Daniel Berninger, who unsuccessfully challenged the FCC net neutrality order on First Amendment grounds (see 1610130014), said Chairman Ajit Pai is the right FCC leader to make a change. The founder of VCXC said the FCC should never have reclassified broadband as a common-carrier service under Title II of the Communications Act. “The 83-year history of Title II is riddled with powerful interests using its regulatory powers to slow down and kill the innovations of their competitors," said the VoIP expert in statement Tuesday. "Every day it is left in place hurts small businesses, blocks new consumer-friendly innovations and reduces the private investments necessary.”

Wireless interests are rallying behind, and satellite interests and allies opposing, the Fixed Wireless Communications Coalition (FWCC) petition for changes in satellite earth station licensing rules, as was expected (see 1612270034), with a series of filings posted Tuesday and Wednesday in RM-11778. Google Fiber said that since full-band, full-arc licensing results in inefficient use of the bands shared by fixed satellite service and fixed service, the FCC should start a rulemaking on the FWCC proposal and on broader rules changes to allow more use of the spectrum. It also brushed off Satellite Industry Association arguments, saying low rejection rates for FS coordination requests "may reflect nothing more than that those operators adjust their plans to avoid time-consuming and expensive coordination engagements." The National Spectrum Management Association said satellite operators should be licensed for as much spectrum as they need, but only the spectrum they actually need, letting other services access the rest. CBS, Disney, Scripps Network Interactive, 21st Century Fox, Time Warner and Viacom said in opposing the FWCC petition that they worried about negative effects on C-band satellite spectrum and its use in distributing to multichannel video programming distributors' headends and to over-the-top distributors. PBS said the FWCC proposal would mean, absent a waiver procedure, every earth station adjustment to a different transponder or satellite would require a license modification procedure that could take weeks or months. NAB said there's no evidence full-band, full-arc licensing is a problem, and plenty of evidence it has substantial public benefit. The association said the FWCC proposal is unrealistic because the waiver process "would be cumbersome and wholly ineffective to deal with situations that regularly occur with broadcasters' use of FSS earth stations and satellites." SES said the FWCC and its allies never acknowledge that the two extended Ku-band segments listed in the petition have FSS use limits aimed squarely at preserving FS spectrum access.

Chief Judge Merrick Garland was named to the panel reviewing NARUC's challenge to an FCC VoIP numbering order, which is set for oral argument Feb. 8 at the U.S. Court of Appeals for the D.C. Circuit. Garland, whose 2016 nomination to the Supreme Court died after the presidential election victory of Republican Donald Trump, will be joined by Judges Karen LeCraft Henderson and Judith Rogers, said a brief order of the court in NARUC v. FCC, No. 15-1497. All three are Democratic appointees. NARUC argued the FCC couldn't give interconnected VoIP providers direct rights to phone numbering resources without classifying them as telecom carriers providing telecom service under Title II of the Communications Act (see 1604050013). The FCC and DOJ defended the commission's 2015 order as a "common-sense approach to telephone numbering" that eliminated needless telecom carrier middlemen, and they cited procedural and statutory arguments (see 1605200002). Intervenor Vonage also defended the order (see 1605260058).

One of the executive orders signed by President Donald Trump this week seeks to expedite environmental reviews and approvals for high-priority infrastructure projects, including those involving telecom. “Federal infrastructure decisions should be accomplished with maximum efficiency and effectiveness, while also respecting property rights and protecting public safety and the environment,” the order text said Tuesday. “It is the policy of the executive branch to streamline and expedite, in a manner consistent with law, environmental reviews and approvals for all infrastructure projects, especially projects that are a high priority for the Nation, such as improving the U.S. electric grid and telecommunications systems.” The White House Council on Environmental Quality chairman must decide within 30 days of a request from a governor or executive department or agency chief whether a project is “high priority,” it said. “All agencies shall give highest priority to completing such reviews and approvals by the established deadlines using all necessary and appropriate means.”

The 2nd U.S. Circuit Court of Appeals said it won't review a three-judge panel decision in July that upheld Microsoft's refusal to comply with a government search warrant to hand over a customer's emails stored in a server in Ireland (see 1607140071 and 1610140037). The full court voted 4-4 with three judges recused, and without a majority favoring an en banc review, DOJ was denied a rehearing. At issue is the 1986 Stored Communications Act (SCA) that the panel said protects a user's privacy interests. That panel ruled Congress didn't intend the SCA's warrant provisions to apply extraterritorially. Concurring in the Tuesday order denying the review, Judge Susan Carney -- who also wrote the opinion in the three-judge decision in July -- said the court understands the "gravity" of law enforcement concerns that it "will less easily be able to access electronic data that a magistrate judge in the United States has determined is probably connected to criminal activity" as a result of the earlier decision. But she wrote "that in the absence of any evidence that Congress intended the SCA to reach electronic data stored abroad by a service provider (and relating potentially to a foreign citizen), the effect of the government's demand here impermissibly fell beyond U.S. borders and therefore the Microsoft warrant should be quashed." Judges Jose Cabranes, Christopher Droney, Dennis Jacobs and Reena Raggi dissented, each issuing an opinion. While everyone, including the government, agrees the SCA lacks extraterritorial reach, Jacobs said the information sought can be delivered in the U.S., which is "easily accessible" at a computer terminal here. Cabranes said the "negative consequences" of the majority opinion is far reaching because it burdens legitimate law enforcement efforts, creates a "roadmap" to facilitate criminal activity and hinders programs to protect national security. Microsoft President and Chief Legal Officer Brad Smith, who lauded the decision, said in an emailed statement that Congress needs "to modernize the law both to keep people safe and ensure that governments everywhere respect each other’s borders. This decision puts the focus where it belongs, on Congress passing a law for the future rather than litigation about an outdated statute from the past.” A DOJ spokesman emailed that the department is "reviewing the decision and its multiple dissenting opinions and considering our options.”

Former FCC Chairman Reed Hundt said new Chairman Ajit Pai is well positioned to take command. Hundt was chairman under President Bill Clinton. Like some recent chairmen, including Julius Genachowski and Kevin Martin, Pai logged time as an FCC staffer before becoming a commissioner. “Ajit is really in a good position because he knows the agency and he knows the topics and he knows his own mind,” Hundt said in a Tuesday interview. Responses to the Pai appointment continued to roll in Tuesday after Pai got the job Monday (see 1701230058). Some of the comments raised red flags. “Throughout his tenure at the FCC, Commissioner Pai has been a steadfast opponent of net neutrality and consumer privacy rules, and a rubber stamp for mega-mergers,” said Sarah Morris, director-open internet policy for New America's Open Technology Institute. “His anti-regulatory agenda is a gift to telecom lobbyists and a major threat to consumers, small businesses, and the American economy.” Demand Progress saw Pai as a threat. This “is a guy who said after Trump was elected that the neutrality's ‘days are numbered’ and that he would ‘fire up the weed whacker’ to gut protections like the open internet rule,” the group said in a fundraising email Tuesday. “Pai wants to undo the free and open internet rules we won in 2015. But Demand Progress, together with you and our allies, saved the internet before, and we can do it again.” The Association of National Advertisers, which fought FCC ISP privacy rules, said in a blog post it welcomed the appointment. “Few FCC Chairmen have come to the job better prepared, as Pai had served before being an FCC Commissioner as an FCC Deputy General Counsel, in senior positions in the Justice Department, and high staff positions on the Hill and in the private sector,” the group said.

The FTC made some important strides in protecting competition, said Republican Commissioner Maureen Ohlhausen Tuesday in prepared remarks, but "a course correction" is needed in several areas, including "unnecessary and disproportionate costs" imposed on U.S. businesses and the value of intellectual property rights being discounted. During a discussion of antitrust policy at a Heritage Foundation event, Ohlhausen, who may become the next FTC chair at least on an interim basis (see 1701230043), said the most obvious examples of the Democratic-controlled commission imposing excessive costs on businesses is when it "wrongly sues a firm to potentially devastating effect." But she said pervasive regulation is a "more insidious effect." The FTC isn't a rule-making agency, but she said she worries "about the cost of compulsory process and second requests that firms experience in merger review and similar burdens in consumer protection investigations." She said she would like to convene a meeting with the FTC's Competition and Consumer Protection bureaus to address this issue and "narrow the scope and expense of compulsory process." She said the commission also should approach decisions with a regulatory humility philosophy "that has been absent in the last several years." That approach is something she has talked about often (see 1611160017). On IP rights, Ohlhausen said other countries, especially in Asia, take or permit the taking of U.S. proprietary technologies without payment, and "the FTC has unfortunately contributed to that dynamic." A patent's "essential quality" is the "right to exclude," but Ohlhausen said the commission "sees a competition problem" when patent owners "ask a court to enjoin unlicensed infringers." The commissioner said the FTC "wrongly heeded calls" from tech users who want to pay small royalties, citing the Google-Motorola Mobility case (see 1301040038) and last week's Qualcomm lawsuit (see 1701170065). "I hope that the commission under the Trump administration will act to protect IP rights," she said.

The likely implications of Ajit Pai's being named FCC chairman and what it means for ISP privacy rules and the rest of Verizon’s regulatory agenda are difficult to predict, said Verizon Chief Financial Officer Matthew Ellis on a financial call Tuesday as the carrier released Q4 results. “There’s a lot of changes going on in D.C,” Ellis said. The appointment of Pai “may have a number of impacts across the regulatory space,” he said. “It’s just too soon to tell exactly where we’re going to be.” Verizon has to make long-term investments, Ellis said. “Our investments aren’t focused on just who happens to be in office today,” he said. “We’re making investments for 10-plus years.” None of that will change, he said on his first call as CFO. He gave no update on Verizon’s proposed $4.83 billion buy of Yahoo, which over the past four months disclosed two data breaches that occurred in 2013 and 2014 (see 1609220046 and 1612150010). “We are still working with Yahoo to assess the impact of the breaches and we have not reached any final conclusions yet,” Ellis said. The acquiree said the deal's closing was delayed a quarter to Q2 (see 1701240034). Verizon meanwhile added 591,000 net subscribers in the quarter, with total subscribers of 114.2 million, up 1.9 percent from last year, Verizon said. But subscriber additions were below the 726,000 predicted by Wall Street analysts. “In the fourth quarter we expanded our customer base in highly competitive wireless and broadband markets,” CEO Lowell McAdam said in a news release. “This capped a year in which we delivered solid results and returned value to shareholders, including $9.3 billion in dividends.”

The FCC will consider a draft item that would eliminate requirements that cable providers and broadcasters keep publicly accessible hard copy information in their facilities as the sole regular agenda item at their Jan. 31 meeting, as expected, said the sunshine notice Tuesday. The meeting will be the first Ajit Pai will oversee as chairman. The draft item is expected to eliminate broadcasters' correspondence file requirement and cable providers' requirement to keep headend information in their facilities (see 1701170054). Commissioners also will consider four consent agenda items: an appeal of an administrative law judge decision dismissing two parties from a hearing, an appeal of an Enforcement Bureau Freedom of Information Act decision, a reconsideration order on the dismissal of a broadcaster's appeal seeking reinstatement of its license, and an order dismissing a TV license application.

Universal Service Administrative Co. issued a revised National Verifier Plan for the FCC Lifeline low-income broadband/telecom subsidy program. The plan, posted Monday in docket 11-42, updated a draft plan to shift administrative oversight away from Lifeline providers and to a national verifier (see 1612010043). The plan incorporated tweaks addressing comments (see 1612270027 and 1701030035), along with a new section summarizing USAC responses to queries, many of them technical. TracFone filed comments last week saying the draft plan largely met FCC objectives but it asked USAC to make further modifications to facilitate customer enrollments, provide timely responses to application denials and "manage the National Verifier in an efficient and non-discriminatory manner." USAC plans to update the plan further every six months. There were also several filings Monday and last week on the FCC's expansion of Lifeline coverage to broadband service. Sprint made a filing asking the FCC to clarify two aspects of its mobile broadband minimum service requirements: "whether W-Fi can be used to meet the minimum data allotment requirement; and whether the 3G technology standard is met if a Lifeline ETC [eligible telecom carrier] provides the subscriber who is classified as a broadband customer with a feature phone that cannot accommodate such technology." Another TracFone filing asked commission staff to look into a practice involving "abuse by certain Lifeline providers of the 'port freeze' rule in order to 'lock up' for 12 months those Lifeline customers who were enrolled in voice-only Lifeline services and who were provided with standard cellular telephones suitable for voice and text message, but which are unsuitable for use with Broadband Internet Access Service." It said the practice would undermine the FCC's broadband move unless addressed. Assist Wireless, Boomerang Wireless, Free Mobile, Easy Wireless, i-Wireless, Karma Mobility, Red Pocket and Telrite made filings in docket 09-197 contesting Wireline Bureau decisions to remove their Lifeline Broadband Provider (LBP) designation petitions from streamlined processing. They said the LBP process "was in danger of becoming a replica of the dysfunctional federal ETC designation and Lifeline-only compliance processes." The bureau issued an order Wednesday conditionally designating Applied Research Designs, Kajeet, Liberty Cablevision of Puerto Rico, Northland Cable Television and Wabash Independent Networks as LBP providers.