June's net neutrality decision by the U.S. Court of Appeals for the D.C. Circuit doesn't support the FCC argument that providing common-carrier services turns a cable system into a Communications Act Title II facility exempt from local Title VI regulation, said Montgomery and Anne Arundel counties, Maryland, and Dubuque, Iowa, in a filing (in Pacer) Tuesday before the 6th U.S. Circuit Court of Appeals. They and the FCC disagree about the significance of that decision in their appeal of a 2007 FCC order that extended to incumbent cable operators many limits put on new entrants and a 2015 order clarifying that franchising regulations don't apply to state laws on cable TV or to state-level franchising authorities (see 1605020030). The USTelecom v. FCC ruling "concerns the classification of a service, not the facilities transited by the service," the municipal interests said. Since entities providing common carrier services via cable systems are often different parties than cable system operators themselves, the FCC is on shaky ground because USTelecom suggests the FCC may be constitutionally barred from imposed common carrier obligations on a provider "not simply holding itself out as a 'neutral indiscriminate conduit,'" the municipal interests said in reply to an FCC brief (in Pacer) filed in June after the USTelecom decision. In it, the FCC argued the D.C. Circuit in its USTelecom decision rejected the municipal interests' argument that the NARUC test for determining common carriage is dispositive and instead sided with the FCC that broadband providers, including those that also offer cable services, are common carriers when they provide telco services. That lines up with the FCC stance that a cable operator's facility is a common-carrier facility when it provides common-carrier services, the agency said: "The D.C. Circuit's analysis, while not binding on this Court, is thorough and persuasive."

The office of Sen. Dan Sullivan, R-Alaska, is "in regular communications with the FCC" and Alaskan telcos on the agency's two pending Connect America Fund items targeting the state, his spokesman emailed us. He was responding to our query after the FCC didn't act on two draft Alaska CAF orders by June 30 despite commission assurances to Sullivan it would act in Q2 (see 1607010060). One draft order would address a telco "Alaska Plan" proposal to provide CAF broadband support to rate-of-return carriers and wireless competitors, and another would address certain price-cap CAF Phase II broadband issues. The commission "continues to work through concerns" with the rate-of-return/wireless draft order "and we are hopeful they will come to a solution soon," said the spokesman Friday. Price-cap incumbent Alaska Communications (ACS) objected to the Alaska Plan's $100 million in proposed annual support for wireless competitors, particularly General Communications (see 1604190012). In a recent filing in docket 10-90, ACS suggested the commission provide additional support for terrestrial middle-mile facilities if wireless needs greater backhaul to meet a CAF 10/1 Mbps broadband speed requirement.

Parties seeking to participate in a potential judicial lottery to determine court venue -- when challenges to an FCC order are filed in different courts -- must begin emailing their petitions for review to the commission under a new rule taking effect July 25, the Office of General Counsel said in a public notice Tuesday (see 1606230027). The PN said parties must file such petitions in a proper federal appellate court and email the FCC an electronic copy, both within 10 days of issuance of the challenged order. "If you have a paper, date-stamped copy of your petition, you must scan or otherwise convert it to electronic form in order to transmit it by email. The Office of General Counsel must receive the emailed copy of your petitions for review by 5:30 p.m. Eastern Time on the tenth day of the filing period," it said. Parties challenging an FCC order that don't seek to participate in a potential judicial lottery aren't required to serve notice to the commission. "However, in the interest of administrative efficiency, the Commission requests that such a petitioner nevertheless serve a copy of its petition on the FCC Office of General Counsel. Parties are encouraged (but not required) to serve such notice by email," the PN said. Parties that appeal certain FCC licensing-related actions under 47 U.S. Code Section 402(b) are required to give the commission notice. "The Commission has authorized and encourages litigants to provide such notice by email," it said.

Wisconsin and other states asked a court to vacate part of the FCC Lifeline order that extends USF low-income subsidies to broadband service, sets an annual budget of $2.25 billion and streamlines the program's administration (see 1603310056). "The States seek review of the Order’s creation of a new, federal Eligible Telecommunications Carriers (ETC) designation process and its asserted preemption of the State commissions’ primary authority to designate ETCs with respect to broadband services," said a state petition (in Pacer) to the U.S. Court of Appeals for the D.C. Circuit Thursday (State of Wisconsin, et al., v. FCC, No. 16-1219). "The States seek review on the grounds that this part of the Order exceeds the Commission’s jurisdiction or authority, violates the Communications Act of 1934 and the notice-and-comment requirements of the Administrative Procedure Act, and is arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. The States request that this Court hold unlawful, vacate, enjoin, and set aside this part of the Order." Joining Wisconsin were Arkansas, Idaho, Indiana, Michigan, Montana, Nebraska, South Dakota and Utah, plus the state regulatory commissions of Connecticut, Mississippi and Vermont. NARUC recently also challenged the FCC's new federal broadband ETC mechanism (see 1606030053). The FCC didn't comment Friday.

Upfront payments, the refundable down payments that applicants must make to establish bidding eligibility for the TV incentive auction, were due at the FCC Friday, said the leaders of the Incentive Auction Task Force in a blog post: “The next step in this stage is to prepare bidders for their chance to acquire the 100 MHz of licensed spectrum in the forward auction." Once the FCC validates which applicants have made payments, “we will release a list of qualified bidders in mid-July,” said Chairman Gary Epstein and Vice Chairman Howard Symons in the post. “Shortly we will release a user guide for the forward auction bidding system and an online tutorial,” they wrote Friday. Expect an “extensive bidder training program,” including the FCC’s first “practice auction” and a mock auction just before the bidding rounds begin. “After the mock auction concludes, clock bidding will begin,” they said. “Like the reverse auction, each round will offer bidders an incremental change in price for the licenses on which they’re bidding.” If the forward auction proceeds are high enough to satisfy the “final stage rule,” then “the auction can close at the current clearing target,” they said. “If not, then the auction is designed to run additional stages to match supply and demand.” The FCC is offering “the largest possible nationwide supply of low-band spectrum available to them, and this summer they will have the opportunity to bid on it,” the officials said. The commission said last week that broadcasters would get $86 billion if all their bids were accepted by wireless carriers (see 1606290081). Stations didn't drive up prices, NAB said on its blog Thursday (see 1607010050).

The FCC Technological Advisory Council will next meet Sept. 20 at the agency's HQ, said a commission public notice. “The TAC is helping the Commission to continue the momentum spurred by the National Broadband Plan to maximize the use of broadband to advance national interests and create jobs.” The meeting is to start at 12:30 p.m. in the Commission Meeting Room.

The FCC Wireless Bureau granted Amtrak’s request for permanent authority to operate 66 wireless radio base stations to implement a congressionally mandated positive train control (PTC) system. Amtrak had been relying on a grant of special temporary authority to operate the base stations, which are located on the southern portion of Amtrak’s Northeast Corridor, the bureau said Thursday. The waiver covers stations on Amtrak’s line from New York to Washington and on a branch line from Philadelphia to Harrisburg, Pennsylvania, the bureau said. Amtrak is using automated maritime telecom system spectrum, the bureau said. The order requires Amtrak to protect nearby broadcast stations, using channels 10 and 13, from interference. Amtrak said in a recent report that “since it began testing its PTC base stations -- initially in July 2015 at transmitter output power levels ranging from 5 to 20 watts, and beginning in December 2015 at power levels up to 25 watts -- it has not received a single report of interference from either television viewers or broadcasters,” the bureau said. Some have said a deadly crash outside of Philadelphia could have been prevented had PTC been deployed on the section of track where the accident occurred (see 1506100037). Congress required Amtrak, and many commuter and freight railroads, to deploy interoperable PTC systems as part of the Rail Safety Improvement Act of 2008.

Neustar urged the FCC to act on its show-cause motion against Telcordia despite an FBI letter saying it had no objections to Telcordia becoming local number portability administrator. Neustar, the LNPA incumbent, said the FBI letter didn't address its motion asking why Ericsson-owned Telcordia shouldn't be disqualified from serving as LNPA (see 1606020050). "Although the FBI's letter narrowly focuses on the services provided to the law enforcement community, it fails to address Ericsson's misrepresentations or misconduct," said Neustar in a Thursday filing in docket 09-109. "The facts that have been revealed indicate that Ericsson misled the Commission and violated national security requirements set forth in the Selection Order." Separately, the LNP Alliance fired back at a Telcordia (iconectiv) letter criticizing the group and New America's Open Technology Institute (see 1606230048). "The iconectiv Letter -- in the most preachy and pedantic tone -- implies that the LNP Alliance and other concerned parties are 'spooked' because they don’t understand the simplest, basic details of the LNPA Transition," said an LNP Alliance response. "In fact, the LNP Alliance’s acute concern with the LNPA Transition emanates from decades of experience with the manner in which even the most routine telecom process changes have so often become a pretext for large carriers to engage in anticompetitive and anticonsumer mischief. Whether changes to ordering, provisioning, billing or porting processes, large carriers have routinely taken advantage of process changes to shake loose hard-earned customers and increase competitive pressure on new entrants. The LNPA Transition has all the earmarks of the worst of such transitions -- poor transparency, a process controlled by nine (9) of the nation’s largest carriers, and de minimis oversight by regulatory authorities, including no state oversight role whatsoever. The iconectiv letter addresses a series of straw man issues never raised by the LNP Alliance, and neglects to address the principal issues it has raised, while unfairly maligning the integrity of the consumer groups that have duly weighed in on this issue." Telcordia didn't comment Thursday. Wednesday, North American Portability Management filed its monthly update on the LNPA transition.

TiVo had harsh words for a pay-TV set-top box proposal offered as an alternative to the FCC unlock-the-box plan, while NTCA expressed caution, in separate lobbying meetings disclosed this week in docket 16-42. The pay-TV plan would “deprive consumers” of features they already have under CableCARD and offer less choice than the FCC plan, TiVo said in a meeting Thursday with staff from the offices of Commissioner Jessica Rosenworcel and Chairman Tom Wheeler and to Chief Technologist Scott Jordan. The pay-TV plan doesn't allow third parties to offer competitive user interfaces, home recording, or in-home streaming of content, TiVo said. The proposal also would require third-party box makers to make deals with every pay-TV carrier, “a difficult if not impossible task for retail manufacturers,” TiVo said. The company said it's “not wedded” to any particular approach to creating a competitive retail set-top market. NTCA also discussed the pay-TV proposal in a meeting with an aide to Commissioner Mike O'Rielly Monday, saying the compromise plan is “not a silver bullet.” Both the FCC and pay-TV plan would raise costs for small cable operators, and the agency should exempt them from any rules, NTCA said.

Citizens Against Government Waste said FCC ISP privacy rules should be harmonized with FTC privacy rules. Early reply comments are starting to hit the FCC (see 1606280075), even though the agency pushed back the due date until July 6. They were initially due Monday. “Rather than follow the proven standard set by the FTC, the NPRM would reinvent the wheel, which will create an uncertain and confusing framework,” CAGW said. “Activist groups pushing for heavy-handed, public utility-styled Internet privacy regulations cry that FTC enforcement of Internet privacy -- one which has successfully guided the Internet’s development for ISPs and edge companies these past two decades -- no longer works,” Media Freedom said. “For ISPs, that is. For companies like Google and Facebook -- the most dominant and inescapable data Hoovers on the Internet -- FTC enforcement remains OK.” Sound privacy rules depend on protecting data privacy, the International Association of Privacy Professionals IAPP commented. IAPP said training is one answer: “Many incidents warranting breach notification do not occur from third party malicious attacks, phishing schemes, or other external forces. Customer privacy and security may be violated by careless data handling practices, including accidental or inappropriate email attachments, lost devices with unencrypted personal information, products and services that needlessly gather and leak personal information, improper record retention and destruction policies, and the like.” The comments were filed in docket 16-106. The FCC has logged 208,591 comments, most very short, in the docket in the past 30 days.