Broadcasters face “trying times” at the FCC, said Commissioner Ajit Pai Wednesday in remarks prepared for delivery to the National Religious Broadcasters' President's Council Wednesday. “Is this all a test by the FCC to see if broadcasters have the patience of Job?” he asked. Pai opposes proposals to prioritize unlicensed white space devices over TV stations in the TV band, he said. “When it comes to broadcast television spectrum, broadcasters should have priority. But sadly, the Commission no longer appears to believe this.” Though the incentive auction means some low-power TV broadcasters will be displaced, the FCC shouldn’t exacerbate the problem, Pai said. “If low-power stations are not allowed to continue operating in the UHF band, they will go out of business. That’s just not the case for unlicensed devices.” The FCC should open up spectrum in the 5 GHz band, Pai said. He also spoke about the AM radio revitalization draft order (see 1510070065)

The FTC and George Mason University School of Law will host a public departure ceremony for former FTC Commissioner Josh Wright Friday in the Robert Levy Atrium of Hazel Hall on George Mason’s Arlington campus, 9:30-11 a.m., a George Mason news release said. FTC Chairwoman Edith Ramirez, George Mason University Dean Henry Butler, Freshfields Bruckhaus antitrust attorney Jan Rybnicek and former FTC Competition Bureau Assistant Director Jeff Perry, now a partner at Weil Gotshal, will give formal remarks, it said. Wright, who became an FTC commissioner in 2013 and resigned in August, was the “driving force behind new guidelines for the Unfair Methods of Competition provisions of Section 5 of the FTC Act,” the release said. Wright’s “call for evidence-based decisions has been a welcome reminder of that crucial element of sound policy,” said former FTC Chairman Timothy Muris, also a George Mason University Foundation Professor of Law.

The FCC clarified what communications are and aren't barred around the incentive auction. The clarification came in an 18-page public notice Tuesday evening. There are three exceptions in which communications on bids or bidding strategies are OK, with some caveats, the PN said: if licensees share a common controlling interest or some personnel; between a broadcaster and a forward auction applicant that have such overlapping interests; and between broadcasters that are part of channel-sharing agreements. Also OK, the commission said: "Communicating directly or indirectly that a licensee has or has not filed an application to participate in the reverse auction does not constitute communication regarding an applicant’s bids or bidding strategies and therefore does not violate the reverse auction rule prohibiting certain communications." And "routine" business communications that don't convey bids or bidding strategies are allowed, as are discussions with some third parties.

Global Tel*Link sought further FCC sanctions on the Alabama Public Service Commission and David Baker, APSC Utilities Service Division director, for “recidivistic conduct” in allegedly not following FCC orders in the inmate calling service (ICS) rulemaking. In a filing posted Friday in docket 12-375 responding to a Sept. 21 Wireline Bureau order (see 1509220007), Global Tel*Link accused Baker of violating the order’s prohibition and APSC restrictions on his participation in the ICS proceeding by emailing a response to a bureau official email noting the order (see 1509280034). “Mr. Baker seems incapable of following the rules promulgated by the Commission,” said GTL, which also said Baker violated the FCC’s 2013 protective order when he posted confidential information from GTL and other ICS providers on the agency’s public electronic comment filing system, an error Baker acknowledged and for which he apologized. In its recent response to the order, the APSC said Baker reasonably didn’t expect his email to be placed in the record and said it imposed new procedures to oversee filings of confidential information (see 1509300023). But citing FCC rules, GTL said Baker’s email constituted an official “filing” that he was barred from making by the FCC’s Sept. 21 order. “While Mr. Baker no doubt will portray himself as a well-meaning hapless victim of a simple oversight or misunderstanding on his part, his disregard for the Commission’s Order and rules is very difficult to understand,” GTL said. “The APSC also should be held responsible” for failing to enforce the FCC’s Sept. 21 order and its own procedures, said the company. GTL urged the FCC to impose sanctions on Baker and the APSC. It didn’t make a specific recommendation but said the agency could suspend or disbar counsel or consultants from practicing before the FCC, impose fines and issue cease-and-desist orders. In its response, Pay-Tel Communications, which was among the companies whose confidential data was briefly made public, said it believed the restrictions the FCC imposed on the APSC and Baker were sufficient. Pay-Tel called the breach limited in time, scope and impact, and said Baker seemed to have acted in good faith and had made valuable contributions to the proceeding. Pay-Tel also said further sanctions could “chill" future state regulatory participation in FCC proceedings. Any further response from the APSC and Baker is due Tuesday, according to the Sept. 21 bureau order.

USTelecom and others argued the FCC was precluded from reclassifying broadband as a Title II telecom service (under the Communications Act) by the 1996 Telecom Act, in a reply brief to the U.S. Court for Appeals for the D.C. Circuit. The D.C. Circuit is reviewing their petition challenging the agency net neutrality order (USTelecom v. FCC, No. 15-1063). "At its core, the Order rests on the claim that Internet access is no different from voice telephone service and that the FCC therefore has authority to subject them both to Title II’s common-carriage requirements," said USTelecom, joined by the American Cable Association, AT&T, CenturyLink, CTIA, NCTA and the Wireless Internet Service Providers Association. "But Internet access, unlike voice telephony, necessarily 'offers' a 'comprehensive capability for manipulating information' -- namely, data stored on distant computers -- which is a classic information service exempt from common carriage under a long-settled regulatory regime," they said. "In 1996, Congress codified that regulatory regime and thereby precluded the FCC from regulating such services under Title II," their brief said, adding: "The FCC defends its upheaval of the regime with little more than a plea for deference, based on an aggressive misreading of Brand X," the Supreme Court's ruling deferring to the FCC's previous finding that cable broadband/modem service is a Title I information service. "But Brand X involved classification of a transmission link to Internet access functions, whereas the Order reclassifies Internet access service itself, which everyone in Brand X agreed is an information service. And, to avoid reclassifying many other Internet players as common carriers, the FCC has done something else the statute forbids: it classifies the same computer-processing and storage functions in opposite ways -- as 'telecommunications services' or 'information services' -- depending solely on whether they are provided by petitioners or third parties," the brief said.

In the event of a government shutdown, the Office of the Federal Register (OFR) would be required to publish documents "directly related to the performance of governmental functions necessary to address imminent threats" to public safety or the protection of property, it said in Thursday's Federal Register. Because it would be "impracticable" for the OFR to determine which documents would qualify for publishing during a shutdown, it would place the responsibility on the agencies submitting documents, OFR said.

Competition and innovation in the form of the new peer-to-peer business models that have been created as part of the sharing economy must be allowed to flourish, but targeted regulatory measures may be needed to ensure appropriate consumer protections, said FTC Chairwoman Edith Ramirez at a Fordham University international antitrust event in New York City Friday. “The sharing economy appears to be responsive to consumer demand, to increase competition, and to promote a more efficient allocation of resources -- providing consumers with more options and, often, lower prices,” Ramirez said, according to prepared remarks. The FTC has “generally cautioned state and local governments not to impose legacy regulations on new business models simply because they happen to fall outside existing regulatory schemes,” she said, noting that the agency studied the sharing economy in a recent workshop (see 1506090046). “The threshold question for policymakers examining new peer-to-peer businesses should be whether there is a public policy justification for regulating the service at all, either through an expansion of existing regulatory schemes or through entirely new regulatory schemes,” she said. “If there is no public policy rationale justifying regulation, policymakers should allow competition to proceed unfettered.” Regulatory boards and other policymakers may have legitimate consumer protection and other public interest objectives, but they must consider the potential competitive effects such regulations may have, she said. For example, the FTC recommended that regulations directed at ride-sharing services focus “primarily on ensuring qualified drivers, safe and clean vehicles, sufficient liability insurance, transparency of fare information, protecting privacy and consumer data, and compliance with other applicable laws,” noted Ramirez.

The FCC denied it's undertaking any outreach to the business community -- a supposed move that had generated criticism from one of its own commissioners. "There is no tour," an agency spokeswoman said Friday in response to a report by Mergermarket Group's Policy and Regulatory Report (PaRR) that the FCC is about to undertake meetings in New York City to give more insight into and assurances about its transactions review process. The agency said no such tour ever was scheduled. General Counsel Jonathan Sallet was in New York City Friday to speak at a Fordham University. Sallet had been invited in August to speak at the event and initially accepted a separate invitation to speak at a separate breakfast with investors as he already was going to be in the city, but subsequently canceled, the FCC said. According to the PaRR, the outreach in part comes after concerns raised by a recent Sallet speech on the agency's merger review process (see 1509290024). Commissioner Ajit Pai in a statement Friday criticized that reported business community outreach by the agency: "The FCC’s problem right now isn’t messaging. What’s needed are better policies -- policies that make economic sense, that spur greater investment in and deployment of broadband infrastructure, and that give entrepreneurs the certainty they need to innovate and succeed." Pai also said "policy should be set straight in public by the five FCC Commissioners nominated by the President and confirmed by the Senate, not behind closed doors on Wall Street for the benefit of a selected group of insiders." Asked about the FCC denials Pai Chief of Staff Matthew Berry said "Our office is pleased that the tour was canceled once the FCC’s hand was caught in the cookie jar. Based on everything we’ve heard, the original article ... was accurate and the FCC is now dissembling to avoid embarrassment." Pai, along with Chairman Tom Wheeler and Commissioner Mignon Clyburn, have largely stopped doing general meetings with financial analysts and their clients -- a notable difference from the FCC under Julius Genachowski, when Wall Street outreach was more commonplace (see 1502120010).

An FCC draft order would approve a cable/telco pole-attachment petition aimed at preventing power companies from charging telecom providers higher rates than they charge cable companies, agency and industry officials told us Friday. After the commission approved an order in 2011 aimed at driving traditionally higher telecom pole-attachment rates down to cable rate levels, NCTA along with Comptel and Level 3 filed a petition for reconsideration asking the agency to close a cost-allocation “loophole” that power companies could use to keep the telecom rates higher. “We are optimistic that the order will promote broadband investment by closing the loophole that enables pole owners to charge higher rates for telecommunications attachments," an NCTA spokesman emailed us. The issue took on more urgency after the FCC in February reclassified broadband as a telecom service under Title II of the Communications Act because some believe power companies could use the reclassification to charge cable broadband providers the higher telecom rates. FCC Chairman Tom Wheeler suggested the agency would take corrective action and he recently circulated a draft order that agency and industry officials told us would approve the NCTA request. Granting NCTA’s petition “would promote broadband investment and competition by ensuring the rate for telecommunications attachments is comparable to the rate for cable attachments in all circumstances, just as the Commission intended” in its 2011 order, said an NCTA filing posted Thursday in docket 07-245. Power companies oppose the petition. A power industry representative had no comment.

The Washington, D.C., City Council’s proposal to heavily regulate Airbnb is an “atrocious public policy” that will stifle innovation and prevent necessary competition in the hospitality industry, said CEA President Gary Shapiro in a news release Thursday. "Airbnb helps D.C. visitors find affordable accommodations, while allowing D.C. citizens to earn supplemental income while sharing their love of this city,” Shapiro said. “Legislating higher prices and fewer choices” will harm D.C.’s reputation as a tech-friendly, pro-business city, he said.