AT&T's goal on special access is to delay FCC action that would "check monopolistic tendencies" of incumbent telcos, Incompas CEO Chip Pickering said Thursday. "In an act of desperation, AT&T is claiming that the FCC doesn’t have sufficient information to act  --  even though it has just completed the largest data collection ever undertaken by the FCC in any proceeding," he said in a blog post. "With data in hand, now is the time for the Commission to act promptly to address this broken market. Finally ending monopoly pricing, and eliminating punishing terms and conditions, which are locking up customers and locking out competition." The FCC could issue a Further NPRM in April or May in its broad special access rulemaking and an order in its ILEC tariff investigation (see 1603210048). Pickering said AT&T "likes to take a helicopter view of the market" that looks at competition by census block. "But let me ask you, when was the last time someone said, 'I work in a census block?' Never," he said. "That is because real people work in buildings  --  school buildings, hospital buildings, and fire station buildings." Pickering said ILECs have connections to virtually every commercial location in their monopoly-derived territories. "They are the only provider of special access services to the vast majority of these locations. That’s market power," he said. Pickering dismissed AT&T's suggestion that competitors don't need reasonably priced last-mile access to ILEC special access facilities. "If building to locations was as easy as the incumbents claim, why haven’t they (with hundreds of billions more resources than any competitor) built much, if at all, outside their incumbent regions?" he said. Pickering questioned AT&T arguments that cable provides "fierce competition" to ILEC special access services. "In reality, most cable services are not special access services (i.e., dedicated services)," he said. "Nonetheless, NCTA’s special access filing only demonstrates the ineffectiveness of a duopoly. It asserts more competition would be bad because it would force providers to improve service and lower prices ….um, YES, that is exactly what competitive market forces are intended to do." He called on the FCC to "address the abuse of market power," including over ethernet services, and voiced hope it would do so under Chairman Tom Wheeler, "who's been consistent in his efforts to promote and preserve competition."

Commissioner Ajit Pai seemed to welcome a court stay temporarily blocking the FCC's attempted application of interim rate caps to intrastate inmate calling services (see 1603230058), which he suggested sent a broader message. "The ruling comes on the heels of the latest judicial reversal of the FCC in this proceeding," Pai said in a statement Thursday. "Just two weeks ago, that same court stayed the rate regulations that the agency sought to impose on inmate calling services. Nonetheless, the Commission issued a Public Notice claiming that these regulations -- and specifically, their application to intrastate rates -- would take effect anyway. The court’s decision yesterday cut this end-run short." The PN had said that interim 2013 rate caps applied to intrastate ICS because the court in its previous stay had not blocked the FCC's 2015 removal of the word "interstate" from the ICS definition. But a panel of the U.S. Court of Appeals for the D.C. Circuit stayed the cap's application to intrastate ICS rates, with two Republican appointees -- Judges Karen Henderson and Brett Kavanaugh -- in support and Democratic appointee Judge Patricia Millett in opposition. Pai also said the stay was part of a broader pattern of legal and political reversals the commission should take to heart. "Over the past three weeks alone, the FCC’s decisions have been rebuffed three times in court; rejected in extraordinary fashion by a large, bipartisan group of Senators; and rebuked sharply by Members of the House from both parties," he said. "At some point, even this agency has to acknowledge that the law isn't an invitation to semantic chicanery and good government isn’t discretionary."

Only 691 of the 4,487 buildings served by XO Communications that Verizon would gain new access to will be in the Bell's remaining ILEC footprint (after it completes a three-state system sale to Frontier Communications), the companies told the FCC Tuesday, supplementing their application to transfer XO licenses to Verizon (see 1603070041). "The proposed transaction will benefit the public interest without any material adverse harm to customers or competition," they said in a filing responding to questions from commission staff. Of the 691 buildings, 537 are served by at least one other CLEC or cable company, based on available information, they said, noting there could be other buildings served by telco and cable competitors whose information isn't readily available. Of the 154 other XO on-net buildings in Verizon's remaining ILEC footprint, 136 are within one-tenth of a mile of the fiber of another CLEC or a cable-lit building, they said, noting other providers include Cablevision, Cogent, Comcast, Level 3 and Zayo. Almost 85 percent of the XO on-net buildings aren't in Verizon's remaining ILEC footprint, and of those 3,796 buildings, 3,303 don't have Verizon plant in them, the companies said. Of the 493 with Verizon plant, 440 are lit by another CLEC or cable company and 41 are within one-tenth of a mile of another CLEC's fiber, they said. Frost and Sullivan analysts estimated Verizon's national market share of the business/enterprise ethernet market declined from 22.5 percent in 2013 to 19.6 percent in 2014, while XO's market share was "between 0.5 and 2 percent," the companies said. Frost and Sullivan estimated Verizon has about 28.3 percent of the wholesale ethernet market and XO has about 3.9 percent. They said XO Holdings' subsidiary NextLink Wireless isn't being transferred with XO Communications to Verizon and will remain an independent wireless-based provider.

The 5th U.S. Circuit Court of Appeals seemingly deviated from the guidelines it set in its 1988 Coghlan v. Starkey decision for finding of frivolousness, as well as the summary judgment guidelines the Supreme Court established in its Anderson v. Liberty Lobby decision in 1986, in shooting down his appeal in his lawsuit against Dish Network, said Texas lawyer/plaintiff Larry Polsky in a petition for rehearing en banc Tuesday. The 5th Circuit earlier this month upheld a previous U.S. District Court in Houston summary judgment tossing out Polsky's consumer complaint against Dish, calling his claims frivolous (see 1603030026). In his petition, Polsky said his complaint "involves an important question of law that is of first impression in this Circuit and to every other state and federal court in the United States of America" -- namely, whether an ISP has a duty to disclose to consumers that their Internet service is split among two periods of the day, and usage in one of those periods is not monitored. The 5th Circuit panel in its March decision ignored arguments on Dish's supposed fraud by omission and that its supposedly being "too busy" to monitor gigabyte usage from 2 to 8 a.m., which was cited in the initial summary judgment, isn't something Dish ever asserted, Polsky said.

The FCC shouldn't simply award subsidies to the lowest bid in a reverse auction for broadband-oriented Connect America Fund Phase II support, said nine southwestern Michigan state legislators in a letter Tuesday in docket 10-90. The commission should encourage "prudent investments that stand the test of time" not "investments in substandard technologies with a short shelf life," they said. A "tiered or weighted auction" is needed to help ensure the best technologies are advanced, they said. "By focusing on future proof technologies, the FCC could advance beyond ongoing subsidies and instead invest once in scalable networks. This would free up capital for projects across America that ensure speeds and capabilities that stretch far beyond the modest rural standard of 10 Mbps download and 1 Mbps upload." The legislators said CAF II could stimulate competition from rural electric cooperatives and other nontraditional providers, which are deploying gigabit-capable networks. Officials from Midwest Energy Cooperative, Ozarks Electric Cooperative and the Utilities Telecom Council suggested the FCC adopt certain auction criteria, according to a UTC filing on a meeting they had with an aide to Commissioner Mike O'Rielly. "We explained that we support minimum eligibility requirements and that the criteria for the reverse auction should set the bar high so that the Commission is funding future-proof broadband networks that would promote economic growth, better education and improved health care in rural unserved communities," said the filing. It also urged the FCC to fund broadband networks that promote E-rate school and library support, mobile wireless and other commission priorities. UTC, joined by the National Rural Electric Cooperative and NTCA, recently urged the FCC to adopt a minimum initial speed requirement of 25/3 Mbps (down/up), with networks capable of providing 100/25 Mbps, having no more than 100 milliseconds of latency and at least a 100 GB monthly usage allowance. They said they were concerned that criteria proposed by Hughes Network Systems and others "would water down the minimum requirements," leaving rural consumers with broadband access that's not reasonably comparable to urban broadband, a statutory mandate.

Gigi Sohn, counselor to FCC Chairman Tom Wheeler, attempted to address concerns that have been expressed about the commission's Lifeline USF proposals to extend low-income support to broadband service and streamline program administration. Mobile voice would continue to be a Lifeline-supported service, but under a draft order it would have to be bundled with broadband after Dec. 1, 2019, she said Wednesday at New America's Open Technology Institute. "To give Lifeline providers time to adjust, we will phase down support for stand-alone mobile voice over a multi-year period. We plan to eliminate the subsidy for stand-alone mobile voice starting on December 1, 2019, although the Commission will examine the market in mid-2019 to determine whether there needs to be an adjustment," she said in prepared remarks. "We believe that three years will be enough time for the market to adapt and for promising technologies to develop, and that by the end of 2019, there will be affordable bundled mobile voice and data plans that meet, and hopefully exceed, Lifeline’s minimum service standards." But if the FCC is wrong, she said, it "has a safety valve by which it can examine how the market has evolved between now and 2019, and preserve a subsidy for stand-alone mobile voice if it’s deemed necessary." Minimum service standards for voice and data are needed to ensure Lifeline users aren't stuck with "second-class service," while ensuring service is still affordable, she said. Sohn also said state commissions will continue to play a "critical role" in Lifeline, despite an optional new path for broadband providers to be certified to receive support nationally. Providers would still be able to go to the states for Lifeline approval state by state. California approval will be necessary to receive a sizable state Lifeline subsidy there, she said. The FCC proposed a Lifeline budget of $2.25 billion, indexed to inflation, which is enough to allow some growth. While the agency expects some growth due to the broadband coverage, "we don't expect it to be precipitous," she said. Sohn said if Lifeline spending reaches 90 percent of the budget, the Wireline Bureau must notify the commission and prepare an analysis of the causes of the spending growth, "followed by Commission action within six months." That creates another "safety valve," Sohn said. Monday, other senior FCC officials used the agency's blog to defend the proposal amid criticism from some carriers and others (see 1603220044).

Ligado's planned LTE network carries potential "serious and negative consequences" for AWS-3 spectrum use, SNR Wireless said Wednesday, urging the FCC to look into such problems before considering the former LightSquared's proposal. In a filing Wednesday in docket 12-340, SNR said Ligado's plans to relinquish its rights to use 1545-1555 MHz and to seek access to the 1675-1680 MHz band (see 1512310016) carry multiple interference issues for AWS-3 licensees like it. The designated entity which has been affiliated with Dish Network said interference issues include that the total amount of energy received at earth stations receiving signals from geostationary operational environmental satellites and polar-orbiting operational environmental satellites in the 1675-1710 MHz band will increase, and the Ligado-commissioned interference analysis doesn't look at the effect of licensed commercial AWS-3 uplink operations in 1695-1710 MHz. And the AWS-3 interference analysis done by the Commerce Spectrum Management Advisory Committee (CSMAC) didn't look at commercial downlink operations in 1675-1680 MHz, SNR said. The proximity of 1675-1680 MHz commercial downlink operations to 1695-1710 MHz commercial uplink operations heightens the likelihood of AWS-3 base station receiver overload or of out-of-band emissions causing base station interference, SNR said, adding that the FCC and AWS-3 auction bidders didn't contemplate those interference scenarios before the auction. The CSMAC process set up recommended protection distances around meteorological earth stations that commercial AWS-3 operators in the 1695-1710 band had to coordinate within, and Ligado's proposal -- by adding to the interference at federal users' earth stations -- would eat up some of the interference budget AWS-3 licensees have now, SNR said. "Ligado's proposal is therefore flawed because it will be impossible to allocate any interference budget amount to its proposed use without also 'stealing' interference budget from AWS-3 spectrum acquired at auction on the basis of an interference budget allocation that was codified in the FCC's rules." SNR said Ligado's LTE plan makes it tough to reconcile interference federal users see between AWS-3 operations and 1675-1680 MHz base station operations. In a statement Wednesday, Ligado said, "The communications industry routinely addresses spectrum coordination and co-existence issues, resolving them through the FCC process, standards bodies, and discussions between the various stakeholders. The issues raised occur frequently in spectrum discussions -- recent examples include bands affected by AWS-4. We look forward to a public comment process to discuss these types of issues with all affected stakeholders."

A court stayed FCC application of 2013 rate caps to intrastate inmate calling services. The interim 2013 rate caps had applied to interstate ICS rates, but the FCC said they extended to intrastate rates due to an ICS definitional change in a 2015 order. Securus and other ICS providers then asked the U.S. Court of Appeals for the D.C. Circuit to extend its previous stay of tougher 2015 rate caps to prevent the FCC from applying the 2013 rate caps to intrastate ICS, pending further judicial review. A three-judge panel of the court agreed Wednesday in a brief ruling shortly after a comment deadline (Global Tel*Link v. FCC, No. 15-1461).

The FCC library invited manufacturers and vendors to participate in its annual open house April 12 as part of National Library Week, said an agency public notice Tuesday with contact info for interested parties. "Of particular interest are smart phones, eBook readers, tablets, technology kiosks and library-specific applications solutions." The event, a partnership with the FCC Technology Experience Center, showcases how local, state, federal and academic libraries use digital technology "to provide 24/7 cyberspace access" to many devices, it said.

A glut of definitions for “rural” can complicate the process of applying for broadband grants and loans, federal officials acknowledged Monday. "The government doesn't make it easy by having some sort of universal definition," said NTIA External Affairs Director Aimee Meacham, moderating a panel on broadband financing at NTIA’s Digital Northwest regional broadband summit in Seattle (see 1603210049). Carol Mattey, deputy chief of the FCC Wireline Bureau, said: "There's more than 20 definitions of rural in federal funding programs. Even within the universal service funding programs themselves, we have different definitions for one program versus another, and it's very arcane." Keith Adams, Rural Utilities Service assistant administrator, noted differences in the definition of rural among programs at RUS. While “traditional” RUS programs define rural as communities with 5,000 or fewer people, the Farm Bill Broadband Loan Program defines rural as communities with 20,000 people or fewer, he said.