On Oct. 27, 2015, the stage was set for the much-scrutinized court hearing on FCC net neutrality rules and broadband reclassification under Title II of the Communications Act. That day, the U.S. Court of Appeals for the D.C. Circuit identified judges in the case as David Tatel and Sri Srinivasan, both Democratic appointees, and Senior Judge Stephen Williams, a Republican appointee. As Communications Daily first reported Oct. 28, Tatel was the most-watched judge in the case (see 1510280052). This Part III of our Special Report on net neutrality explores the hearing and continuing legal challenges. Part I was on the rules themselves (see 1609150017) and Part II on pleadings to the court that led up to Dec. 4, 2015, oral argument (see 1609230009). Part IV is on the court's eventual decision (see 1610210015).
Even before the FCC released its net neutrality rules on March 12, 2015, ISP interests signaled they would take the agency to court. The likes of CTIA and NCTA predicted lawsuits, as reported in Part I of this Special Report (see 1609150017). Even FCC officials predicted such suits -- accurately, as it turned out. This Part II focuses on how litigation came to pass. Part III reports how the commission won an initial court case (see 1610130014).
Trump transition team member Mark Jamison said the FCC is no longer needed, at least as presently constituted, and suggested the commission should be downsized and refocused on a core spectrum management mission, with many of its current functions turned over to other federal and state agencies. "Most of the original motivations for having an FCC have gone away," he wrote in an Oct. 21 commentary. But Jamison, director of the University of Florida's Public Utility Research Center, more recently lauded FCC chairmen of both political parties for providing strong and effective leadership that resists political pressures and preserves the agency's independence.
The FCC plans to consider real-time text and emergency alert system items and possibly others at its Dec. 15 commissioners' meeting, said the tentative agenda released Tuesday. Both the RTT and EAS items consist of a combined draft order and Further NPRM. The items circulated Tuesday, a commission official told us. The tentative agenda is due 21 days before a meeting, but was released early because of Thanksgiving on Thursday.
The GOP election victory is seen as complicating FCC action on business data services near term and putting the commission's broadband net neutrality policy in serious doubt for next year. The FCC Thursday put a BDS item on the agenda for commissioners' Nov. 17 meeting, and while it could still be withdrawn, several agency and industry officials told us Thursday they thought the commission would adopt the item. It nevertheless could still get gummed up in post-vote procedural steps that leave it vulnerable when President-elect Donald Trump takes power, and a new Republican-run FCC could always change course, they said.
As the FCC considers rules on how multichannel video programming distributors (MVPD) deal with independent programmers, one issue remains how to define an independent programmer. Multiple cable lawyers told us the proceeding, which some expect to get more active once the FCC finishes more high-profile agenda items affecting the cable industry, potentially could see some major programmers trying to argue they fall into that indie category. Meanwhile, AT&T's proposed $108.7 billion buy of Time Warner could help spur the FCC into adopting the rules in the indie programming NPRM adopted in September (see 1609290036), given worries that AT&T -- owning its own programming content -- would have incentives to discriminate against other programmers, multiple cable lawyers said. Some speculated the FCC, if not part of any regulatory review of the deal, might look at rulemakings on issues like program access or program carriage to try to ensure a competitive marketplace (see 1610260022).
Commissioners approved ISP privacy rules Thursday in a party-line FCC vote, as expected, largely as proposed by Chairman Tom Wheeler (see 1610260065). ISPs lost in their attempts to get the agency to drop a plan to classify web browsing and application use history as sensitive data, requiring opt-in consent. Commissioner Mignon Clyburn was unsuccessful in her push for restrictions on ISPs inserting mandatory arbitration clauses in service contracts, though the majority did commit to seeking comment on that issue in early 2017.
A big gray area in AT&T's proposed buy of Time Warner is whether the FCC will have a direct role in regulatory oversight of the $108.7 billion takeover (see 1610210043), but some observers said TW has commission licenses beyond just that for its sole TV station. Our review of International Bureau filings show TW has earth satellite stations for its CNN operations (for example, here and here). A lawyer with cable clients and deal experience said it's highly unlikely the FCC would have no role since CNN and other TW subsidiaries such as HBO and Turner probably have commission licenses.
Charter Communications and T-Mobile were among those spending much more on lobbying in Q3 than a year earlier. Charter's lobbying expense was $1.99 million, vs. $980,000. Charter successfully acquired Time Warner Cable and Bright House Networks in the interim. T-Mobile spent $2.17 million, up from $1.4 million.
Sen. Ed Markey, D-Mass., joined public interest and consumer groups Thursday as expected (see 1610170062) in encouraging the FCC to adopt strong rules for ISP privacy, set for a vote at the Oct. 27 commissioner meeting. Meanwhile, government and industry officials told us, the provisions on how and when ISPs are allowed to offer broadband at a lower cost to consumers willing to give up some privacy protections are emerging as a big issue, but one that has gotten little attention. The FCC released its sunshine notice for next Thursday's meeting, which includes the privacy order. Business data service rules that are also on circulation didn't make the cut, as was expected (see 1610200047).