Instead of looking back after five years of implementation, the National Broadband Plan should be reviewed each year, said NBP author Blair Levin, now of the Brookings Institution, during a panel Wednesday at the institution. "Somebody on an annual basis should be saying, 'How are we doing?'" he said. "I asked the chairman of the FCC to do that, but his PR person vetoed it saying if we did that, people would criticize us, and I just said, 'Well, that's a good thing.' We should be willing to be judged." The discussion comes as the NBP marks its five-year anniversary this year and focused on development of the plan, the changes that have been made over the past five years and what lies ahead for U.S. broadband development. The plan has changed the focus of the FCC permanently, said Austin Schlick, Google director-communications law. "Broadband is now the preeminent service overseen by the FCC. I think that most commissioners would agree." Since moving forward with the plan's spectrum portions, companies such as AT&T have embraced the use of unlicensed spectrum, which has helped to remedy the traffic overload, said Schlick, who was general counsel at the FCC when the NBP was issued. To move forward with the national plan and continue to make universal access a reality, Levin said that states have to want to play a role in the deployment of broadband. Part of that involves the Google Fiber initiative. Every time Google announces it's coming to a new city, the telcos are right behind in announcing gigabit service as well, said Schlick. Often, existing telcos are able to get gigabit service deployed before Google because the company has to start from scratch, he said. "You can see a price difference between markets where we are and markets where we aren't, but this is a good thing," Schlick said. "Companies provide better service at lower prices where we enter the market, and now you're seeing deployment of gigabit networks where Google is not at all. The idea has caught on."

The telecom and cable industry and electric utilities drew different lessons from comments to the FCC on pole attachment rates. Replies largely repeat arguments made in the initial comment round (see 1506050037). Cable and telco interests asked the FCC to take further steps to harmonize at lower levels the pole-attachment rates they must pay, while utilities, which own most of the poles, are happy with the current regime. The record “overwhelmingly demonstrates” that the agency should quickly grant the petition for reconsideration filed by Comptel, NCTA and tw telecom in 2011, NCTA said. “It appears that certain electric utilities are taking advantage of the reclassification of broadband as an excuse to significantly raise pole attachment rates for cable operators and telecommunications carriers,” the cable association said. “Granting the NCTA/COMPTEL Petition is necessary to prevent this result, which is why the petition is supported by a wide range of broadband providers, including cable operators, telecommunications carriers and wireless providers.” Six major power companies, filing together, drew the opposite conclusion. The record shows that pole attachment rates are an insignificant part of operating expenses for most ISPs, said Ameren, American Electric Power, Duke Energy, Oncor, Southern Co. and Tampa Electric. “Broadband providers -- cable companies in particular -- continue to repeat the message that lower pole attachment rates mean greater broadband deployment,” the utilities said. “But there is no evidence to support this message. Continuously repeating it does not make it true.” Four years after the initial pole attachment order, the record “is devoid of any evidence that lower pole attachment rates spur growth, competition, or benefits to consumers in the market for broadband services, and in fact, electric utilities have demonstrated that the opposite is true,” said a coalition of electric utilities, representing additional power companies. It's to be seen whether the order reclassifying broadband as a Communications Act Title II service will have any effect on pole attachment rates, the coalition said: Granting the relief sought would be “contrary to law, and arbitrary and capricious.” Comments were posted in docket 07-245.

Related broadcasters asked the FCC to reject or hold up AT&T's planned buy of DirecTV while the agency processes the group's emergency complaint alleging DirecTV failed to negotiate retransmission consent in good faith. In a filing in docket 14-90, Blackhawk Broadcasting, Bristlecone Broadcasting,Broadcasting Licenses, Eagle Creek Broadcasting of Laredo, Ltd., Mountain Licenses, Northwest Broadcasting and Stainless Broadcasting objected to FCC approval of AT&T/DirecTV and asked that the transaction be held in abeyance while the agency reviews the group's emergency complaint (see 1506120021). "The Complaint provides a compelling real world example of DIRECTV’s failure to negotiate retransmission consent for the carriage of broadcast stations’ signals in good faith as mandated by Congress and the Commission," the broadcast group said. "The Complaint focuses on matters of direct relevance to the Commission’s review of the Applications, including issues of both substance (whether DIRECTV uses its size to secure below-market retransmission consent rates from broadcasters, especially small broadcasters) and process (whether DIRECTV conceals relevant marketplace facts during negotiations). ... FCC approval of the Applicants’ proposed combination would substantially exacerbate, in a manner that contravenes the public interest, the inequities and imbalances which already tilt the retransmission consent playing field too strongly in favor of DIRECTV. DIRECTV is a massive incumbent [multichannel video programming distributor] and should not be permitted to merge with another giant MVPD, AT&T, particularly given the latter’s status and dominant market power as one of the two largest entrenched wireless incumbents in this country." The FCC's nonbinding 180-day "shot clock" for the AT&T/DirecTV review has been stopped on Day 170 since March 13 for unrelated reasons. AT&T and DirecTV representatives didn't respond to our queries.

Parul Desai, a former lawyer for Consumers Union and the Media Access Project, was named the FCC's open Internet ombudsman. Desai is currently an assistant chief in the Consumer and Governmental Affairs (CGA) Bureau. The net neutrality rules, which took effect Friday (see 1506120036), specify that the agency will appoint “an ombudsperson to assist consumers, businesses, and organizations with open Internet complaints and questions by ensuring these parties have effective access to the Commission’s processes that protect their interests,” the FCC said in a news release. The rules also specify the ombudsman must be located inside CGA. The appointment was made by new acting CGA Chief Alison Kutler.

NAB is leaning on the FCC to strengthen the TV white spaces (TVWS) database, after filing an emergency petition in March asking the agency to suspend operation of the database system until “serious flaws” are corrected (see 1503190056). NAB officials, including Bruce Franca, a former deputy chief of the Office of Engineering and Technology, met last week with OET Chief Julius Knapp and others at the FCC to lay out their concerns that problems persist. “Our updated examination of the TVWS database reveals that the database is, once again, riddled with inaccuracies despite the fact that the FCC has made aggressive efforts to clean up the errors,” NAB said. “This confirms that the problem of inaccurate information in the database is one that will not stop -- and will likely accelerate -- unless and until the Commission changes its rules to ensure location data is built into the device and input with limited human involvement.” NAB said it earlier called attention to obviously false names, such as “John Doe” or “Sue Q. Public,” and “Anytown, CA” in the database. “Remarkably, months after NAB focused considerable attention on such errors, someone registered a device in the TVWS database under the name ‘John Doe,’” the association said. “This device was registered as being located in the middle of an empty field, with a contact e-mail address of ‘jd@example.com,’ and a contact telephone number of 232-555-1212.” The FCC deleted the entry, but only after NAB brought it to the agency’s attention, the group said. One device was registered as being in the middle of Lake Michigan, NAB said. “This device remained registered in that location nearly two months after NAB brought this example to the FCC’s attention.” NAB on Thursday filed an ex parte notice on the meeting in docket 14-165. The FCC is aware of the issue and is taking a close look after seeking comment on the NAB petition, a spokesman said. “The commission is committed to ensuring that the white spaces database is correct, and have taken the appropriate steps to do so," the spokesman said. "We continue to work with the spectrum of stakeholders to accomplish that, including NAB, database providers and equipment manufacturers.”

Gigi Sohn, counselor to FCC Chairman Tom Wheeler, commended New York for the state's billion-dollar rural broadband expansion program, during a speech Thursday at the New York State Broadband Summit. The digital divide is "shrinking" but is still an issue for millions of Americans, which is why the "New NY Broadband Program" is "such a big deal," Sohn said according to written remarks. The program, a $500 million investment by the state with a 50 percent provider match, is designed to help pay for broadband to reach the state's "underserved and unserved" populations, its website said. Sohn touted the commission's recently updated broadband standard (see 1501290043) and said it would provide faster and better broadband to customers who will be reached by New York's new broadband program. Sohn also spoke on the FCC ruling to pre-empt municipal broadband laws in North Carolina, which she said prevented community broadband networks from expanding to surrounding areas. North Carolina has filed a lawsuit in the 6th Circuit Court of Appeals against the FCC (see 1505150043). Sohn told the audience that the commission "will not be afraid to act" when state laws directly conflict with federal laws and policy, and "sent a clear message" to Americans by ruling for municipal broadband. She expressed concerns about the lack of competition in the broadband market -- which one analyst said doesn't bode well for Charter's planned buy of Time Warner Cable. Sohn said traditional DSL has "not kept pace with the needs of today's consumers" and is "no longer a real alternative to faster cable and fiber networks," which has resulted in a lack of competition. BTIG's Richard Greenfield said in a blog post that Sohn's comments reinforce his views that the deal "faces a very challenging regulatory path." Sohn said that the FCC and the Department of Justice have worked to "discourage transactions that we believed would reduce competition." Greenfield noted that "new" Charter would be almost as large as Comcast -- which dropped its planned buy of TWC after facing potential regulatory challenges.

The FCC shouldn't approve a declaratory ruling on the Telephone Consumer Protection Act that's anti-business, the U.S. Chamber of Commerce said in a letter Thursday to the agency. The Chamber agrees consumers should “not be barraged with unwanted calls,” but most signs are the commission’s approach isn't balanced, the Chamber said. Industry and FCC officials have said they expect a big fight at the FCC June 18 when commissioners vote on the item (see 1506030043). The Chamber is widely viewed as the nation’s single most powerful trade association. "The Chamber is concerned that in addressing over 20 pending TCPA petitions in one omnibus ruling that appears focused on ‘protecting’ consumers at all costs, the proposed ruling has not taken a balanced approach to the petitions,” the group said. “The goal should be not only to safeguard consumers, but also to protect businesses against abusive litigation filed under a statute that, when passed by Congress in 1991, was not intended to be enforced in such a manner against businesses calling their own customers.” The ruling appears to draw no distinction “between abusive telemarketers (who are the intended target of the TCPA’s autodialer restrictions) and the legitimate businesses who make targeted communications to their customers at customer-provided numbers,” the Chamber said. It's been active in supporting various TCPA petitions seeking to curb lawsuits filed under the act. The U.S. Chamber Institute for Legal Reform also signed off the filing in docket 02-278.

The 8th U.S. Circuit Court of Appeals ordered a lower court to hear a complaint that two unsolicited, prerecorded messages on a home phone line in 2012, promoting the film Last Ounce of Courage, were a violation of the Telephone Consumer Protection Act. The message, recorded by former Arkansas Gov. Mike Huckabee, was really a survey rather than a telemarketing call, said the companies behind the calls. AIC Communications, which was behind the campaign, left two messages for the couple who filed the lawsuit, Ron and Dorit Golan, the Minneapolis-based appeals court said. The decision was written by Judge Diana Murphy. “The Golans did not answer the call, so they heard only the automated message: ‘Liberty. This is a public survey call. We may call back later,’” Murphy wrote, saying this happened twice. “In total, AIC Communications called 4 million residential phone lines, and over 1 million live responses were detected, subjecting those recipients to the majority of the prerecorded script,” the court said. “The remaining recipients who did not answer the call, like the Golans, heard only the brief message recording.” The lower court ruled the Golans hadn't suffered an injury because none of the messages they had received "contained an advertisement, telemarketing message, or telephone solicitation," in violation of the TCPA, the 8th Circuit said. “While the content of the calls controlled whether they were ‘advertisements,’ their purpose controlled whether they were ‘telemarketing,’” the court said. Defendants argue the court should consider only the content of the calls in determining whether they're "telemarketing” calls, the court said. “We refuse to do so. Neither the TCPA nor its implementing regulations ‘require an explicit mention of a good, product, or service’ where the implication of an improper purpose is ‘clear from the context.’" The FCC is slated to take up a declaratory ruling on the TCPA at its June 18 meeting (see 1505270048).

CTIA sued to strike down a Berkeley, California, ordinance that requires retailers to make "unsubstantiated and false statements about the alleged effects of cellphones, which would contradict the findings from independent health and scientific organizations," said the association in a Monday news release. Berkeley's City Council May 26 unanimously adopted an ordinance, Requiring Notice Concerning Radio Frequency Exposure of Cell Phones, No. 7,404-N.S., the filing said. The ordinance says the disclosures and warnings that accompany cellphones generally advise consumers not to wear them against their bodies, but the disclosures and warnings often are buried in fine print and not written in easily understood language, or are accessible only by looking for the information on the device itself, the lawsuit said. The ordinance requires cellphone retailers to give all customers who buy or lease a cellphone a notice that warns of the dangers as follows: "To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation. This potential risk is greater for children. Refer to the instructions in your phone or user manual for information about how to use your phone safely." The FCC has said it's confident the federal government's conservative health and safety standards for cellphones fully protect public health, CTIA said. Leading global health organizations such as the American Cancer Society, National Cancer Institute, World Health Organization and the Food and Drug Administration all concurred that wireless devices are not a public health risk, it said. "Berkeley's Ordinance plainly violates the First Amendment," said CTIA's representing counsel Theodore Olson, of Gibson Dunn. "The ordinance also unlawfully interferes with FCC regulations and contradicts the federal government's determination -- based on extensive scientific evidence -- that cellphones approved for sale in the United States do not pose a public health risk. It is unconstitutional to force cellphone retailers to communicate false, misleading and inflammatory information about their products. It is unfortunate that Berkeley would incite unfounded public anxiety and fear about a product that is so important to its citizens' everyday lives." The association had previously won a fight against San Francisco’s cellphone labeling law (see report in the Sept. 11, 2012, issue). The Berkeley City Council did not have an immediate comment Monday.

Correction: A declaratory ruling allows Pandora to acquire a station even though it couldn't prove it had less than 25 percent foreign ownership, and requires it to seek FCC approval to go over 49 percent foreign ownership (see 1506020035).