Both an FCC commissioner and critics of the agency's approval Thursday of a local franchise authority (LFA) order anticipate its being challenged in court. Commissioner Geoffrey Starks, who along with Commissioner Jessica Rosenworcel dissented in the 3-2 vote, said he has "no doubt" about litigation. Emailed NATOA General Counsel Nancy Werner, "There will be litigation over the final order."
The Pennsylvania Public Utility Commission split 3-2 Thursday to adopt a policy statement clarifying that special access and other jurisdictionally mixed telecom service providers that report zero gross intrastate revenue, or report gross intrastate revenue from other intrastate services but not special access, are subject to an annual fiscal assessment to cover PUC operational costs (see 1905020023). Verizon, cable and other industry say federal law pre-empts the PUC statement in docket M-2018-3004578 (see 1904170059). The PUC adopted two related enforcement matters, with commissioners voting 3-2 for a motion in docket M-2019-3010251 to tentatively cancel certificates of public convenience for telecom utilities reporting zero intrastate operating revenue for multiple years, and 5-0 for an item in docket M-2019-3011090 to cancel certificates for telecom utilities that failed to file annual intrastate revenue reports for multiple years. The policy statement and related actions are meant to “clean up the telecom space,” and “make sure that all carriers are paying their fair share,” said Commissioner Norman Kennard at the livestreamed meeting. Chairman Gladys Brown Dutrieuille and Commissioner Andrew Place dissented from the policy statement and the first decertification item. Place shares the providers’ legal and technical concerns with the policy statement, and thinks the matter should be further studied and handled through a “collaborative process” or legislation, he said. Adopting it “will inevitably lead to a conflict with the FCC’s applicable jurisdictional separations rules,” and litigation, he said. Brown Dutrieuille questioned PUC procedure: “I am concerned that we are not considering other approaches and have not chosen to pursue a rulemaking.” Place said the 3-2 “decertification action against competitive carriers that affirmatively invoke or utilize the FCC’s long-standing ten percent contamination rule and do not report intrastate operating revenue to this Commission is plainly wrong. This action does not afford appropriate due process to the affected carriers, it is unfairly discriminatory because it singles out only competitive carriers that invoke or use” the 10 percent rule, “and violates federal law and regulations.” The action might violate a state court stay on the PUC’s 2017 decision that distributed antenna systems aren't utilities requiring state certification under state law (see 1901040044), said Brown Dutrieuille. That case is pending in Pennsylvania Supreme Court. Commissioners can’t say DAS providers aren’t utilities “and then, in the middle of an appeal on that very issue,” revoke their certificates for failing to report intrastate revenue, she said. “A stay is a stay.”
The FCC’s Aug. 1 commissioners’ meeting will be headlined by proposed rulemakings on robocalls and the Rural Digital Opportunity Fund, per the tentative agenda and drafts released Thursday late afternoon. Members will vote on an NPRM on low-power FM technical rules, orders on 911 location and small satellites, plus items on a toll-free number auction and local franchising authority over cable.
Cable operators will lose rights in Washington, under pole-attachments rules proposed by the District of Columbia Public Service Commission, Comcast commented Monday in docket RM16-2019-01. The commission issued a rulemaking notice June 7 proposing to repeal and replace Chapter 16 of Title 15 of the D.C. Municipal Regulations on pole-attachment disputes between public utilities and cable operators. Comcast opposes removing pole attachments from rule sections for cable operator complaints and including them instead as facilities governed by new application rules, shifting the burden of showing need for access to the attacher from the pole owner. Proposed rules remove all references to PSC responsibility under D.C. law to ensure pole-attachment rates, terms and conditions are just and reasonable, and they would stop cable operators from filing complaints challenging rates, terms or conditions for access, Comcast said. The plan would broaden PSC regulatory authority from cable operators to a larger number of entities seeking to attach equipment, commented the D.C. Office of People’s Counsel. The plan simplifies complaint procedure and “expressly encourages” private talks to resolve disputes, OPC said. The office raised concerns about leaving out the term “pole attachment” from the proposal’s definitions: That's "a term of art with a particularized meaning; as such, its denotation needs to be expressly set forth in order to forestall disagreements/confusion -- some of which, though wholly avoidable, may require Commission intercession.”
The intensifying 2020 presidential race could affect FCC policymaking as the election gets much closer, industry and former officials told us, though they don’t all agree on what the effect will be. Some expect the agency and Chairman Ajit Pai to seek to avoid headline-grabbing rulemakings that create ammunition for President Donald Trump’s opponents. Others expect Pai to push his agenda to get policies approved while Republican control of the agency is certain.
The Maine Public Utilities Commission should prescribe new rates for pole attachments effective Jan. 1, based on the FCC cable rate formula, said a CLEC lawyer at a PUC rulemaking hearing in docket 2019-00028 livestreamed Wednesday. Consolidated Communications said Maine should keep its current Chapter 880 formula. Unknown RF danger is one reason to treat wireless attachments differently from pole attachments, the ILEC said.
With the FCC ending part-time leased access rules earlier this month, considering them contrary to the First Amendment (see 1906060029), media law and Constitution experts see potentially thorny questions emerging as it also considers whether its full-time requirements have similar problems. The agency could find itself in a particularly sticky situation if it decides the statutory requirement underlying its leased access rules seems to have a constitutional problem, said former FCC Deputy General Counsel Peter Karanjia.
The C-Band Alliance (CBA) is proposing a sealed-bid combinatorial second-price auction process for clearing 180 MHz of the 3.7-4.2 GHz band. The auction design -- now being discussed with the FCC -- is the last of the major components of its band-clearing plan put before the commission, the CBA told us Tuesday. That follows its transition (see 1904090067) and band plan.
FCC-proposed 2019 regulatory fee hikes aren't transparent and the agency didn't provide enough information about them to form a basis for substantive comments, said satellite carriers, 50 state broadcaster associations and Incompas in comments posted through Monday in docket 19-105 by Friday's comment deadline. Similar criticisms were raised by NAB and other broadcasters in earlier comments (see 1906070063).
The FCC is widely seen to be starting from behind in Tuesday’s oral argument in Prometheus IV. That doesn’t mean anyone is certain how the 3rd U.S. Circuit Court of Appeals will react to an incubator program, standing challenges against petitioners, and broadcaster arguments for further deregulation (see 1905220074), said many academics and broadcast attorneys in interviews last week.