The Justice Department asked the U.S. Court of Appeals for the D.C. Circuit to stay a ruling by U.S. District Judge Richard Leon, who last week ordered the NSA to stop collecting the call records of attorney J.J. Little and his law firm (see 1511090049). "Given that the government’s bulk collection of telephony metadata under Section 215 will terminate in less than two weeks, thereby mooting plaintiffs’ claims for injunctive relief and the injunction entered by the district court, this court should stay the district court’s injunction pending appeal, the Monday DOJ filing said. Little and his law firm were two of the five plaintiffs in Klayman v. Obama that are seeking to end the government's spying program, saying it's unconstitutional. The government will shift to a new program on Nov. 29 but wants to continue the current telephony metadata collection until then.

The FCC and the FTC released a memorandum of understanding on their respective roles in protecting consumers in the communications sector. Both agencies posted the MOU on their websites Monday. “The memorandum is designed to formalize the existing cooperation between the agencies, outlining how the FTC and FCC will coordinate consumer protection efforts,” the FTC said in a statement. The agencies said they have had a similar MOU in place on telemarketing enforcement issues since 2003. “The FCC and the FTC will continue to work together to protect consumers from acts and practices that are deceptive, unfair, unjust and/or unreasonable,” the MOU said. They agreed to regular meetings to review current marketplace practices and their observations on the “evolution of communications markets.” The agencies committed to “coordination on agency initiatives where one agency’s action will have a significant effect on the other agency’s authority or programs” and “consultation on investigations or actions that implicate the jurisdiction of the other agency.”

USTelecom filed a legal challenge to the FCC IP technology transition decisions adopted in August that were intended to safeguard competition and consumers as telcos switch from copper-based traditional services to IP-based services over fiber networks (see 1508060044). USTelecom filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit (USTelecom v. FCC, No. 15-1414) against FCC orders that grew out of a 2014 FCC NPRM, declaratory ruling and subsequent USTelecom petition for reconsideration. "In the Order and Order on Reconsideration, the Commission not only denied USTelecom's petition for reconsideration of the Declaratory Ruling, but also took a number of final actions in the rulemaking it initiated in the Notice, including: adopting new rules governing the retirement of copper facilities; declaring that a carrier must seek Commission approval under § 214(a) if a change in its service will cause a wholesale customer of that carrier to discontinue, reduce, or impair its own retail service offerings; and adopting a new rule under which it will condition its approval of § 214(a) applications for certain services on the applicant's provision of a reasonably comparable, wholesale Internet Protocol service, on reasonably comparable rates, terms, and conditions," USTelecom said. Incompas General Counsel Angie Kronenberg emailed us Monday: “First, the Bells tried lobbyists. Now they will try the lawyers, but they cannot fight the future. Competition is the answer, and it’s driving new networks.” Public Knowledge Senior Vice President Harold Feld emailed us: "This is not unexpected. USTA and its members have made their opposition to the FCC's order fairly clear. We believe the FCC acted entirely within the scope of its authority and in a manner reasonably calculated to protect and advance the pro-consumer and pro-competition goals of the Act -- and that the court will ultimately affirm the Commission." FCC spokesmen had no immediate comment.

Larry Klayman, chairman of Freedom Watch, requested oral argument from the U.S. Court of Appeals for the D.C. Circuit after the court granted an administrative stay to the U.S. government of last week's ruling by U.S. District Judge Richard Leon. He had ordered the NSA to stop collecting the call records of attorney J.J. Little and his law firm (see 1511090049). They were two of the five plaintiffs in Klayman v. Obama. "Appellants cannot -- and should not be able to -- rely on the failed argument that it may be burdensome to avoid obeying the Constitution," wrote Klayman in his appeal.

Correction: Counselor to FCC Chairman Tom Wheeler Gigi Sohn was responding to a fellow panelist's comment when she addressed divisiveness at the FCC, which she said used to occur between members of the same political party (see 1511120043).

The FCC's February decision to reclassify broadband as a common carrier service was purely political and ignored how well the Internet has done under light-handed regulation, FCC Commissioner Ajit Pai said Thursday in a speech to the Bill of Rights Institute’s Kansas Public Lecture in Wichita. ISPs are already spending billions of dollars less on their networks due to the new rules, he said in his remarks posted by the FCC Friday. The dynamic of what the FCC did can be simply stated, Pai said. “It means regulating broadband like the Ma Bell telephone monopoly of the 20th century or the railroads of the 19th century,” he said. “It means subjecting Internet service providers to pervasive public-utility regulation. It means putting the federal government at the center of the digital world.” The FCC’s moves on net neutrality are part of a broader administration agenda, Pai said. “It was about government control,” he said. Most people would celebrate a free-market approach to the Internet, he said. “But some disagree. They disdain a free-market approach to the Internet because they believe that every major sector of our economy should be subject to extensive government regulation. And in particular, they believe that the Internet is too big and too important not to be subject to government control.” Pai said when the FCC imposes rules on ISPs, it risks stifling investment in networks. “Broadband networks don’t have to be built,” he said. “Capital doesn’t have to be invested. Risks don’t have to be taken.” The evidence already shows lower investment, he said. “During the first six months of 2015, there was an 8 percent decrease in major U.S. broadband providers’ capital expenditures,” he said. “And numerous smaller broadband providers told the FCC earlier this year under penalty of perjury that the agency’s regulations were leading them to cut back on infrastructure investment and broadband deployment.” The rules can still reversed by a later FCC, Pai assured the audience. “I am still optimistic that these regulations’ days are numbered,” he said. “The longer that these rules are in effect, the clearer it will become that these regulations are harming competition and consumers.” Pai said his parents, who live in a small town in Kansas, have a “healthy skepticism of government.” He joked that when he got the call to be a commissioner three years ago his mother had questions. “Was being an FCC Commissioner a full-time job? Did it pay? If it didn’t work out, could I go back to being a partner at my law firm?” he said. “Thankfully, after more than three years as a commissioner, my mother is confident I won’t be moving back into my old room.”

The FCC delayed the short-form application window for the incentive auction, giving prospective auction participants extra time to sign up, said a public notice released Thursday. The window for filing a reverse auction application -- Form 177 -- will now open at noon EST Dec. 8, and close at 6 p.m. EST Jan. 12. The window for Form 175, the forward auction application, is from noon EST Jan. 26 to 6 p.m. EST Feb. 9. The reason for the extension is the release of revised opening bid numbers, the PN said. Though the FCC released opening bids for all broadcasters a few weeks ago (see 1510160065), those numbers have had to be recalculated, the PN said. Since the auction order requires broadcasters to have 60 days notice of their opening bids before the deadline for participating, the window had to be moved when those prices changed, the PN said. The revised price numbers “correct a handful of files” for accuracy, the PN said. “For 99 percent of stations, the change to the opening bid prices using the corrected data is minimal -- less than one percent.” One station, WNJU Linden, New Jersey, had its information changed because it changed locations to One World Trade Center in New York, making it the highest-priced station in the auction, displacing WCBS in that role. WCBS' opening price in the auction dropped from $900,000,000 to $888,687,000 as a result of the change, according to the PN. The changed application date won't cause other delays in the auction, an FCC official told us. The changed window doesn't affect other auction processes, and the original auction schedule was created with enough cushion to allow for such adjustments, an FCC official told us.

The FCC Wireline Bureau released broadband deployment data collected from both fixed and mobile providers on Form 477. This is the first time the commission has released the Form 477 data, which covers deployment as of Dec. 31, said a public notice in Thursday's Daily Digest. NTIA has collected and made available broadband deployment data.

Speakers mostly debated the historical backdrop of communications law at a panel hosted by The Federalist Society Thursday on broadband regulation and the net neutrality litigation. Gibson Dunn attorney Miguel Estrada -- who represents NCTA, which is challenging the FCC's net neutrality order -- said the Supreme Court's 2005 Brand X ruling, which upheld the FCC's discretion to classify cable modem service as a Title I information service, focused on “last mile” broadband. But he said the current FCC's 2015 classification of broadband Internet access service as a Title II telecom service could have regulatory implications for the “entire Internet.” Essentially, the FCC was regulating the Internet under “public utility-style” common carrier regulation from the 1934 Communications Act's Title II, which was derived from “19th century” railroad regulation, he said. AT&T Senior Vice President Bob Quinn said congressional intent in the 1996 Telecom Act clearly was that Internet access was an information service. He said all nine justices in the Brand X cable broadband ruling agreed that was the case, but three dissenting justices, led by Antonin Scalia, believed there was also a telecom service that had to be offered separately from the integrated cable broadband information service. Eckert Seamans attorney Earl Comstock, who worked on the 1996 Telecom Act as a Senate staffer, said broadband industry providers were pushing a “tremendous mythology” that deviated from the Telecom Act definitions, which he said didn't make telecom and information services mutually exclusive. The FCC's broadband classifications as an information service in the early 2000s turned its 1980 “Computer II” decision on its head by finding Internet access was not common carriage, a shift that “crushed” the plethora of non-facilities-based ISPs that had existed to that point, said Comstock. He represents Full Service Network, which argues that broadband access is a telecom service and that the FCC shouldn't have given broadband providers so much forbearance relief. Roslyn Layton, a visiting fellow at the American Enterprise Institute, disputed the FCC's finding that net neutrality protections were needed to preserve a virtuous cycle of broadband Internet growth and innovation. Estrada said he didn't believe the discretion the Supreme Court showed the previous FCC in Brand X helped the current FCC's case much. Quinn said the 2005 case was different because the question then was whether there were two distinct cable broadband services: an information service and a telecom service.

The FCC should impose conditions on the Charter/Time Warner Cable and Bright House Networks deal “to protect against competitive harm,” said USTelecom in comments filed with the FCC and in a statement from USTelecom President Walter McCormick. Since cable companies don’t face the same regulatory constraints as telephone companies do, USTelecom’s member companies are concerned that the deal will concentrate too much control over video programming in the hands of a consolidated cable industry, McCormick said. “Outdated regulations direct telephone company resources and investments away from new broadband services and infrastructure, and into outmoded legacy networks and services, thus inhibiting the ability of these companies to compete,” he said. The FCC should “level the playing field” and “impose conditions that would prohibit the merged entity from giving undue preferences to other cable companies, or to disadvantage competing broadband and video providers,” USTelecom said.