At least three more parties asked a federal court for permission to file amicus briefs in the litigation over the FCC net neutrality and broadband reclassification order. This week, the Center for Boundless Innovation (CBIT), International Center for Law and Economics (ICLE) and Phoenix Center filed motions (here, here and here) with the U.S. Court of Appeals for the D.C. Circuit to file briefs supporting petitioners challenging the FCC order, which are Alamo Broadband, the American Cable Association, AT&T, CenturyLink, CTIA, Daniel Berninger, Full Service Network, NCTA, USTelecom and the Wireless Internet Service Providers Association. All but FSN is challenging the FCC order as overly regulatory. CBIT said it would argue that broadband ISPs are part of the "press" that's protected by the First Amendment from common carrier regulation imposed by the FCC through its reclassification of broadband Internet access services under Title II of the Communications Act. The ICLE would argue the order exceeded FCC delegated authority, and even if it didn't it acted arbitrarily and capriciously "by failing to consider relevant economic literature, evidence, and the costs" of its rules. The Phoenix Center would address a "narrow legal issue deliberately sidestepped" by the FCC in lumping "edge providers" with retail customers of "Broadband Service Providers," which the center said "appears to be a strategic choice designed to obscure the regulatory implications of reclassification on the end-user termination service provided by BSPs to edge providers." If the FCC had properly followed D.C. Circuit precedent in the 2014 Verizon v. FCC case, it should have defined what a "just and reasonable" rate was for terminating end-user traffic, which would have potentially conflicted with the agency's net neutrality rule prohibiting paid prioritization and effectively mandating a zero price, the Phoenix Center said. Other parties recently moved to file amicus briefs (see 1507150012 and 1507140035).

A draft FCC order to approve AT&T's acquisition of DirecTV with conditions is circulating, Chairman Tom Wheeler said late Tuesday in an emailed statement. "If the conditions are approved by my colleagues, 12.5 million customer locations will have access to a competitive high-speed fiber connection," Wheeler said. "The conditions will build on the Open Internet Order already in effect, addressing two merger-specific issues. First, in order to prevent discrimination against online video competition, AT&T will not be permitted to exclude affiliated video services and content from data caps on its fixed broadband connections. Second, in order to bring greater transparency to interconnection practices, the company will be required to submit all completed interconnection agreements to the Commission, along with regular reports on network performance."

A draft notice of inquiry on the FCC's advanced telecom mandate under Section 706 of the 1996 Telecom Act is circulating among commissioners, said the agency's latest posting of Items on circulation, which is updated weekly. Listed is an "Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996." Last year's inquiry led the FCC to increase its general broadband speed definition to 25/3 Mbps.

The FCC likely hasn't rejected outright long-form applications of Northstar Wireless and SNR Wireless, the designated entities that Dish Network used to indirectly buy, using bidding credits, the second-most AWS-3 spectrum of any player in the auction (see 1507160054), Wells Fargo emailed investors Friday. Various news outlets reported Thursday the licenses are rejected under the order circulated by FCC Chairman Tom Wheeler. Industry officials told us that the order appears instead to refer questions about possible collusion to the Enforcement Bureau for further investigation. “We checked with our contacts” and “this order could just be a referral to the FCC's Enforcement Bureau to investigate unlawful collusive bidding,” Wells Fargo said. “Clearly this wouldn't be a positive either, but our point is no one knows what this document actually says.” Lawyers with ties to the DEs told us they have not been briefed on the FCC order. In comments on the competitive bidding rules approved by the agency Thursday, Commissioner Mignon Clyburn referred only to the “alleged activity that people have criticized in the AWS-3 auction.” The last thing either Dish or the FCC likely wants is another auction, said one lawyer who has represented a number of DEs. The most likely scenario would be the FCC coming up with a circumstance for granting the licenses, and Dish making up the financial difference and then trying to figure a path out of its DE arrangement. Another option before the FCC is to designate the matter for a hearing -- the same step that led to the implosion of Comcast's planned buy of Time Warner Cable -- the attorney said. In that scenario, Dish might then try to go through the hearing and make its case, arguing that its DE arrangement was similar to others the FCC has approved. “There’s some truth to that,” the attorney said. “If the FCC determined there was collusive bidding Verizon might have a strong case to sue the FCC to invalidate the entire AWS-3 auction and re-auction all the licenses,” BTIG analyst Walter Piecyk told us Friday.

Correction: The proposed FCC wireless mics report and order addresses only licensed mics, but a Part 15 report and order addresses unlicensed devices, including unlicensed mics (see 1507160054).

The FCC has no place in regulating online video distributors, Commissioner Ajit Pai said Friday. "Even though online video has thrived precisely because of the government's hands-off approach," some in government "view the Internet as too important not to regulate," Pai said in a Churchill Club address that later was posted online. The FCC is considering reinterpreting the definition of multichannel video programing distributors to include over-the-top (OTT) providers of multiple streams of prescheduled, linear video programming -- a move that faces pushback from numerous media companies as well (see 1507140011). While backers of the move say such regulation would assist online video distributors (OVDs), "the benefits promised are illusory," in large part because the Copyright Office does not consider OTT providers as cable systems and thus have no legal right to a compulsory copyright license to show broadcast programming, Pai said. "The FCC's regulations would likely compel retransmission consent negotiations that lead to the carriage of little to no programming." While nothing stops broadcast programmers and OVDs from negotiating their own carriage and licensing agreements, he said, the FCC has no legal ability to force such negotiations "because copyright law stands in their way." Instead, Pai said, "It's all about increasing the FCC's authority -- about putting the FCC at the head of the digital table and bringing another industry within our reach." If the agency does in fact begin regulating only a certain segment of OTT operators, that almost surely will lead to the agency seeking to regulate other segments, Pai said. "I can even predict one of the arguments that will be made: How is it fair to regulate one type of online video provider but not another?"

FCC Commissioner Mike O'Rielly will give the keynote address at a Free State Foundation seminar, "Implementing Real Regulatory Reform at the FCC," to be held July 28, noon to 2 p.m. O'Rielly is scheduled to talk about regulatory reform proposals he has put forward at the agency, with a panel discussion to follow. The event will be at the National Press Club. For more information, contact the Free State Foundation at info@freestatefoundation.org.

President Barack Obama praised the commitments of other stakeholders involved in the ConnectHome initiative he launched this week (see 1507150053), devoted to putting affordable or free broadband in low-income households in 28 communities. “Now, I want to give credit where credit is due,” Obama said Wednesday evening during a speech in Durant, Oklahoma, where one initiative beneficiary -- the Choctaw tribal nation -- is based. “This is not something government does by itself. I’m proud to say that folks around the country are stepping up to do their part. So businesses like Cox are providing low-cost Internet and devices. Best Buy is committing [to] free computer education and technical support so that folks learn how to make the most of the Internet.” A higher percentage of the people in South Korea have access to high-speed broadband than they do in the U.S., Obama said. He framed ConnectHome as a part of a broader administration goal: “So that’s why my administration has made it a priority to connect more Americans to the Internet, and close that digital divide that people have been talking about for 20 years now,” he said. “We’ve invested so far in more than 100,000 miles of network infrastructure; that’s enough to circle the globe four times. We’ve laid a lot of line. We’ve supported community broadband. We’ve championed net neutrality rules to make sure that the Internet providers treat all web traffic equally. And then we launched something called ConnectEd, and this was targeted at making sure that every school was connected and classrooms were connected. And we’re now well on our way to connecting 99 percent of students to high-speed broadband in their classrooms by 2018, and that includes here in Durant.” House Commerce Committee ranking member Frank Pallone, D-N.J., issued a statement Thursday praising ConnectHome as “an important step.”

Charter Communications “made net neutrality history” when it committed to “open and free interconnection” across the Charter/Time Warner Cable network “if their pending merger is approved” (see 1507150038) Netflix CEO Reed Hastings and Chief Financial Officer David Wells said Wednesday in a quarterly letter to shareholders. “This move ensures that all online video providers can aggressively compete for consumers' favor, without selective and increasing fees paid to ISPs.” Charter's policy “is the right way to scale the Internet” because it means consumers “will receive the fast connection speeds they expect,” they said. “The Charter/TWC transaction, with this condition, would deliver significant public interest benefits to broadband consumers, and we urge its timely approval.” Netflix in Q2 exceeded 65 million subscribers, including 42 million in the U.S. and 23 million overseas, the letter said. “We are at the forefront of a wave of global Internet TV adoption and intend to make our service available throughout the world by the end of 2016.” To support its global expansion, Netflix is “focused on adding more languages, optimizing our personalization algorithms for a global library in local markets, and expanding support for a range of device, operator and payment partnerships,” the letter said. “We are also placing a greater emphasis on optimizing for mobile, which is the main means for Internet access in many emerging markets where we will be expanding in the future.”

More parties are seeking to file amicus briefs supporting petitioners challenging the FCC net neutrality order, motions filed Tuesday revealed in USTelecom v. FCC, No. 15-1063 at the U.S. Court of Appeals for the D.C. Circuit (available via Pacer). Petitioners challenging the order's net neutrality rules and broadband reclassification as a telecom service under Title II of the Communications Act are Alamo Broadband, the American Cable Association, AT&T, CenturyLink, Daniel Berninger, CTIA, NCTA, USTelecom and the Wireless Internet Service Providers Association. The Business Roundtable, National Association of Manufacturers and U.S. Chamber of Commerce to file an amicus brief that would argue the FCC regulation "will reduce broadband investment and stifle innovation." The Georgetown Center for Business and Public Policy seeks to address the "underlying economic issues" and show the commission "incorrectly assessed both the costs and benefits of a Title II regulatory regime" and "explain and quantify how the FCC's actions will negatively impact investment in the Internet." University of Pennsylvania Law professor Christopher Yoo seeks to show the order "contradicts the technical principles that determined" the Supreme Court's 2005 ruling upholding the commission's previous Title I cable broadband classification in NCTA v. Brand X. Richard Bennett, who says he is a co-inventor of Wi-Fi and modern ethernet architecture, seeks to explain how the Title II broadband reclassification "effectively bans Quality of Service modes of communications unique and essential to the functioning of the Internet, and are vital for real-time communication, High-Definition voice, video conferencing, and the Internet of things." He also plans to show the agency ruling "displays a lack of expertise on the subject matter" and made other errors, including by ignoring that broadband Internet access service is "part of an integrated whole that includes a larger and more important information processing component." The Multicultural Media, Telecom and Internet Council seeks to support AT&T, CenturyLink, CTIA, NCTA and USTelecom by arguing that the commission "failed to adequately consider evidence that Title II regulation will: 1) impose a regulatory paradigm that will adversely affect broadband access, deployment and adoption in historically disadvantaged communities where mass market broadband services are not ubiquitous; and 2) endanger the progress made under the FCC's previous regulatory paradigm toward narrowing the digital divide for vulnerable populations and creating workforce development in these communities." Three other parties made filings on Monday announcing their intent to submit amicus briefs supporting petitioners (see 1507140035).