AT&T CEO Randall Stephenson urged the FCC to approve AT&T's proposed buy of DirecTV "promptly and discussed peering and interconnection issues raised in the proceeding," in a conference call with FCC Chairman Tom Wheeler Thursday, said an ex parte letter posted Monday to docket 14-90. It provided no more details. At a recent meeting with FCC staffers, Cogent, Dish Network, Free Press, Public Knowledge and the New America Foundation’s Open Technology Institute asked the FCC to impose certain conditions -- including on stand-alone broadband, interconnection, data caps and net neutrality -- to address various alleged harms if it decides to approve the deal, said an ex parte filing (see 1505130042). Comptel recently backed Cox Communications' proposal to restrict AT&T/DirecTV from entering into video programming contracts that include unreasonable volume discounts, and the American Cable Association's proposal to prevent the combined company from interfering with rates, terms and conditions that video programmers offer competitors. Comptel also proposed, among other things, that AT&T/DirecTV be (1) required to file quarterly reports on its programming contracts, (2) prohibited from charging terminating access fees or using broadband data caps in a way that could harm online video distributors, and (3) required to comply with Sections 251 and 252 of the Communications Act both during and after its wireline transition to IP. In addition, New Networks Institute and Teletruth petitioned the FCC to delay acting on AT&T/DirecTV and investigate whether AT&T committed perjury in its representations to the agency regarding its broadband deployment. Monday, the FCC informal 180-day shot clock was still halted on Day 170 after the agency decided on March 13 to await a ruling by the U.S. Court of Appeals for the D.C. Circuit regarding video programming confidential information. The court May 8 vacated an FCC order that would have let participants in the commission's AT&T/DirecTV transaction proceeding review confidential programming and retransmission consent contract data, after finding it was “substantively and procedurally flawed,” in CBS et al. v. FCC (see 1505080053).

The Supreme Court granted Campbell-Ewald's cert petition seeking review of a decision by the U.S. Court of Appeals for the 9th Circuit involving the Telephone Consumer Protection Act (TCPA), said the court's May 18 order list. The case is Campbell-Ewald Co. v. Jose Gomez, docket 14-857. The case involves a class action brought under the TCPA against Campbell-Ewald, a national marketing firm, over a text message that Campbell-Ewald sent on behalf of the U.S. Navy to recruit sailors, according to the Campbell-Ewald cert petition. The TCPA provides for statutory damages of $500 per violation for unauthorized messages, the petition said. "But the Act has become an extortionist weapon in the hands of class action attorneys seeking to extract lucrative attorneys’ fees for class-wide settlements. In response, many defendants, including Campbell-Ewald here, have offered plaintiffs complete relief on their individual claims at the outset -- before any class is certified -- agreeing to make plaintiffs whole for any TCPA violations, while sparing all the costs of protracted litigation. In its decision, the Ninth Circuit held that an offer of complete relief fails to moot either the plaintiff’s individual claim or his class claim," said the petition, which said the 9th Circuit ruling contravenes basic Article III principles and conflicts with the decisions of other circuits. The petition presented the following questions: "1. Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim. 2. Whether the answer to the first question is any different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified. 3. Whether the doctrine of derivative sovereign immunity recognized in Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), for government contractors is restricted to claims arising out of property damage caused by public works projects." Campbell-Ewald didn't immediately comment.

The Multicultural Media, Telecom and Internet Council (MMTC) and 35 other groups sent a letter to the FCC calling for “immediate and comprehensive reform” of the Lifeline program to also pay for Internet access, MMTC said Friday in a news release. “A bi-partisan effort is required to modernize this program so that millions of Americans can realize the full potential of the digital broadband age, and obtain this benefit in an efficient and effective program,” the letter said. “Successfully upgrading the 30-year-old Lifeline program will require policymakers to embrace a new approach,” said President Debra Berlyn of Consumer Policy Solutions, one of the groups that signed the letter. “Today, too many people have to choose between broadband and other services, and it’s the time to make access more affordable and accessible,” said Rainbow PUSH Public Policy Institute Executive Director Steven Smith. Industry and FCC officials have predicted that Lifeline changes could headline the FCC’s June 18 open meeting (see 1505010051). FCC Commissioner Mignon Clyburn has been a major advocate of expanding the Lifeline program and has called for launch of a rulemaking before the start of the summer (see 1503130058).

AT&T officials urged the FCC to consider carefully the privacy implications of requiring Lifeline providers to retain records from program participants. The proposal “may make sense on its face because it would enable auditors to confirm that providers gave discounts only to eligible consumers,” AT&T said in a meeting with FCC staff, according to a filing in docket 11-42. But the change also carries risks, it said. “The documents that hundreds of service providers would be required to collect and store for at least a decade or more could include income tax returns, qualification for public benefits, proof of alimony payments, and other highly private information unrelated to the provision of telecommunications service,” AT&T said.

Clarification: As part of its acquisition process as it builds a network, FirstNet will be looking for any potential offerers, not just carriers, to buy excess capacity on the network as part of a solution that can meet its statement of objectives for the network (see 1505130055).

Attorneys and law firms can represent more than one TV licensee in the incentive auction and know their client’s bidding strategies, as long as those lawyers don’t reveal that information to anyone else, said the FCBA Mass Media Practice Committee in a letter to the FCC posted Thursday in docket 12-268. The auction’s anti-collusion rules severely limit broadcast licensees' and their attorneys’ ability to share information about bidding strategies (see 1411280041). If those rules are interpreted to mean each attorney or law firm can represent only one licensee, there won’t be enough attorneys to go around, FCBA said. “BIA/Kelsey estimates that there are 630 separate owners of full-power and Class A television stations in the United States and Puerto Rico,” the letter said. “The potential consequences of a violation of the anti-collusion rule on our clients could be severe.” If the FCC believes the FCBA’s interpretation of the rules is incorrect, it should advise FCBA “promptly,” the letter said.

Alamo Broadband and Full Service Network won't oppose the FCC's motions to transfer their net neutrality legal challenges to the U.S. Court of Appeals for the D.C. Circuit, where the agency and most industry parties want the various challenges heard (see 1505120044). In a court filing, Alamo told the 5th Circuit, where it had mounted its challenge, that it agreed to the transfer. Full Service Network was expected to tell the 3rd Circuit, where it filed, that it won't oppose the transfer, an FSN attorney told us. Both responses were due Thursday. The lack of opposition to the transfers appears to clear the way for the cases to be consolidated at the D.C. Circuit. Meanwhile, a panel of the D.C. Circuit set a May briefing schedule on the telco/cable request that key parts of the FCC's net neutrality order be stayed pending further review. The court gave the FCC and Department of Justice until noon May 22 to file a response, and petitioners until 4 p.m. on May 28 to file a reply. USTelecom, CTIA, NCTA and others asked the court to rule on their stay motion before June 12, the date the order would take effect (see 1505130049). The industry parties have asked the court to stay the order's Title II reclassification of broadband Internet access and its Internet conduct standard.

The Society of Broadcast Engineers (SBE) told the FCC it was never consulted as Oceaneast Associates, an outside consulting firm, prepared a report that prompted an FCC proposal to shut down many of its 28 Enforcement Bureau field offices in a major reorganization. “It is fundamentally unfair to those of us who stand to be profoundly adversely affected by a Commission restructuring proposal to have no input into the process whatsoever,” SBE said in a letter filed at the FCC. “In this case, the contractor that the Commission retained to examine the Enforcement Bureau’s operations and to make recommendations claimed to have contacted a wide variety of stakeholders in the process of developing its proposal. This created the false impression that there had been some input sought. No contact has been made by the contractor, however, with any representative of SBE or of the broadcast engineering community to the present time.” The bureau has defended the change as necessary to modernize its operations (see 1505060064). “The field offices are already operating at well below efficient levels due to the longer term effects of hiring freezes and attrition in the offices due to retirement of experienced staff,” SBE said. “It is SBE’s view that the draconian cuts proposed now will have a substantially adverse effect on compliance in virtually all radio services.” SBE’s volunteer frequency coordinators facilitate sharing of broadcast and cable auxiliary spectrum between broadcasters and government agencies and their job will be “exceptionally difficult if not impossible going forward” if the offices are closed, the group said. SBE asked the FCC to rethink the plan and seek comment from stakeholders, including SBE.

Various telecom and cable groups along with carriers asked the U.S. Court of Appeals for the D.C. Circuit to stay key parts of the FCC net neutrality order, pending further review, or at least expedite consideration of their underlying legal challenges. In a joint motion Wednesday, the American Cable Association, AT&T, CenturyLink, CTIA, NCTA, USTelecom and the Wireless Internet Service Providers Association asked the court to stay the order’s reclassification of broadband Internet access under Communications Act Title II and its Internet conduct standard. They asked the D.C. Circuit to act before June 12, the order’s effective date, and if the court couldn’t do that, they asked for an administrative stay. NCTA and USTelecom noted that they didn't seek a stay halting net neutrality rules that prohibit Internet blocking, throttling and paid prioritization. The petitioners said the FCC was asserting “unprecedented regulatory power over the Internet” in a “sharp about-face” that “arrogated to itself breathtaking authority over the most transformative technology in living memory.” By reclassifying broadband Internet access as a Title II telecom service, the FCC was subjecting broadband to a regime designed for railroads, not social networking and streaming video, they said. Petitioners said they were likely to succeed on the merits, arguing that broadband fit squarely under the 1996 Telecom Act’s “information service” definition that can’t be regulated as common carriage under Title II and that expressly includes a service “that provides access to the Internet.” Noting the 2005 Supreme Court Brand X ruling, the petitioners said, “[B]y classifying Internet access as exclusively a telecommunications service with no information service offering, the FCC has adopted a position that all nine Justices in Brand X rejected. And it has turned Justice [Antonin] Scalia’s analogy on its head. Where Justice Scalia saw the relevant offerings as making pizza (information service) and delivering it (telecommunications service), the FCC pretends the pizzeria offers only delivery, and does not make pizza at all.” The petitioners said Title II was “doubly unlawful” for wireless, given its statutory protections from common-carrier regulation. They said the FCC, “in its headlong rush to implement this regulatory sea change at the President’s urging -- committed a string of glow-in-the-dark APA [Administrative Procedure Act] violations, any one of which would suffice to invalidate the order.” Shifting to alleged harms, the petitioners said “public utility regulation” of the Internet would impose “immense burdens and costs” on petitioners and their members, inviting a “torrent of enforcement proceedings and litigation,” and forcing “providers to undertake costly reviews of countless business practices.” Without a stay, providers face many millions of dollars in unrecoverable losses,” making it in the public interest to block the broad regulatory regime before it takes effect, they said. The agency is confident the D.C. Circuit will deny the stay request, a spokeswoman emailed us. "The Open Internet Order provides clear and defensible rules of the road that will ensure enforceable protections for consumers and innovators online. Petitioners have not demonstrated that they will suffer irreparable injury if the order takes effect, and the public interest clearly favors allowing the Open Internet Order to take effect on schedule.”

AT&T's buy of DirecTV shouldn’t be approved without conditions designed to ameliorate the new entity’s “greater incentive and ability” to “thwart competing OTT services,” said Cogent, Free Press, Dish Network, Public Knowledge and the New America Foundation’s Open Technology Institute in a meeting with the FCC transaction review team, including General Counsel Jon Sallet, according to a joint ex parte filing posted in docket 14-90 Wednesday. If the deal is approved, the commission should require AT&T to offer stand-alone broadband service at least at the FCC-approved benchmark speed, and to offer a stand-alone version of what it offers in bundles, the filing said. AT&T should also have to offer interconnection at “just, reasonable and nondiscriminatory” terms, not exempt any video service from any usage-based pricing scheme, and abide by the 2015 net neutrality order, the filing said.