AT&T, CenturyLink, Frontier and Verizon asked the FCC to modify special-access rulemaking protective orders to allow parties to use confidential industry data from that proceeding in the Wireline Bureau’s recently opened tariff investigation into ILEC contract terms and conditions. Meanwhile, Fred Campbell, executive director of the Center for Boundless Innovation in Technology, suggested FCC Chairman Tom Wheeler had opened the bureau tariff investigation to gain more control over the special-access process than in the commission-level rulemaking. But an FCC spokesman said the commission would have to vote on the bureau investigation to act. In opening the tariff probe, the bureau used the data "to draw preliminary conclusions related to this investigation,” the four large incumbent telcos said in a motion posted Monday in docket 05-25. But they said the protective order terms prevent parties from using the rulemaking data in the tariff investigation despite the data likely including "relevant information about the state of competition" and the relationships to ILEC contract terms. “These data are therefore necessary to the ILECs’ defense in the tariff investigation, and the Commission should accordingly modify the protective orders,” the four incumbent telcos said. ILEC critics Incompas and Sprint didn't comment. In a Forbes commentary, Campbell said, “The FCC claims ‘a more systematic inquiry’ into telephone companies’ pricing plans is necessary to determine their reasonableness. But the FCC’s framework for this tariff investigation is so sloppy and unsystematic that the outcome appears to have been predetermined.” Instead of examining all the issues in one proceeding, Campbell said, the use of a tariff investigation gives Wheeler “the power to exercise unilateral control over the FCC’s approach to regulating special access” while “obscuring the agency’s discriminatory approach to such regulation.” Campbell said the rulemaking will require a commission majority to adopt an order, but the bureau “has delegated authority to issue orders involving tariffs, and the chairman controls” the bureau. Wheeler's authority to act unilaterally on telco tariffs "gives him leverage to control the outcome of the broader rulemaking,” Campbell said. The FCC spokesman said the bureau won't decide the investigation and pointed us to the first paragraph of the order, which said the bureau "intends to gather sufficient information to enable the full Commission to decide whether and how to resolve these allegations." In response, Campbell said intent was not the same as a binding order. "If they’re absolutely going to stand behind a commission-level vote 100 percent, OK, but until there’s something unequivocal to that effect, I don’t think it changes my analysis at all,” he told us.

Full Service Network (FSN) proposed its own format for net neutrality oral argument Dec. 4 at the U.S. Court of Appeals for the D.C. Circuit (USTelecom v. FCC 15-1063). In their proposal Friday, FSN and allies said they were unable to reach agreement with other industry petitioners (USTelecom and allies) and government respondents (the Department of Justice and FCC), which had submitted a joint proposal for the format (see 1510230066). “The other petitioners and Respondents have an obvious common interest in minimizing the prominence and discussion of the substantive legal arguments in [our] brief,” FSN said. The joint proposal “minimizes FSN’s time,” giving it only 10 minutes, “and excludes it from discussion of a key issue,” said FSN, referring to the legality of the FCC’s reclassification of broadband access under Title II of the Communications Act (previously it was under Title I). FSN said its attorney, Earl Comstock of Eckert Seamans, should be given 20 minutes: 10 minutes, as part of the main reclassification arguments, to make its case that the statute dictated Title II for broadband and 10 minutes to argue the FCC should not have given broadband ISPs forbearance deregulation from much of Title II. “Both FSN and USTelecom argue that the plain language of the Act determines the classification, but with different end results,” FSN said (USTelecom argues the statute precluded Title II reclassification). The DOJ and FCC argue the statute is ambiguous and allows the commission to reasonably reclassify broadband under Title II. The joint proposal’s approach “would be inefficient and result in the Court having to hear the [reclassification] issue twice,” FSN said, while “hearing all three parties’ positions at the same time will facilitate the Court’s understanding.” FSN's 120-minute proposal would allocate 35 minutes to USTelecom, 20 minutes to FSN and five minutes combined to Alamo Broadband and Daniel Berninger (to raise their free-speech challenge), with the DOJ/FCC receiving 60 minutes to respond. That time breakdown “roughly” tracks the court-ordered breakdown of word limits in briefs, FSN said. Joining FSN in the litigation are Sage Telecommunications, Telscape Communications and Truconnect Mobile. One of the three judges hearing the case will decide on the format, according to the D.C. Circuit’s procedural handbook, with the composition of the panel usually revealed 30 days before oral argument (in this case, that would be Nov. 4).

The FCC plans to promote broadband adoption efforts targeting four groups -- seniors, veterans, persons with disabilities and students -- said Gigi Sohn, counselor to FCC Chairman Tom Wheeler. The commission’s Consumer and Governmental Affairs Bureau will “explore and highlight best practices” helping these groups gain broadband access, she said Thursday in a speech to the Partnership for Progress on the Digital Divide Conference in Scottsdale, Arizona. “One of the goals of this effort is to develop a roadmap for these communities that can be used by advocates and the philanthropies and companies that support their work,” she said, according to her posted remarks. Sohn said achieving universal broadband adoption is like running a marathon: The final stage before the finish line is the hardest part. In thinking about the broadband challenge, she cited a “50/50” concept, with two categories of people who have “pretty much reached universal adoption -- people under the age of 50 and people earning over $50,000.” That shows “that for those populations that face no significant barriers, market forces can be sufficient to get us to our goal of universal adoption,” she said. But the flip side is market forces won’t be enough to achieve universal broadband adoption because some people face significant barriers, she said. “Getting where we are now was relatively easy. Getting from here to universal adoption is the hard part,” she said. “Think of our adoption challenge as a marathon. They say that the race really starts at mile 20, and those last 6 miles are a bear. Considering we have about 75 percent home adoption, that math is about right.” She said the FCC is attempting to close various broadband gaps based on income, education, location and disabilities through USF programs -- the high-cost Connect America Fund, E-Rate school and library discounts, and Lifeline low-income support -- and certain accessibility and adoption efforts, including the new best-practices initiative. But the digital divide is "less of an infrastructure challenge and more of a civil rights and human rights challenge," she said.

FCC General Counsel Jonathan Sallet will take the lead on behalf of the agency defending a key part of its net neutrality order in the Dec. 4 oral argument, most of the parties to the case told the U.S. Court of Appeals for the D.C. Circuit in a filing Friday. The FCC issued the 3-2 February net neutrality order that has since faced several industry challenges as part of USTelecom v. FCC, No. 15-1063. At stake in the order is the FCC’s reclassification of broadband as a Communications Act Title II service, which attracted significant opposition from industry and Capitol Hill Republicans. Peter Keisler, an attorney with Sidley Austin, will present the argument on behalf of USTelecom, the filing said. Sallet and Keisler will address the arguments in the Title II portion of the case. Other FCC and industry attorneys will address other arguments raised in the case. Filings from litigants were due at the end of last week (see 1509080059). Sallet’s legal history includes partnerships at three law firms -- O’Melveny & Myers, Jenner & Block and Miller Cassidy -- in addition to a policy position at MCI and a Supreme Court clerkship for Justice Lewis Powell. “They’ve picked the best lawyer in the government uniform to argue the most important case in the history of the FCC,” former FCC Chairman Reed Hundt told us.

FCC Chairman Tom Wheeler paid tribute Thursday to his three legal advisers, all of whom are leaving the agency -- Maria Kirby, Renee Gregory and Daniel Alvarez. “You should not read anything into that,” Wheeler said. He said in the news conference after the meeting that he plans to stay on as chairman through the remainder of the Obama administration.

Google, NCTA and a handful of Wi-Fi companies are urging the FCC to find a middle ground on LTE-unlicensed. The FCC could let the market take its course or impose command and control regulation, they said in a letter posted Thursday in docket 15-105. “Between these two extremes is a middle-ground path of establishing straightforward rules of device eligibility, encouraging industry to develop appropriate norms of conduct and mechanisms for managing the use of the commons, and then largely staying out of the way as self-regulation and innovation take hold.” This middle ground is “precisely the course the Commission took with respect to the unlicensed spectrum commons under Part 15 of its rules,” they said. Boingo Wireless, Broadcom, Hewlett-Packard and Ruckus Wireless also signed the filing.

FCC Commissioner Ajit Pai criticized Chairman Tom Wheeler Thursday for setting up meetings “on Wall Street” to clarify the FCC’s position toward transactions. Pai was referring to alleged business outreach efforts by the commission. The FCC has denied that the business outreach was ever planned or occurred (see 1510020049). The agency’s record toward business has created uncertainty, Pai said, but that uncertainty shouldn’t be addressed though private meetings, he said in a news conference following Wheeler's, which itself followed the commissioner meeting. Commission policy should be “made in public” he said. The FCC should establish a “clear regulatory framework” for deciding which transactions will be approved and "let the chips fall where they may,” Pai said.

The FCC adopted a video relay service (VRS) Further NPRM on circulation, a commission spokesman told us Thursday. A draft Further NPRM and interim order had been scheduled for action at the commission's Thursday meeting, but the item was removed from the agenda after being adopted, an FCC public notice said. The spokesman said the Further NPRM was adopted but not the draft order. The draft Further NPRM asked whether the commission should partially modify its four-year schedule of rate reductions and adopt possible enhancements to VRS "functional equivalence," while the draft order would have partially modified VRS rates, pending action in the further rulemaking, according to the meeting agenda released Oct. 15 (see 1510160026). The item “responds to a petition related to freezing VRS rates and seeks comment on policy changes to improve VRS features," another FCC spokesman told us last week.

Carriers are playing games on their level of interest in 600 MHz spectrum in the buildup to the TV incentive auction, FCC Chairman Tom Wheeler said at a news conference after Thursday’s meeting. After the commission’s Aug. 6 meeting, Wheeler said pointedly it was up to carriers whether they want to play in the auction (see 1508060028). Sprint since said it wouldn't bid and Verizon this week downplayed its need for additional low-band spectrum (see 1510200058). Wheeler was president of CTIA and has a long history in spectrum auctions. “I think we’ll have a very successful auction,” he said, chuckling, noting the auction starts in just 157 days. “I think what we’re seeing right now is the marketing has begun, everyone is positioning a little bit,” he said. “This is all pre-auction shenanigans that one can expect [to] happen in any kind of a marketplace.” Wheeler said the key goal of the auction is getting more spectrum in play for wireless broadband, not bringing in huge revenue. He was asked about broadcaster concerns that the voluntary incentive auction isn’t really voluntary. “There are no armed FCC agents holding guns to heads,” he said. “You are free to decide whether or not you want to participate.”

The FCC said it will provide weekly data on consumer complaints about unwanted calls from telemarketers. The agency said the promise of a weekly release builds on its declaratory ruling clarifying its interpretation of the Telephone Consumers Protection Act approved at the June 18 meeting (see 1506180046). In June, the FCC “gave the green light for do-not-disturb technology, clarifying that there are no legal barriers to service providers offering robocall-blocking technologies to consumers,” the agency said in a Wednesday news release. “While such services are available today as apps on some smartphones and on VoIP phone systems, work is still underway for many carriers and third-party providers to offer consumers these tools on traditional landline networks.” The initial data dump lists basic information on 9,803 complaints made to the FCC about unwanted calls. “This data will help improve do-not-disturb technologies” so providers can offer “the best service for consumers,” said Alison Kutler, chief of the Consumer and Governmental Affairs Bureau.