A court revealed the panel to review AT&T's challenge to an FCC VoIP symmetry order that's scheduled for oral argument Sept. 8 (see 1606170012). The panel will consist of Circuit Judge Judith Rogers, and Senior Judges Stephen Williams and Raymond Randolph, and each side will receive 20 minutes to argue, said an order of the U.S. Court of Appeals for the D.C. Circuit (AT&T v. FCC, No. 15-1059). AT&T says the FCC impermissibly changed its rule to allow CLECs partnering with over-the-top VoIP providers to charge interexchange carriers end-office switching fees for connecting long-distance calls to customers (see 1507310057).

Correction: Jonathan Cohen of Wilkinson Barker was part of the FCC team that designed the early spectrum auctions in the 1990s, but was not an adviser to the agency on the incentive auction design (see 1608300064).

Henning Schulzrinne is returning to the FCC as chief technologist for a second stint, at the end of the year, the agency said Wednesday. Schulzrinne, chief technologist from 2011 to 2014, replaces Scott Jordan, who did research on net neutrality before joining the FCC (see 1408270030). Schulzrinne will start at the FCC as senior adviser for technology, based in the Office of Strategic Planning. “Henning’s return to the agency ensures the Commission will continue to have outstanding technology expertise on hand as we tackle the policy problems of today’s complex communications networks,” said Chairman Tom Wheeler in a news release. Schulzrinne is professor of computer science and electrical engineering at Columbia University. Jordan was on leave from the University of California, Irvine.

The 9th Circuit Court of Appeals' Monday ruling in the FTC lawsuit against AT&T "appears to have significantly reset the boundaries between the [FTC's and FCC]'s] jurisdictions," wrote Kelley Drye telecom attorneys Steve Augustino and Jameson Dempsey in a Tuesday note. The 9th Circuit dismissed an FTC lawsuit that said AT&T failed to adequately disclose its data throttling policy to customers with unlimited data plans, which amounted to an unfair and deceptive practice (see 1608290032 and 1608300055). Augustino and Dempsey said the decision makes it more difficult for the FTC to bring action against any company claiming to be a common carrier and "even providing only a small amount of common carrier service may be enough to qualify all of a company’s activities for the common carrier exemption." They said if the FTC appeals the ruling, industry and practitioners could get "welcome guidance" and the court decision could "add fuel" to commission's longtime call to end the common-carrier exemption. Augustino and Dempsey said FCC authority to address common-carrier practices on advertising and billing will continue, but the 9th Circuit's ruling "may encourage the FCC to fill any potential gap in coverage by taking a broader view of its own authority to regulate non-common carrier services that common carriers offer to consumers." This might have "significant implications" for ongoing FCC proceedings, including one to revamp privacy rules and requests to classify SMS messaging and interconnected VoIP service as subject to common-carrier regulation, wrote the lawyers. Scott Cleland, chairman of broadband ISP-backed NetCompetition, said in a blog post Wednesday that rather than concern themselves about "duplicative, redundant or inconsistent oversight oversight" cited in an FTC-FCC memorandum of understanding on working together (see 1511160067), they "now have to worry about the unexpected gaping hole in consumer protection authority." Cleland said the 9th Circuit created unintended consequences in the set-top box area, broadband privacy rules, possible common-carrier status for Google and incentive for other companies to try to exempt themselves from FTC oversight. He said both agencies will have to work with Congress "forthwith, to modernize communications, consumer protection, and privacy law to be consumer-centric."

The FCC put out new fee filing guides Tuesday for the various bureaus (see here), one day after the agency in a public notice said application fees charged FCC licensees and permittees increased effective Tuesday to reflect a 1.8 percent change in the Consumer Price Index-Urban.

FCC Chairman Tom Wheeler told Sen. Elizabeth Warren, D-Mass., he shares her concerns about the importance of ISP privacy rules, in a response to an earlier letter from Warren. “As you highlight in your letter, in the course of providing service, [broadband] providers can collect vast amounts of customer data,” he wrote. “Even when data is encrypted, a broadband provider can still see the websites that a customer visits, how often the sites are visited, and the amount of time spent on each website.” Wheeler said the record shows broad disagreement on whether ISPs should be allowed to offer discounted service rates to consumers who consent to use and sharing of their information. But he said he agrees with Warren: “privacy should not be a luxury good reserved only for the wealthy.” Wheeler is expected to seek a vote on privacy rules as early as the commission’s October meeting (see 1608260055).

The 9th U.S. Circuit Court of Appeals Monday dismissal of an FTC lawsuit accusing AT&T Mobility of inadequately informing customers of its data throttling program (see 1608290032) could have implications for the internet advertising business and edge providers, said Cowen & Co. analyst Paul Gallant in a note Tuesday. He wrote that the ruling said the FTC is "precluded from regulating any aspect of an ISP for privacy, even other units of the company. The court said that once a company is deemed a common carrier, the entire company (not just the ISP business) is exempt from FTC oversight and is only subject to FCC rules." This is "encouraging" for ISPs like Verizon, which is diversifying its online ad business through recent AOL and Yahoo acquisitions, he wrote. Those units would be exempt from FTC oversight and Yahoo might also be exempt from FCC oversight since its authority would cover only actual broadband service, he added. Google could also avoid FTC privacy regulation, he said. "Google Fiber is a Title 2 common carrier service, which may exempt all of Google -- including search, Gmail, etc. -- from FTC privacy rules," wrote Gallant. Plus, Amazon, Facebook and Netflix also could acquire a small broadband provider to avoid such oversight, he added. As a result, Congress may have to broadly rethink the privacy oversight by both agencies and this might include eliminating the FTC common-carrier exemption, which would overturn the 9th Circuit ruling. "This is certainly possible, although Congress sometimes struggles to pass telecom legislation. And ISPs probably would press for any privacy bill to include equal privacy rules for ISPs and edge companies -- likely a contentious fight," he wrote.

The lack of any traction in the TV white spaces despite a big push from Google and the company’s backing away from Google Fiber should demonstrate a hard truth to the firm -- building a network isn’t easy, said Joan Marsh, AT&T vice president-federal regulatory, in a Tuesday blog post. Google deployed a fiber network in parts of seven of the 1,100 interested cities and now “appears to be pivoting toward using wireless technologies to defray the costs of fiber deployment and to bridge the last mile gap between utility poles and customer home,” Marsh wrote. Google has made a lot of excuses, she said. “It will also no doubt continue to seek favoritism from government at every level.” But Google’s experiments in broadband offer a story with a moral, she said. “Building reliable, ubiquitous high-speed broadband connectivity is tough,” Marsh wrote. “It takes an enormous commitment of capital and resources and a highly-skilled and capable work force. Yet AT&T has been at it for over 140 years. Between 2011 and 2015, while Google Fiber was cutting its teeth on fiber, AT&T invested over $140 [billion] in its network, building to over one million route miles of fiber globally and deploying ultra-high-speed fiber-fed GigaPower broadband services, reaching over a hundred cities.” Google didn't comment.

FCC staff is “actively engaged in constructive conversations with all stakeholders” on set-top boxes, Chairman Tom Wheeler told House Majority Whip Steve Scalise, R-La., in response to a letter questioning commission set-top efforts. The FCC is talking to “content creators, minority and independent programmers, public interest and consumer groups, device manufacturers and app developers, software security developers, and pay-TV providers of all sizes-on how to ensure that consumers have the competition and choice they deserve,” Wheeler said. Those conversations touched on “a wide range of issues,” including the pay-TV backed set-top plan, Wheeler said. “I am hopeful that these discussions will yield straight-forward, feasible and effective rules for all.”

Upcoming meetings of FCC committees include the Disability Advisory Committee and Task Force on Optimal Public Safety Answering Point Architecture, with the first 9 a.m.-3:30 p.m. Sept. 22, and the second the next day 1-4 p.m., said commission items (see here and here) appearing in or set to be in the Federal Register. The federal advisory committee gatherings will be in the Commission Meeting Room.