The Internet Innovation Alliance drafted a memo for the next president, released Thursday, slamming Communications Act Title II reclassification of broadband and urging a rewrite of the Telecom Act. FCC 2015 net neutrality rules, relying on Title II, “inappropriately and unwisely apply decades-old, monopoly-style regulation to vibrant, competitive broadband and wireless Internet,” said the group, which includes Title II opponent AT&T. “They deter investment, not foster it. They limit innovation, not promote it. Their impact has been small at first, but it will become more evident over time.” The memo urged the next president to favor private sector broadband investment, promote competition and manage spectrum well. “As a finite resource, it is vital that spectrum resources be made available for mobile broadband services,” it said. “We should continue efforts to make spectrum available for mobile broadband by either reallocating spectrum currently used for other purposes or making underutilized government-controlled spectrum available for commercial wireless services. Policymakers should also continue to ensure we find the right mix in making spectrum available for licensed and unlicensed services.” It also endorsed universal service goals and urged protection of both privacy and security of users. “While the 1996 Act has been a great success, it’s time to update the Act to reflect current conditions and the competitive markets that now exist with a new regulatory model that ensures government does not slow down the pace of innovation,” the group said of a telecom rewrite. “Support for a new Act would be a major accomplishment of your Administration and would show the public that bipartisan cooperation in Congress is still possible -- no small achievement in this time of sharp partisan division.”

T-Mobile's repacking study “appears to work backwards” from the FCC's 39-month repacking deadline and $1.75 billion reimbursement fund, said Digital Tech Consulting, authors of a November study of the repacking promoted by NAB, in a letter filed in docket 12-268. The T-Mobile study “reflects a number of flawed assumptions and conclusions” DTC said. T-Mobile's study is inaccurate about the flexibility of broadband antennas, the capacity of antenna manufacturers to meet a demand surge, and the availability of tower crews, DTC said. “T-Mobile meaningfully underestimates the scope of antenna removal and installation work the transition will require,” DTC said. “We stand by our study and look forward to working with the broadcasters to enable a smooth post-auction process for all,” emailed Steve Sharkey, a T-Mobile senior director.

A coalition of civil rights, human rights and technology policy organizations sent the FCC a letter Wednesday asking the agency to keep civil rights principles in mind as it acts on privacy rules for ISPs. The rules should be consistent with a 2014 document, “Civil Rights Principles for the Era of Big Data,” the groups said. “As part of that rulemaking, we encourage the Commission to review the ways in which the use of collected data could have a disproportionate adverse impact on historically disadvantaged communities, develop rules consistent with the Civil Rights Principles for the Era of Big Data, and ensure that baseline privacy protections extend equally to all wireless and wireline broadband consumers, regardless of their income level,” the groups said. “Privacy protections should be made equally available to all consumers, regardless of whether they are rich or poor, using fixed or mobile connections. In light of how data collection and use practices could reinforce societal disparities, the Commission should set strong baseline privacy rules that ISPs must respect for all of their customers.” The more than 20 signers of the letter include the American Civil Liberties Union, Common Cause, Communications Workers of America, Free Press, Media Alliance, New America's Open Technology Institute, Public Knowledge and United Church of Christ. Several of the groups also released statements. "It is crucially important that consumers not be forced to choose between going online and protecting their privacy -- we can do both, and the Commission’s proposal will help us get there," said Laura Moy, representing OTI.

The All Writs Act that DOJ and the FBI are using to try to force Apple to comply with a court order to help the government gain access to an iPhone used by a San Bernardino, California, mass shooter "does not authorize such relief, and the Constitution forbids it," Apple said in a 33-page motion filed Tuesday (see 1603040023) in U.S. District Court in Riverside, California. Apple was responding to a government's motion filed Thursday that the act is being used correctly (see 1603110010). "The government attempts to rewrite history by portraying the Act as an all-powerful magic wand rather than the limited procedural tool it is," Apple said. "The case hinges on a contentious policy issue about how society should weigh what law enforcement officials want against the widespread repercussions and serious risks their demands would create." Apple is asking the court to reject the government's argument and vacate the order.

The FCC released the inmate calling services public notice, which says because a federal court didn’t stay the definition of inmate calling from the 2015 ICS order -- which included include both interstate and intrastate calling -- the 2013 rates will apply to both. The same effective dates also apply to the rates “for ICS calls involving TTY devices, the rule governing the treatment of taxes and fees, the rule prohibiting per-call or per-connection charges, the rule prohibiting flat-rate calling, and the rules governing minimum and maximum calling account balances,” the Wednesday notice said. The U.S Court of Appeals for the D.C. Circuit blocked new ICS rate caps last week and one other set of fee restrictions, pending further review, but let stand the rest of the commission’s 2015 ICS order (see 1603070055). The Wright petitioners hailed the PN in an emailed comment. “The Wright Petitioners are relieved that the FCC saw through the ICS providers’ last-ditch effort to avoid lowering rates for intrastate prison calls,” they said. “The FCC was correct in refusing to bail out the ICS providers for their failure to recognize that the interim rate caps would apply to intrastate prison rates.” Most ICS calls are intrastate in nature and as a result “the FCC’s refusal to ‘clarify’ the very clear intent of the FCC’s rule changes will provide immediate relief to millions of inmates and their families from unjust, unreasonable and unfair intrastate prison rates,” the Wright petitioners said. Martha Wright, who died in 2014, raised the initial complaint to the FCC on ICS rates that led to reform.

Merrick Garland, President Barack Obama's Supreme Court pick, is highly respected by communications attorneys we talked to Wednesday after the White House announced his nomination. Garland has been a judge since 1997 on the U.S. Court of Appeals for the D.C. Circuit, which decides many FCC cases, and he is now chief judge. "People get jaded about hearing judicial nominees described as 'brilliant' and 'unbiased' and having a 'perfect judicial temperament.' But it's all true here. No one can oppose this choice on the merits,'" said Harris Wiltshire attorney Chris Wright, a former FCC general counsel, who has argued several cases before Garland and read many of his opinions. "He's a great judge," said another telecom attorney. "He's straight down the line, a good judge, a very solid appointment," said a media attorney. "He's certainly qualified, but it sounds like he doesn't have a snowball's chance in hell of getting confirmed. It would take a miracle." Republican senators have vowed not to act on Garland's nomination. Despite Garland's long tenure, some attorneys said it's hard to pigeonhole his communications views. Andrew Schwartzman, Georgetown University Institute for Public Representation senior counselor, said Garland doesn't have a clear-cut "communications track record," because most of his FCC decisions weren't in big cases. "I'd have to go back and look," he said. Another veteran attorney, who called Garland a moderate Democrat and "smart guy," had a similar impression: "I don't believe he's been a key player in many major FCC decisions." One significant case Garland did help decide was a Verizon challenge to FCC wireless data-roaming rules, where he joined two other judges in upholding the agency's order in December 2012 (Cellco Partnership v. FCC). Judge David Tatel wrote that opinion.

One of the biggest challengers of Charter Communications' plans to buy Bright House Networks and Time Warner Cable still hopes for conditions on the deals, amid indications the FCC could be nearing a decision. The Stop Mega Cable coalition said a report in the Wall Street Journal Tuesday night that Chairman Tom Wheeler is close to circulating a draft order on approval of the deals "gloss[es] over the difficult questions that still must be addressed." The group, which has made its case about harms of the deal before the FCC multiple times (see 1603110048, 1602240030 and 1602110045), said New Charter "profoundly threatens competition and choice in the cable-and-broadband marketplace. This FCC and DOJ have made clear that these problems are a top priority and have a track record to back it up. This all suggests that the deal will not be approved without strong, enforceable and long-lasting conditions that protect consumers. The Stop Mega Cable Coalition will continue its efforts to ensure that this deal does not get approved until its many harms are addressed." The FCC declined to comment Wednesday except to say the deals remained under review. The agency's unofficial 180-day shot clock for that review stood Wednesday at 172. Charter also didn't comment. In a statement Wednesday, David Segal, executive director of activist organization Demand Progress, said New Charter approval would mean "Big Cable will see even bigger profits while American consumers will be stuck with higher prices and fewer options. Chairman Wheeler has talked a good game about supporting competition in the broadband market, and whether he rejects the Charter merger will put his words to the test." Free Press President Craig Aaron said much the same when he called Charter/TWC/BHN "a waste" considering the costs involved. "This same money could be spent to build new competitive broadband options for tens of millions of people," he said. "If this deal gets approved, however, these billions won’t help build anything. They’ll merely be a payoff to Time Warner Cable’s shareholders and executives. CEO Rob Marcus will get a $100 million golden parachute for his troubles, while cable customers will be stuck with the tab." Aaron said New Charter and Comcast "would have unprecedented control over our cable and Internet connections," resulting in fewer choices, higher prices and lessened competition. "No conditions can mitigate this merger’s many public interest harms or lower the monthly bills for those who’ll be hit hardest by these rate hikes: people in low-income communities and on the wrong side of the digital divide," he said, adding that Wheeler "needs to block this disastrous deal and get back to protecting the public interest."

The FCC should consider removing requirements for cable operators to make headend information available locally when it considers whether to eliminate the correspondence file requirement for commercial broadcasters, NCTA said in a letter posted in docket 14-127 Tuesday. The FCC said it would consider taking the broadcaster correspondence file online when it extended the online public file requirement to radio and pay-TV carriers. “The need to retain headend location information locally impedes cable operators from fully transitioning to an online file and should be examined in the same proceeding,” NCTA said. “Both involve the question of whether the costs of the remaining local file requirements outweigh any public benefits.” The FCC had said putting headend information online would be a security risk, but NCTA said keeping the information on hand locally “imposes unnecessary costs that should be examined in any upcoming rulemaking."

The FCC reminded political campaigns and calling services of limits on the use of autodialed calls (robocalls) or texts and prerecorded voice calls. "The FCC is committed to protecting consumers from harassing, intrusive, and unwanted robocalls and texts, including to cell phones and other mobile devices," the commission said in a public notice in Tuesday's Daily Digest. The enforcement advisory noted political campaigns are subject to FCC regulations under the Telephone Consumer Protection Act, which put restrictions on unsolicited prerecorded telemarketing calls to residential wireline phones and all autodialed calls or prerecorded voice calls to wireless numbers, emergency numbers and patient rooms in healthcare facilities. The "Enforcement Bureau will rigorously enforce the important consumer protections in the TCPA and our corresponding rules," the agency said. The PN contained summary descriptions of the restrictions and answers to FAQ.

The FCC should "confirm the continued availability of unbundled DS1 and DS3 copper loops," Windstream said Tuesday (unbundled ILEC loops must be made available to competitors at wholesale discounts). In meetings and calls with FCC officials, "Windstream urged the Commission to grant Windstream’s declaratory ruling petition in order to help ensure that the current competition options available to small business, government, and nonprofit customers of dedicated services will be unaffected by a change in transmission protocol from TDM to IP or by the use of fiber," the company said in a filing in docket 13-5. "As Windstream had highlighted when it filed its petition, the availability of unbundled DS1 and DS3 capacity loops was a foundational premise and justification for the Commission’s prior grants of forbearance with respect to specified packet-based services. The time is ripe for the Commission to act on disputes regarding these loops." Windstream noted various state regulatory commissions had supported its petition, including the Pennsylvania Public Utilities Commission (see 1603140070). Meanwhile, Anna-Maria Kovacs, a visiting senior policy scholar at Georgetown Center for Business and Public Policy, said in a study that CLECs and cable companies competing in the special access market are "in good financial health," while "ILECs' low cash flows reflect the continuously increasing cost of sustaining a ubiquitous network" serving just "a third of the lines for which it was engineered."