’re going to have those conversations internally," he said, "and I fully expect in the next 100 days, we’re going to continue to be available to the media, whether they’re fair or unfair, and we’re going to take our case to the American people directly."

The National Association of Broadcasters says it has filled the Federal Communications Commission's quadrennial media ownership review docket with numerous examples of the "challenges" faced by newspapers, including declining ad revenues and even the fate of sidewalk newspaper boxes. In its latest filing at the FCC, NAB said that on that evidence of continuing newspaper challenges, an outright ban on crossownership "becomes increasingly inexplicable." It is trying to convince the FCC to change course and eliminate the newspaper-broadcast crossownership rules. The FCC is proposing a variation of its current failing-station waiver for failing newspapers.

But the ban would remain—and that despite the fact that FCC chairs from both parties have in the past conceded the rule is no longer necessary. Keeping the ban, says NAB, can only hasten the demise of print and can hardly be in the public interest. But the Democratic majority has voted not to eliminate the ban, and that will be the result unless the Republicans can convinced the majority to adjust the item in the next couple of weeks. NAB's latest filing is a story about the New York Times emphasizing digital over its print product. "To the extent that Commission’s rationale for restricting print newspaper ownership relates to viewpoint diversity or independent 'voices,'” NAB told the FCC, "a newspaper that has closed its doors can no longer provide a viewpoint or serve as a 'voice.'"

Commissioner Ajit Pai of the Federal Communications Commission says the FCC should not have issued a notice of apparent liability and proposed fine against AT&T because it waited too long to take that enforcement action. The FCC has proposed fining the company $106,425 and make it repay $63,760 to the Universal Service Fund for allegedly overcharging two Florida schools for phone service under the FCC's E-rate program. Commissioner Pai was not taking issue with the decision, only when the FCC issued it and the legal reasoning behind it.

"We have issued this Notice of Apparent Liability (NAL) too late," he wrote in a published dissent. "The Communications Act imposes a one-year statute of limitations. Like most other statutes of limitations, it runs from when a violation is complete —in this case, when AT&T 'charge[d]' Dixie County and Orange County 'a price above the lowest corresponding price.' According to our records, AT&T last charged Dixie County for the relevant services on July 1, 2014, and Orange County for the relevant services on June 1, 2015. And the last relevant form AT&T filed in conjunction with these charges was October 27, 2014." "So even in the best-case scenario, the statute of limitations ran out 56 days ago, on June 1, 2016," he said.