Public Knowledge and other consumer advocates filed in opposition to an April 27 request by Daniel Berninger, founder of the Voice Communications Exchange Committee, that the FCC stay its order imposing net neutrality rules and reclassifying broadband Internet access as a Title II telecom service under the Communications Act. A stay of the order would deny consumers open Internet guarantees and cause uncertainty for consumers and companies, the groups said. Berninger failed to show that his petition met any of the four factors considered in stay requests: likelihood of succeeding on the merits, suffering irreparable harm, harm to other parties, and public-interest considerations. “Mr. Berninger argues that protecting consumer access to the Open Internet should wait while telephone and cable companies fight these protections in the courts," said Harold Feld, Public Knowledge senior vice president, in a release that has a link to the opposition filing. "Mr. Berninger thinks it would be better for himself and his business if broadband companies could prioritize his services over those of rivals, and claims to suffer irreparable harm from his inability to negotiate such business arrangements. ... It might benefit Mr. Berninger and a few privileged others for telephone and cable companies to pick winners and losers on the Internet. But a universe that allows AT&T or Comcast to pick Berninger as the winner is a world where all the rest of us lose.” AT&T, CenturyLink, CTIA, USTelecom and the Wireless ISP Association filed Friday for a partial stay (see 1505010059). The American Cable Association and the NCTA also filed for a stay of the order pending judicial review. Telecom industry officials have said they doubt the FCC will stay its order, though the petitioners can also seek a court stay.

Netflix pressed concerns to the FCC about AT&T's planned buy of DirecTV and the deal's potential market fallout. The combined company would have "increased incentive and ability to harm online video distributors (OVDs) and other edge-based Internet content" that it sees as competitive threats to its broadband and video services, Netflix said in a Monday ex parte filing about a meeting Thursday. Netflix said the FCC should reject the deal "as currently proposed," without making recommendations for conditions. Many believe the deal is likely to be approved by the FCC and the Department of Justice (see 1504270065), and AT&T said it expects the transaction to be completed this quarter (see 1504220069). With the abandonment of Comcast/Time Warner Cable, Netflix said AT&T would become the largest multichannel video programming distributor and, after making further investments, the largest ISP. "These two dynamics create a powerful incentive for AT&T to protect its investment in DirecTV's bundled programming by using its ability to harm OVDs to prevent or delay cord-cutting and cord-shaving," Netflix said. Netflix said AT&T has shown it can damage OVDs by "leveraging its control over interconnection to degrade its own customers' access to Netflix's service." AT&T also seems interested in using data caps and usage-based pricing methods, which it could apply "discriminatorily" to favor its own services, Netflix said. If AT&T can exploit interconnection or data caps to slow OVD development and the shift away from traditional video/broadband bundles, it could preserve its market advantage, Netflix said. Netflix disputed AT&T's April 21 filing that said the telco lacks incentives to harm competitors. AT&T's planned $48 billion purchase of a DirecTV satellite-TV business that profits by selling programming bundles "will result in a powerful incentive to protect that model from a shift by consumers toward on-demand, over-the-top content," Netflix said. AT&T declined to comment. Its April 21 filing blamed network congestion on Netflix and its backbone provider Cogent, not on AT&T capacity limits. "Netflix insisted on funneling its traffic to AT&T through only a handful of peers, including Cogent, because, as Netflix has stated, these few providers offered the best bids in terms of price and service," AT&T said. "As one network analyst has explained, 'Netflix chose to create, and use paths that [it] knew were congested, simply because they were cheaper than using paths that were less congested.' This strategy apparently overwhelmed Netflix’s chosen low price providers, causing congestion and impacting service quality for its customers." The American Cable Association and the Writers Guild of America, West also expressed various concerns about, and recommended conditions for, AT&T/DirecTV (here and here).

CTIA and USTelecom filed to intervene in support of the FCC order that aims to shift the contract for local number portability administration from Neustar to Telcordia. The associations said if Neustar is successful in its court challenge to the FCC order, it would harm their members "by eliminating 'significant cost savings over the existing contract'" with Neustar that the FCC determined will result from giving the LNP administrator contract to Telcordia. The groups cited comments by FCC Chairman Tom Wheeler. The joint motion was filed April 27 in the U.S. Court of Appeals for the D.C. Circuit.

The FCC OK'd Pandora's request for a declaratory ruling, letting it be up to 49.99 percent foreign owned. The company had also sought to buy KXMZ(FM), Box Elder, South Dakota, from Connoisseur Media, and the American Society of Composers, Authors and Publishers (ASCAP) sought to block that deal and opposed Pandora's petition. "We take no action at this time on the Assignment Application and related pleadings," said an order Monday approved by commissioners, with Commissioner Ajit Pai concurring. He called parts of the process "absurd," and noted that Pandora's request to buy KXMZ has been pending for two years. Pandora's "difficulties" to "prove that foreign entities do not beneficially own or vote more than 25 percent of its shares" are "far from unique," wrote Commissioner Mike O'Rielly. Connoisseur and Pandora lobbied the FCC last week to OK the deal (see 1505040031). Buying KXMZ would qualify Pandora for the same Radio Music License Committee license "under the same terms as our competitors," noted Dave Grimaldi, the company's director of public affairs. "This move makes sense to us beyond the licensing parity alone. Pandora excels in personalizing music discovery, and terrestrial radio is experienced in integrating with a local community." ASCAP had no immediate comment.

Wireless broadband in the U.S. is the best in the world, but the nation still lags in offering wired connections at blazing speeds, Gigi Sohn, counsel to FCC Chairman Tom Wheeler, said in a speech Monday to the “Moving Forward Toward a Gigabit State” conference in New Haven, Connecticut. International rankings “consistently score the U.S. outside the top 10 in broadband speeds” and “Americans aren’t content with being outside the top 10 in anything that matters,” she said in prepared remarks posted by the FCC. According to Akamai, the average fixed broadband connection in America is about 12 Mbps, Sohn said. “That’s fine if you live alone, and all you’re doing online is minimal browsing each night while streaming a movie on Netflix. But broadband can enable so much more.” The FCC wants to see speeds of 50 Mbps, then 100 Mbps and “and eventually even 1 Gigabit per second,” she said. “When you achieve those speeds … you remove bandwidth as a constraint on innovation.” About 10 million Americans can’t get broadband at any speed, Sohn said. “The costs of digital exclusion are staggering,” she said. “I hear anecdotal evidence all the time about how young people in towns that are offline feel compelled to move elsewhere for fear that there’s no future for them in a town without broadband.” Sohn said projects like Connecticut’s CT Gig Project are critical, especially in areas where commercial operators aren’t stepping up. “When commercial providers don’t step up to serve a community’s needs, we should embrace the great American tradition of citizens stepping up to take action collectively,” she said. “Across America, communities have concluded that existing private sector broadband offerings are not meeting their needs and the only solution is to become directly involved in broadband deployment.”

The six U.S. video relay service providers jointly asked the FCC to halt a proposed cut in VRS rates. The six said the FCC should take steps “to preserve competition and ensure the existence of the three newest and smallest VRS providers until the Commission establishes sustainable rate rules in its ongoing ratemaking proceeding.” ASL Services, CAAG, Convo, CSDVRS, Purple and Sorenson signed the filing, posted Friday in docket 03-123. VRS providers face huge financial pressures, they said. “As explained in the Joint Proposal and follow-up responses to the staff’s questions, providers have endured dramatic rate cuts in 2010 followed by four successive cuts in the last two years. Immediate rate stability is crucial in order to prevent further erosion of functional equivalence, to preserve providers’ ability to innovate, and to preserve reasonable working conditions and compensation for VRS interpreters.” The VRS providers proposed changes in the program aimed at stabilizing rates in March. The steps they proposed then were: requiring providers “to meet a faster service-level requirement so that 80 percent of calls must be answered within 45 seconds”; maintaining compensation rates at the levels in effect during the first half of 2015; doing a trial during which providers could offer “skills-based routing in order to collect data about the cost and feasibility of offering that service”; and encouraging providers to offer deaf interpreters. They expressed a willingness to “work with the Commission’s Disability Advisory Committee to resolve any interoperability issues remaining after the providers’ recent joint efforts to ensure complete interoperability.” Rate stability is a prerequisite to other reforms proposed in the March filing, the VRS providers said last week, “including the more stringent speed-of-answer requirement, the trial of skills-based routing, and increased use of deaf interpreters.”

If the merger of AT&T and DirecTV is approved it would mean expanded fiber to at least 2 million more people through AT&T's Fiber to the Premises GigaPower service, the companies said during a meeting with the FCC Wednesday, according to an ex parte filing Thursday in docket 14-90. The transaction also would let AT&T deploy new, fixed wireless local loop broadband services to about 13 million rural customer locations, the company said. During the meeting, the companies asked the commission to approve the transaction, the filing said. Representing AT&T at the meeting were Wayne Watts, senior executive vice president; James Cicconi, senior executive vice president-external legislative affairs; David McAtee, senior associate general counsel; and Robert Quinn, senior vice president-federal regulatory and chief privacy officer. Representing DirecTV at the meeting were Larry Hunter, executive vice president; Andrew Reinsdorf, senior vice president-government affairs; and William Ryan, vice president. Wednesday, the Alliance for Community Media filed an ex parte notice with the FCC on the transaction that said the merger would result in reduced competition and possible competition in the multichannel video distribution market throughout AT&T's landline footprint. Absent the merger, AT&T would be forced to invest more in building out its U-verse network, which would create more competition in the market, ACM said. The organization also said the claimed public benefits of the transaction are illusory -- neither AT&T nor DirecTV has explained how the merger is essential to achieving those benefits. The transaction also would disserve the public interest by harming public, educational and governmental channels and localism, ACM said.

FCC Commissioner Mike O’Rielly raised concerns about the FCC’s advisory committees, the role they play and the extent to which they are dominated by the FCC chairman. The Friday blog post is one of several O’Rielly has released suggesting process reform. One big problem is that the chairman’s office has “absolute and complete power over every aspect of their existence,” O'Rielly said. Individual commissioners are often invited to say a few words, but play no role otherwise, he said. “The membership, selection of the committee chairs, timing of any reports and/or recommendations, and all other aspects of their operations are determined solely by the [FCC] Chairman," he said. "If all of the decision-making is in the hands of the [FCC] Chairman, how can a committee’s outcomes ever be considered bipartisan, or better-yet, nonpartisan and independent?” O’Rielly asked whether participation in the committees is really voluntary. “Of course, members must go through the application process, but failure to be involved means that the committee may proceed down a path that is against a party’s interest,” he said. He also questioned how the committees are managed and the “heavy hand” sometimes used by FCC staff. “Since each advisory committee already has a Commission staff designee, why would bureau chiefs or other Commission staff need to be involved at all?” he asked. “It seems inappropriate and potentially caustic to the proper functioning of the committee, and the ultimate realization of solid recommendations, if non-designated staff question the committee’s decisions, influence the agenda, pose questions of members, judge the possible recommendations, or potentially declare specific outcomes.”

The FCC asked two federal appeals courts Thursday to transfer legal challenges to the agency’s net neutrality rules to the U.S. Court of Appeals for the D.C. Circuit. The appeals were filed by Texas wireless ISP Alamo Broadband in the 5th Circuit and Pennsylvania CLEC Full Service Network in the 3rd Circuit. The Judicial Panel on Multidistrict Litigation already selected the D.C. Circuit as the court to hear the initial two appeals of the order, the FCC noted. The agency told the courts that because petitioners seek review of the same FCC order that is being challenged in the cases before the D.C. Circuit, and because the Judicial Panel designated the D.C. Circuit as the court where the agency record is to be filed, they are “statutorily required” to move the cases.

The FCC will consider an order and Further NPRM at its May 21 meeting that would extend the iCanConnect-National Deaf-Blind Equipment Distribution Program and propose to make it permanent, said a notice released by the agency Thursday. The program provides up to $10 million annually from the Interstate Telecommunications Relay Service Fund to support programs that distribute communications equipment to low-income people who are deaf-blind. The program is to expire in June unless extended, an FCC spokesman said Thursday. The order extends the program for an additional year, or until it's made permanent. It provides braille devices, computers, mobile devices, phones and signalers, according to a fact sheet on the program. ICanConnect grew out of the 21st Century Communications and Video Accessibility Act. Also on the agenda is a report and order and further NPRM that would extend accessibility rules for emergency alerts to “second screens,” including tablets, smartphones and laptops. Under the order, tonal emergency alerts for the blind sent out by broadcasters would be available for those watching TV on a second screen so they can hear what sighted people can see, a spokesman said. The NPRM looks at implementation issues including how remote controls can allow people to switch easily between screens.