A federal appellate court sided with Free Conferencing on two claims and Qwest on one in a case stemming from traffic-stimulation allegations. A panel of the 8th U.S. Circuit Court of Appeals ruled on a Qwest appeal of a ruling of U.S. District Court in Sioux Falls, South Dakota that found the CenturyLink long-distance unit didn't prove its claims against Free Conferencing. "We affirm the district court on the claims for intentional interference with a business relationship and unfair competition. We reverse and remand on the claim for unjust enrichment," said the controlling opinion of Judge Myron Bright released Thursday in Qwest v. Free Conferencing, No. 15-2406. Free Conferencing entered into a contract over a decade ago to have Sancom, an LEC, host FC's free conference call bridges and split revenue generated by long-distance traffic and associated terminating access charges collected by Sancom from interexchange carriers (IXCs), wrote Bright, who explained background in the case. FC knew the contract would take advantage of the tariff, but the district court said FC's president was credible in arguing he didn't know the arrangement was unlawful. The arrangement caused a spike in traffic and Qwest eventually stopped paying Sancom access charges, leading Sancom to sue Qwest in 2007, followed by Qwest suits against both Sancom and Free Conferencing. Under prodding from Qwest, the FCC issued a series of decisions and findings on traffic-stimulation disputes, including one saying Sancom couldn't bill Qwest under its tariff for calls terminating at FC's bridge. Qwest and Sancom settled for an undisclosed amount, but Qwest and FC went to trial in 2014. The district court rejected all Qwest claims and the IXC appealed on three. While upholding that decision on two claims, the 8th Circuit panel sided with Qwest in ruling that the lower court failed to consider important factors undergirding its unjust enrichment claim. Bright's ruling vacated the lower court decision on that claim and remanded it for reconsideration. In conflicting dissents, Judge Bobby Shepherd said he would have denied Qwest's unjust enrichment claim, but Judge Diana Murphy said Qwest was "entitled to recover from Free Conferencing on its claims for tortious interference and unjust enrichment" after she concluded FC and Sancom deliberately avoided compliance with the law. CenturyLink emailed that it was pleased the court found in its favor on one count and said it's considering its legal options. Free Conferencing didn't comment.

NTIA's Digital Economy Board of Advisors, formed last year to make recommendations about the digital economy and internet policy to the Commerce secretary, plans a public meeting Sept. 30 at Mozilla headquarters in Mountain View, California, said an agency notice in Wednesday's Federal Register. It's the second full meeting for the 17-member board, which initially met in May (see 1605160058) to determine priorities. Markle Foundation CEO Zoë Baird and Mozilla Foundation Executive Chairwoman Mitchell Baker co-chair the NTIA board. The meeting, which will be webcast, will have two sessions, from 11:30 a.m. to 3:30 p.m. EDT and 4:30 p.m. to 5:30 p.m. EDT.

FCC Commissioner Ajit Pai’s call to action to the FCC and Congress to speed deployment of gigabit broadband service to low-income, rural communities met with widespread industry support. Pai spoke at an Ohio startup incubator Tuesday (see 1609130061). “We are grateful to Commissioner Pai for his efforts to jump-start this discussion with specific ideas and for placing a spotlight on the fact that more public and private resources are needed to address and overcome our nation’s rural broadband challenges,” NTCA CEO Shirley Bloomfield said. Pai is working “to remove barriers to the widespread deployment of wireless infrastructure which will unleash the vast benefits of mobile broadband for consumers and the economy,” said Jonathan Adelstein, president of the Wireless Infrastructure Association. The speech is “a breath of fresh air,” said Berin Szoka, president of TechFreedom. “For the last six years, the FCC has cynically invoked inadequate broadband deployment as a pretext for pushing its preconceived regulatory agenda -- while doing next to nothing to make broadband deployment easier. The right question has never been whether the FCC should act, but whether it’s focused on the right goals and is acting within its legal authority.” Pai’s proposal for gigabit opportunity zones “was inspired by Jack Kemp’s market-driven enterprise zones concept 40 years ago,” said David Honig, president emeritus of the Multicultural Media, Telecom and Internet Council. “Gigabit Opportunity Zones have considerable promise as part of the toolkit that could ensure that all Americans -- especially those who need broadband the most to lift them out of poverty -- are afforded access.” "Unfettered free market beats industrial policy every time!” tweeted Robert McDowell, now at Wiley Rein, who served with Pai on the FCC. “See common-sense & powerful plan by @AjitPaiFCC.” Kemp was a Republican member of Congress who championed enterprise zones.

T-Mobile is asking the FCC to give ISPs a 12-to-18-month implementation period if the agency approves privacy rules. A vote on an order is expected in October (see 1609080054). T-Mobile reported on a meeting with staff from the Wireless and Wireline bureaus. Privacy and security are very important to T- Mobile, said a filing in docket 16-106. “An overly prescriptive regime, including broad scope and expansive notice and opt-in requirements, may prevent consumer-friendly innovation without offering any significant corresponding privacy benefit to consumers,” T-Mobile said. “It will take a significant amount of time for companies to implement entirely new rules in this space, and even if the Commission adopts a regime consistent with that of the Federal Trade Commission.” Common Sense Media, meanwhile, urged the FCC to act on rules. “The broadband privacy protections under consideration are especially important for children and teens. Young people are constantly online,” it said in a filing. “With the explosive growth of digital devices and smart phones, education technology in the classroom, and social and mobile media, today’s youth are living out their days almost entirely online at home, at school, and in between.”

Iconectiv (Telcordia) said it's "confident" a court will uphold industry-backed FCC orders finding the company would be a neutral local number portability administrator. The U.S. Court of Appeals for the D.C. Circuit heard oral argument Tuesday on Neustar's challenge to two FCC LNPA selection orders (see 1609130031). "As both the Commission and the industry argued ... Neustar’s claims are meritless," emailed iconectiv Wednesday. "We look forward to putting this appeal behind us, so that all parties can focus on the transition and begin realizing the significant security, technology and cost benefits that the new contract and NPAC [number portability administration center] application will bring to the industry and consumers." Neustar didn't comment.

NCTA proposed a business data service framework as it and others criticized rival recommendations and possible FCC regulation. The cable group said key Incompas/Verizon proposals to broadly regulate all BDS providers had been "thoroughly refuted." It said regulation should be applied only to legacy BDS rates in census tracts having a single BDS-capable facilities provider, fewer than 10 BDS customers, and no customers buying fiber-based Ethernet services. "Rates for TDM services in these noncompetitive tracts would be regulated under the existing price cap regime, and should account for higher costs," said an NCTA filing to be posted in docket 16-143. "Regulation would sunset in 2025 if at least one provider offers Ethernet services in the census tract at that time. The Commission also should adopt an expedited complaint process." Incompas emailed that its proposals with Verizon open "a race to the future, filled with lower prices, competition and investment. These are all things NCTA opposes, so it’s not surprising to see them propose a flawed framework that favors monopoly and duopoly control." Level 3 said NCTA ignored "overwhelming evidence" that BDS competition is often lacking. “NCTA would have the Commission adopt, once again, a framework for deregulation that relies on imaginary potential competition rather than actual evidence, just a few short years after the Commission finally abandoned its failed 'pricing flexibility triggers' framework, perhaps the most notable characteristic of which was its similarity to the NCTA proposal," Level 3 emailed . But NCTA and others cited seven economists who said they were troubled by proposals to "impose widespread rate regulation in all markets" that don't have at least three or four BDS providers. The commission should adopt "a competitive market test targeted squarely at combating supracompetitive rents in entrenched monopoly markets, rather than regulating markets with multiple facilities-based competitors present," said a letter to be posted from Joseph Farrell, professor emeritus at the University of California, Berkley; Michael Katz, a UC-Berkley professor; and others. The Communications Workers of America said it's "deeply concerned" the FCC is considering an Incompas/Verizon BDS framework that could cause a "20 percent (or higher) flash cut in rates," reducing provider annual revenue by $1.4 billion, as estimated by an economist. "Drastic" BDS rate cuts "would lead to reduced investment in broadband networks -- especially in rural areas -- and downward pressure on jobs and living standards," said the letter from CWA President Christopher Shelton to be posted. The Competitive Carriers Association called for "immediate BDS reform, particularly as mobile carriers work to densify their networks" to prepare for 5G. The FCC should "adopt a presumption that low-capacity BDS are not competitive and apply a competitive market test to high-capacity BDS above-50 or -100 Mbps," said a CCA filing on a meeting (see 1609140028) with Commissioner Jessica Rosenworcel and an aide. Alaska Communications discussed the "unique characteristics of the BDS market in Alaska" with commissioner aides, said another filing.

Officials from various public interest groups, in a meeting with an aide to Commissioner Mignon Clyburn, pressed for quick FCC action on ISP privacy rules. The groups cited a recent 9th U.S. Circuit Court of Appeals' ruling that the FTC had no jurisdiction over AT&T in a data throttling case as evidence of the need for FCC rules (see 1608290032 and 1608300055). “To the extent ISP arguments are based on the effectiveness of FTC guidance, frameworks, and oversight in protecting against reidentification of deidentified datasets, those arguments are undermined" by the 9th Circuit decision, said a filing posted Tuesday in docket 16-106. “The 9th Circuit stated that the common carrier exemption to Section 5 of the FTC Act is a status-based exemption, and therefore the FTC cannot enforce against companies with the status of common carrier, like AT&T Mobility. Thus, the FTC does not provide a backstop for baseline privacy protections, reinforcing the need for strong FCC-imposed privacy rules now.” The letter was signed by the Institute for Public Representation at Georgetown Law and New America’s Open Technology Institute, and included a letter last week (see 1609080054) from many groups like Center for Digital Democracy, Consumer Federation of America, Demand Progress, Electronic Frontier Foundation and Free Press.

FCC Commissioner Ajit Pai Tuesday laid out a vision for tacking the digital divide, backing gigabit opportunity zones in some of the nation’s more economically challenged areas. “Significant tax incentives would be provided to spur private-sector gigabit broadband deployment,” said Pai in a speech in Cincinnati. Businesses would get incentives to create jobs through a tax credit that offsets the employer’s share of payroll taxes. Pai also urged the FCC to move forward on the second phase of a mobility fund, which was a hot topic at CTIA last week (see 1609090016). The new phase should provide” tech-neutral performance metrics,” eliminate duplicative support, maintain “support where it is needed,” and be based on current needs, he said. The FCC should also “increase the build-out obligations of wireless carriers and incentivize rural broadband investment by extending license terms up to 15 years,” he said. “Sadly, there is a real and growing digital divide in this country,” Pai said. “Although gigabit services and mobile broadband are becoming common features of wealthier, metropolitan areas, they aren’t universal. Almost 34 million Americans don’t have access to the broadband networks needed to fully participate in the digital economy.” Pai released both highlights of his proposal and the text of his speech. Pai also urged the commission, working with Congress, to take steps to speed broadband facility siting. "The FCC should use its existing authority under sections 253 and 332 of the Communications Act and section 6409 of the Spectrum Act to remove state and local barriers to deployment, such as unfair and unreasonable fees," Pai said. The agency should reform pole attachments rules and develop a model code for communities that "want to encourage broadband deployment for their citizens and to attract new businesses and startups," he said.

The FCC proposed a Q4 USF contribution factor of 17.4 percent of carrier interstate and international telecom end-user revenue, said the Office of Managing Director in a public notice Monday in docket 96-45. It will be deemed approved if the agency doesn't act on it within 14 days, the PN said. Industry consultant Billy Jack Gregg had predicted the Q4 factor would fall to 17.4 percent from Q3's 17.9 percent (see 1609010062).

The Consumer Advisory Committee will hold the last meeting of its current term Oct. 14, the FCC said Monday. The meeting starts at 9 a.m. and is to run through 3 p.m. in the Commission Meeting Room at agency headquarters, said a public notice. The committee will consider a recommendation from its No Surprise Billing Task Force “regarding the clarity of charges at point of sale and on bills,” the FCC said. The committee also will receive briefings from agency staff on consumer issues before the agency.