Challenging DOJ on multiple fronts, the three-judge U.S. Court of Appeals for the D.C. Circuit panel hearing oral argument Thursday on the antitrust challenge to AT&T buying Time Warner showed skepticism. "You have to put in some evidence beyond just an economic theory," Judge Judith Rogers said. A former DOJ antitrust trial lawyer told us that since the decision likely will affirm U.S. District Judge Richard Leon's June decision allowing the merger (see 1806120060), it could come within a month or two.
The FCC's proposed communications market report is drumming up criticisms and fans. The agency on Wednesday also released a draft of appendices that includes data used in developing the report and some broadband speed data from years past. In a docket 18-231 posting Wednesday, New America's Open Technology Institute recapped a meeting with staffers in Commissioner Jessica Rosenworcel's office at which it said until the report fixes methodological flaws and flawed assumptions about competition, commissioners shouldn't adopt it. OTI said Form 477 data "is fundamentally insufficient" for measuring broadband marketplace competition as it overstates the availability of broadband service. The group said the report contains "misguided and vague assumptions" about broadband competition, such as its assertion markets with two providers are competitive. The American Cable Association called the draft "thorough and comprehensive," recommending tweaks including addition of emphasis the cable franchise rulemaking should result in more investment in broadband and other services provided over cable networks. ACA pushed for addition of language making clear vertically integrated MVPDs have incentive and ability to raise costs on rivals like small cable systems, and existing rules can't fix such behavior. Comcast said the report should add Census Bureau and Centers for Disease Control and Prevention data about prevalence of U.S. households relying on smartphones or mobile devices for internet access and of wireless-only phone service. CTIA, recapping meetings with aides to Chairman Ajit Pai and Mike O'Rielly, lauded the report. The draft on the Dec. 12 agenda consolidates a variety of reports into one to fulfill Ray Baum's Act mandate (see 1811210032). In a public notice Wednesday about the report appendices, the agency said the broadband deployment data in the appendices reflect updated data received and processed after the release of the draft report, and that updated data will be used in preparing the final version. According to the broadband data, 94 percent of the U.S. has access to fixed 25 Mbps/3 Mbps speeds, 99.8 percent to mobile LTE 5 Mbps/1 Mbps speeds and 89 percent to mobile LTE 10 Mbps/3 Mbps speeds.
As more nations and commercial operators enter space, hazy international space norms and rules will start to crystalize, said State Department international space lawyer Gabriel Swiney at an International Institute of Space Law symposium Wednesday. The Outer Space Treaty's Article IX "due regard" provision -- requiring a party to consider the impact of its actions and refrain from behavior that doesn’t give due regard to interests of others -- could become the enforcement teeth for those norms, he said.
Chairman Ajit Pai and Commissioner Jessica Rosenworcel clashed over the FCC denying media outlets Freedom of Information Act requests for data about who was commenting in last year's net neutrality proceeding. "What is the Federal Communications Commission hiding?" Rosenworcel asked in a statement Monday accompanying the order. Pai called Rosenworcel's critique "partisan gamesmanship."
With the FCC eyeing what it calls "fundamental changes" to its local cable rate regulation framework, most lawyers with local franchise authority (LFA) experience and locality allies we talked to said this is likely the agency looking for an easy target in its deregulation quest. A minority view believes cord cutting could be raising fears LFAs could soon end up in position to re-regulate cable franchises, and the FCC is tackling those little-employed rules before then. Commissioners launched a Further NPRM at October's meeting that would revise the agency's cable rate rules regime for basic tier regulation by LFAs (see 1810230037).
Whether the 3.5 GHz band paradigm becomes the new norm or a specialty tool for particular occasions was debated by FCC Commissioners Mike O'Rielly and Jessica Rosenworcel at a WiFiForward coalition event Thursday. "It's almost radical," eschewing the binary approach of licensed vs. unlicensed spectrum and going instead with the hierarchy of incumbents, secondary licenses and opportunistic use, Rosenworcel said. She hopes that approach will be used in other bands globally.
The FCC's focus is on granting the legions of C-band earth station registrations received in its six-month-plus application window. What kind of time frame that might entail is a big question. Satellite and broadcast interests urge any 3.7-4.2 GHz earth station operators who didn't register to do so. July's NPRM on terrestrial use in the C-band (see 1807120037) included an order directing incumbent fixed satellite service earth station operators to certify the accuracy of existing International Bureau filing system (IBFS) information and to provide more information. It's not clear when that PN might be issued, said satellite lawyer Michelle McClure of Fletcher Heald.
From harsher criminal penalties for some streaming piracy to more engagement with U.S. trade partners, media groups, tech companies and others had suggestions for the Office of the U.S. Intellectual Property Enforcement Coordinator in docket 2018-19863 as IPEC puts together its next three-year joint strategic plan. Google said IPEC should seek feedback from rights holders on hurdles to suing rogue sites in foreign courts and a modernization of the Copyright Office by putting registration and recordation systems online. Calling streaming piracy via plug-and-play devices an "insidious" threat, NCTA said the U.S. needs to engage trading partners more on adopting and enforcing copyright protections, and IPEC needs to prioritize trying to persuade trading partners to shut illicit streaming services. It said the FCC should use RF equipment authorization powers to deter makers and importers of piracy devices from selling in the U.S. by bringing "stiff" monetary penalties. BSA sought engagement with trade partners. The Copyright Alliance and MPAA urged continued public access to Whois data (see here and here). The alliance said IPEC should back harmonization of criminal penalties for copyright infringement, so infringement of a public performance right -- typically a misdemeanor -- is treated the same as infringement of the reproduction and distribution rights, which can result in felony charges. It said the Trusted Notifier program between MPAA and some domain name registries bore fruit in fighting online infringement, and IPEC should encourage more domain registries and registrars to employ similar arrangements. The Independent Film & TV Alliance and RIAA and National Music Publishers' Association (see here and here) said Congress should classify large-scale streaming piracy as a felony. The U.S.-Mexico-Canada Agreement doesn't include a fair use standard, and IPEC should encourage U.S. trade negotiators to push for one, R Street Institute said, urging roundtable discussions on such issues as how the U.S. can encourage other nations to adopt fair use models. Public Knowledge said IPEC needs to be mindful of how enforcement schemes might affect non-infringing users. PK said enforcement should focus "on targeted bad actors." The Internet Association said the U.S. needs to defend copyright law flexibility that includes fair use and Digital Millennium Copyright Act safe harbors both domestically and internationally. Push back against curtailing intermediary liability protections, IA asked. Tech groups told the U.S. Trade Representative that bolstering IP rights should be a high priority in negotiating a new trade agreement with Japan (see 1811260011).
C-Band Alliance, Intelsat, SES and Auctionomics dismissed concerns about a "windfall" from freeing up part of the C-band for 5G as misplaced, meeting chiefs of the FCC International and Wireless bureaus and Office of Engineering and Technology, and with Media Bureau and Office of Strategic Planning, recounted a docket 17-183 posting Tuesday. In the related docket 18-122, others petitioned for more time for replies on the NPRM on opening the C-band to terrestrial use. The C-band interests said with mid-band spectrum so vital to 5G, the alliance met with small and rural mobile operators and their associations about their needs. Intelsat and SES said they determined they could cut the proposed guard band from 50 MHz to 20 MHz through newly designed and optimized band-pass filters, validated by over-the-air tests with live satellite signals in the presence of adjacent 5G transmissions. The C-band interests said the sooner there's visibility on an order, the sooner a commitment of "very significant funding" to satellite manufacturers for additional satellites that will need to be built and launched for that transition. The C-band interests said SES and Intelsat -- with either one or the other out of the room -- discussed methods and tools to be used to repack customers, and plans to add more satellites and ensure satellite reception through filters and mitigation techniques. In the request for extension for replies, the Dynamic Spectrum Alliance, American Cable Association, Competitive Carriers Association, Public Interest Spectrum Coalition and Wireless ISP Association said two more weeks, to Dec. 11, would help promote a more complete record. They said the 30 days for replies "was already very tight," given the Thanksgiving holiday, and issues raised are particularly complex. The alliance, in a coming reply, said delay "will slow the U.S. in the race to 5G" and the NPRM came out nearly four months ago: That's plenty of time to "evaluate the issues and anticipate opposing arguments." It said the petition coming days before the Nov. 27 reply deadline instead of closer to the Oct. 29 comment deadline "screams of gamesmanship and strains credulity."
That the fight over license size in the 3.5 GHz band is over didn't stop a skirmish at an FCBA CLE that ran through Monday evening. Verizon Assistant Vice President-Federal Regulatory Patrick Welsh said it's disingenuous for General Electric and other massive companies to imply they lack resources to compete with national wireless carriers in a 3.5 GHz auction.