A draft special access tariff order and Further NPRM are expected to circulate Thursday at the FCC for consideration at the agency's April 28 monthly meeting, informed sources told us Wednesday. The draft order flows from an FCC investigation of large incumbent telco tariff practices, and the FNPRM would propose a new regulatory framework, said one source, who said a delay is possible but unlikely. "We expect both items to be circulated" Thursday, said a telecom industry official. An industry attorney said there was some momentum for placing the items on the April meeting agenda, with slippage still possible.

Special access "overcharges" by major telcos have cost consumers over $150 billion in macroeconomic losses since 2010, said Mark Cooper, Consumer Federation of America research director, in a paper released Tuesday. The inflated charges are due to "premature" FCC deregulation of Bell dedicated circuits leased by competitors and business customers, said Cooper, who summarized his findings at an event hosted by New America's Open Technology Institute. AT&T said Cooper's report was based on outdated data, and it said more recent data showed the special access market is highly competitive where there is demand. Other ILECs didn't comment but some referred us to an economist who is skeptical of Cooper's estimate.

Special access "overcharges" by major telcos have cost consumers over $150 billion in macroeconomic losses since 2010, said Mark Cooper, Consumer Federation of America research director, in a paper released Tuesday. The inflated charges are due to "premature" FCC deregulation of Bell dedicated circuits leased by competitors and business customers, said Cooper, who summarized his findings at an event hosted by New America's Open Technology Institute. AT&T said Cooper's report was based on outdated data, and it said more recent data showed the special access market is highly competitive where there is demand. Other ILECs didn't comment but some referred us to an economist who is skeptical of Cooper's estimate.

Any leveling of the playing field between broadcasters and multichannel video programming distributors (MVPDs) needs to look beyond retransmission consent negotiation rules revision and "address holistically the constellation of rules that have led to today's grossly uneven playing field" that tilts in favor of major MVPDs, Sinclair Senior Vice President-Strategy and Policy Rebecca Hanson told FCC officials including Media Bureau Chief Bill Lake. MVPDs have pushed for the FCC to give them regulatory negotiating advantages as part of the agency's examination of the good-faith negotiation rules, but Sinclair said major MVPDs' claim that they need government intervention against far smaller broadcasters "cannot be justified under any fair policy rationale," according to an ex parte filing Tuesday in docket 15-216 recapping the meeting. MVPDs also have complained about broadcaster negotiation terms, but most such negotiations are successful without any blackouts, "proving that such negotiating terms do not result in 'negotiations breaking down,' which is what Congress asked the FCC to review," Sinclair said. Sinclair repeated its argument (see 1603160042) that nonmonetary deal terms offered by broadcasters in negotiations help keep the cash portions of such deals lower: "Thus if MVPDs are concerned about rising retransmission costs, they should not be asking the FCC to ban any non-monetary deal terms from negotiations." In a separate ex parte filing in the docket Tuesday, Networks for Competition and Choice Coalition (NCCC) members said new and small MVPDs are particularly vulnerable to permanent loss of subscribers if they can't reach retrans consent agreements with broadcasters, and broadcasters use such leverage to force noncompetitive terms and unjustified rate increases. "The Commission must not ignore the fact that the retransmission consent marketplace is not working for smaller and new entrant MVPDs," NCCC said, saying the FCC must require negotiating parties in retrans talks to provide data substantiating or verifying claims, which would let small and new MVPDs better evaluate the prices being discussed. "Shining a light on the process could help ease the price discrimination between large, incumbent MVPDs, who are able to secure volume discounts and smaller providers who do not possess the leverage to negotiate favorable terms," NCCC said. The FCC also should limit or restrict nondisclosure agreements so retrans consent terms can be more freely shared with courts, regulatory agencies, legislators and membership associations and organizations, it said. NCCC said forced bundling should be considered a per se violation of good-faith negotiating, or alternately institute a rebuttable presumption that bundling is bad faith behavior in retrans talks. And it said the FCC should require negotiating parties to make their proposals at least six months before the end of an existing contract, and consider it a per se violation for negotiators to insist on contract expiration dates that are within 30 days of marquee events or other special programming or to withhold retrans consent around or during a major marquee event. FCC Media Bureau staff and representatives of Incompas, ITTA, NTCA, the Open Technology Institute at New America and Public Knowledge also attended the NCCC meeting.

As the FCC gets closer to a decision on Charter Communications' proposed buys of Time Warner Cable and Bright House Networks, numerous interested parties continue to suggest conditions to the agency. In an ex parte filing Monday in docket 15-149, Incompas said in a meeting with Commissioner Mignon Clyburn's chief of staff, David Grossman, it discussed its suggested condition of requiring New Charter join a video programming purchasing cooperative and that its interconnection policy be extended to seven years (see 1601280047). In a separate ex parte filing Monday, Nvidia recapped a meeting with Owen Kendler, who's overseeing the Charter review team, at which it again said any Charter approval should come with conditions that would stop it from preventing third-party devices such as Nvidia's Shield TV from having access to the authentication credentials needed to work with various TV Everywhere apps (see 1601220017). Charter and TWC denied they're blocking (see 1602120046). And the California Emerging Technology Fund, in a filing Monday, repeated its case that Charter's proposed low-income broadband offering should have lower qualification limits (see 1601290025). It also said any New Charter approval should require a $285 million donation by the company for broadband adoption areas in Southern California. Charter didn't comment. And in a filing in the docket Monday, the Stop Mega Cable coalition recapped a meeting of representatives from Common Cause, Consumers Union, Dish, ITTA, NTCA, Open Technology Institute, Public Knowledge and Writers Guild of America, West with Grossman. At the meeting, the coalition said, it went over its oft-made arguments on how Charter/TWC/BHN could hurt the broadband, streaming video and programming markets and ultimately consumers (see 1602090019). The FCC's unofficial 180-day shot clock for reviewing the deals hit 180 days Thursday (see 1603240017).

Any tech standards that comply with FCC-proposed rules for third-party set-top boxes should “provide for competitive interoperability across all" multichannel video programming distributor systems, said officials from the Computer & Communications Industry Association, Google, Hauppauge, Incompas, Public Knowledge and TiVo, representing the Consumer Video Choice Coalition in a meeting Tuesday with Media Bureau staff and FCC Chief Technology Officer Scott Jordan, said an ex parte filing posted Friday in docket 16-42. The CVCC representatives said device provider certifications are a “feasible” way to “affirm adherence” to rules on privacy, emergency alerting and children's programming. The FCC should act on a pending petition to reinstate encoding rules, the CVCC said. The FCC shouldn't wait for the completion of a diversity study to change the set-top rules, said GFNTV, National Black Programming Consortium, New England Broadband, Townsend Group and iSwop Networks in a letter to Chairman Tom Wheeler Tuesday. “Diverse programmers and cable networks have repeatedly made a compelling case that the current system of little to no minority ownership and programming is abhorrent and deserving of a solution such as that proposed in the NPRM,” the letter said.

Any tech standards that comply with FCC-proposed rules for third-party set-top boxes should “provide for competitive interoperability across all" multichannel video programming distributor systems, said officials from the Computer & Communications Industry Association, Google, Hauppauge, Incompas, Public Knowledge and TiVo, representing the Consumer Video Choice Coalition in a meeting Tuesday with Media Bureau staff and FCC Chief Technology Officer Scott Jordan, said an ex parte filing posted Friday in docket 16-42. The CVCC representatives said device provider certifications are a “feasible” way to “affirm adherence” to rules on privacy, emergency alerting and children's programming. The FCC should act on a pending petition to reinstate encoding rules, the CVCC said. The FCC shouldn't wait for the completion of a diversity study to change the set-top rules, said GFNTV, National Black Programming Consortium, New England Broadband, Townsend Group and iSwop Networks in a letter to Chairman Tom Wheeler Tuesday. “Diverse programmers and cable networks have repeatedly made a compelling case that the current system of little to no minority ownership and programming is abhorrent and deserving of a solution such as that proposed in the NPRM,” the letter said.

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."

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."

AT&T said the FCC should ease, not toughen, special access regulation, and it responded to various commission queries in a meeting with staffers last week. There's no reason for the FCC to roll back past pricing deregulation of ILEC special access (dedicated circuit) services in the broadband business market, the company said. There is every reason to provide further "Phase II" relief where telcos are subject to facilities-based competition, such as in Chicago and Dallas, where AT&T faces intense competitive pressures, AT&T said in a filing posted Tuesday in docket 05-25 summarizing the Thursday meeting.