Broadcasters seeking extended deadlines in the "totality of circumstances" test rulemaking are facing a bigger fight, with Incompas, ITTA, NTCA and Public Knowledge now resisting the motion. The Incompas et al. opposition posted Wednesday in docket 15-216 joins similar pushback posted earlier this week from the American Television Alliance (see 1510260025). While broadcasters have said they need more time while they deal with spectrum auction issues, "both Congress and the Commission have provided sufficient notice of this proceeding and consumers have waited long enough for a resolution to address the increasing number of disputes ... over retransmission consent agreements," the groups said. Such a delay "would maintain the status quo [for multichannel video programming distributors] who have had to deal with exorbitant price increases for both broadcast and non-broadcast programming, as well as for their customers who have seen these increases reflected in their monthly billing statements," Incompas et al. said. Since the FCC adopted the NPRM in September and a summary was published Oct. 2 in the Federal Register, they said, "the notice ... has been more than sufficient for parties to gather information and prepare comments and an additional 60-day delay cannot be justified."

Incumbent telcos opposed the FCC's tech transition proposals for assessing the adequacy of IP-based services intended to replace legacy copper-based phone services being discontinued. They said the commission’s proposed standards could slow the IP transition and broadband deployment, with AT&T suggesting it would be unlawful. Rural carriers asked the agency to clarify that they were covered by a rural exemption. But competitors, consumer groups, public safety groups, state regulators, electric power groups and others voiced varying degrees of support for proposed criteria, and some suggested additional criteria, including on affordability.

Describing the FCC's protective order for confidential information as "an appropriate balance between the competitive concerns and the more general public interest," American Cable Association (ACA), Dish Network and Incompas are opposing a petition for reconsideration of those rules. Some content companies and the U.S. Chamber of Commerce earlier this month petitioned the agency to vacate its order allowing confidential contract information to be shared with third parties during the merger review process (see Ref:1510130065]). But the arguments they used citing the Trade Secrets Act and the FCC standards under the Freedom of Information Act don't prevent the FCC from such confidential materials rules, ACA, Dish and Incompas said in their opposition posted Monday in docket 15-149; the "persuasive showing" standard isn't required when the Communications Act allows such disclosure, and the Trade Secrets Act comes into play only when disclosure is not authorized by law, but federal law authorizes the agency to permit such disclosures. Data about negotiations, programming practices and the business arrangements of Charter, Bright House Networks and Time Warner Cable "is particularly important in this proceeding," the three said. Charter/TWC/BHN will have "an increased incentive and ability to strong arm third party programmers" into shutting out competing over-the-top services, plus "increased ability and incentive" to deny such affiliated content as Discovery and Starz to competing video distributors, the three said. Since the FCC on Sept. 11 issued an order setting new rules for the handling of confidential information, numerous entities have filed in docket 15-149 indicating they seek access to the confidential and highly confidential information filed in the proceeding, including ACA, Charter Communications, Dish Network, Free Press, Hawaiian Telecom Services, Incompas, New York State Public Service Commission and Zoom Telephonics.

AT&T, CenturyLink, Frontier and Verizon asked the FCC to modify special-access rulemaking protective orders to allow parties to use confidential industry data from that proceeding in the Wireline Bureau’s recently opened tariff investigation into ILEC contract terms and conditions. Meanwhile, Fred Campbell, executive director of the Center for Boundless Innovation in Technology, suggested FCC Chairman Tom Wheeler had opened the bureau tariff investigation to gain more control over the special-access process than in the commission-level rulemaking. But an FCC spokesman said the commission would have to vote on the bureau investigation to act. In opening the tariff probe, the bureau used the data "to draw preliminary conclusions related to this investigation,” the four large incumbent telcos said in a motion posted Monday in docket 05-25. But they said the protective order terms prevent parties from using the rulemaking data in the tariff investigation despite the data likely including "relevant information about the state of competition" and the relationships to ILEC contract terms. “These data are therefore necessary to the ILECs’ defense in the tariff investigation, and the Commission should accordingly modify the protective orders,” the four incumbent telcos said. ILEC critics Incompas and Sprint didn't comment. In a Forbes commentary, Campbell said, “The FCC claims ‘a more systematic inquiry’ into telephone companies’ pricing plans is necessary to determine their reasonableness. But the FCC’s framework for this tariff investigation is so sloppy and unsystematic that the outcome appears to have been predetermined.” Instead of examining all the issues in one proceeding, Campbell said, the use of a tariff investigation gives Wheeler “the power to exercise unilateral control over the FCC’s approach to regulating special access” while “obscuring the agency’s discriminatory approach to such regulation.” Campbell said the rulemaking will require a commission majority to adopt an order, but the bureau “has delegated authority to issue orders involving tariffs, and the chairman controls” the bureau. Wheeler's authority to act unilaterally on telco tariffs "gives him leverage to control the outcome of the broader rulemaking,” Campbell said. The FCC spokesman said the bureau won't decide the investigation and pointed us to the first paragraph of the order, which said the bureau "intends to gather sufficient information to enable the full Commission to decide whether and how to resolve these allegations." In response, Campbell said intent was not the same as a binding order. "If they’re absolutely going to stand behind a commission-level vote 100 percent, OK, but until there’s something unequivocal to that effect, I don’t think it changes my analysis at all,” he told us.

Incompas joined by the Competitive Carriers Association opposed a USTelecom request joined by ITTA to extend the comment periods in the FCC special access rulemaking. USTelecom and ITTA apparently are trying to simply delay the proceeding, Incompas (formerly Comptel) and CCA said in their opposition Friday in docket 05-25. USTelecom and ITTA had asked that the current comment and reply deadlines of Nov. 20 and Dec. 11 be pushed back to Jan. 19 and Feb. 18. They said some incumbent telco outside counsels hadn't yet been cleared to see massive amounts of confidential industry data collected by the agency, and time was running out to review the data and file comments without an extension (see 1510220069).

The House Communications Subcommittee locked down 10 a.m. Wednesday in 2123 Rayburn for an expected hearing on barriers to broadband infrastructure deployment. “With ever-increasing demand for broadband Internet access, whether fixed or mobile, the subcommittee will review proposals break down barriers preventing consumer access to this vital resource,” the committee said in a news release. “The proposals would streamline processes for getting access to federal lands and utility poles, require smart dig-once policies that take advantage of existing roadwork to deploy fiber conduit, and examine the bureaucracy that impedes private sector investment in broadband.” Lawmakers on multiple House committees raised the issue of “dig once” policies Thursday, including Communications Subcommittee ranking member Anna Eshoo, D-Calif., who has prioritized the issue in past sessions of Congress. In the Transportation Committee, Rep. John Garamendi, D-Calif., proposed an amendment to the Surface Transportation Reauthorization and Reform Act (HR-3763) during a Thursday markup. The amendment would have set up a process by which “the conduit would be laid in as that road was repaired or constructed,” he said, calling it “pretty simple” but with major economic development and public safety implications: “The cost is minor compared to the potential benefit,” Garamendi said. “Ms. Eshoo has introduced a similar bill that will eventually be discussed in committee.” Transportation Committee Chairman Bill Shuster, R-Pa., opposed the amendment, arguing it would be “imposing new mandates” on states. Garamendi disagreed but withdrew the amendment, promising “we’ll continue to work this.” In the Communications Subcommittee, Eshoo and Subcommittee Chairman Greg Walden, R-Ore., introduced the Broadband Conduit Deployment Act, an Eshoo bill that lacked GOP backing in the past. “Paving the way for smoother deployment of state-of-the-art-broadband networks has long been a goal for our subcommittee,” Walden said in a statement. “This legislation meets that goal and makes it easier to connect more Americans to this vital 21st century resource.” The American Cable Association, AT&T, CenturyLink, Incompas, Public Knowledge, TechFreedom and the Information Technology and Innovation Foundation lauded the bill. Similar provisions exist as part of a bipartisan bill that Sen. Amy Klobuchar, D-Minn., is spearheading in the Senate. The bill “will further reduce the cost of laying thousands of miles of fiber optic lines by private businesses,” American Cable Association President Matt Polka said. The bill attracted 26 other lawmakers as co-sponsors, Eshoo’s spokesman told us. The backers are a mix of Democrats and Republicans, from Commerce Committee Vice Chairwoman Marsha Blackburn, R-Tenn., to Congressional Black Caucus Chairman G.K. Butterfield, D-N.C. Garamendi also backs the Eshoo/Walden bill.

The House Communications Subcommittee locked down 10 a.m. Wednesday in 2123 Rayburn for an expected hearing on barriers to broadband infrastructure deployment. “With ever-increasing demand for broadband Internet access, whether fixed or mobile, the subcommittee will review proposals break down barriers preventing consumer access to this vital resource,” the committee said in a news release. “The proposals would streamline processes for getting access to federal lands and utility poles, require smart dig-once policies that take advantage of existing roadwork to deploy fiber conduit, and examine the bureaucracy that impedes private sector investment in broadband.” Lawmakers on multiple House committees raised the issue of “dig once” policies Thursday, including Communications Subcommittee ranking member Anna Eshoo, D-Calif., who has prioritized the issue in past sessions of Congress. In the Transportation Committee, Rep. John Garamendi, D-Calif., proposed an amendment to the Surface Transportation Reauthorization and Reform Act (HR-3763) during a Thursday markup. The amendment would have set up a process by which “the conduit would be laid in as that road was repaired or constructed,” he said, calling it “pretty simple” but with major economic development and public safety implications: “The cost is minor compared to the potential benefit,” Garamendi said. “Ms. Eshoo has introduced a similar bill that will eventually be discussed in committee.” Transportation Committee Chairman Bill Shuster, R-Pa., opposed the amendment, arguing it would be “imposing new mandates” on states. Garamendi disagreed but withdrew the amendment, promising “we’ll continue to work this.” In the Communications Subcommittee, Eshoo and Subcommittee Chairman Greg Walden, R-Ore., introduced the Broadband Conduit Deployment Act, an Eshoo bill that lacked GOP backing in the past. “Paving the way for smoother deployment of state-of-the-art-broadband networks has long been a goal for our subcommittee,” Walden said in a statement. “This legislation meets that goal and makes it easier to connect more Americans to this vital 21st century resource.” The American Cable Association, AT&T, CenturyLink, Incompas, Public Knowledge, TechFreedom and the Information Technology and Innovation Foundation lauded the bill. Similar provisions exist as part of a bipartisan bill that Sen. Amy Klobuchar, D-Minn., is spearheading in the Senate. The bill “will further reduce the cost of laying thousands of miles of fiber optic lines by private businesses,” American Cable Association President Matt Polka said. The bill attracted 26 other lawmakers as co-sponsors, Eshoo’s spokesman told us. The backers are a mix of Democrats and Republicans, from Commerce Committee Vice Chairwoman Marsha Blackburn, R-Tenn., to Congressional Black Caucus Chairman G.K. Butterfield, D-N.C. Garamendi also backs the Eshoo/Walden bill.

Unless the inevitable widening schism in programming costs that would follow Charter Communications' purchases of Bright House Networks and Time Warner Cable can somehow be addressed, the FCC should reject the deals, Incompas said in an ex parte filing posted Tuesday in docket 15-149 on a meeting Tuesday at the group's conference in San Francisco between Gigi Sohn, counselor to Chairman Tom Wheeler, and Angie Kronenberg, Incompas general counsel. Incompas said it raised red flags about how the deals might affect the broadband market's competitive landscape. Charter's application lacks any kind of analysis of what the transactions would do to broadband competition and to the "intertwined markets" for linear video and broadband, Incompas said. Consumers prefer ISPs that also offer multichannel video services, but rising video costs are a big hurdle for small- and mid-sized ISPs interested in building out their broadband networks, Incompas said. Charter's and TWC's larger scales post-deals would mean lower programming costs for New Charter relative to potential broadband competition, resulting in "a substantial barrier to future broadband investment and competition in (New Charter's) footprint," the group, formerly known as Comptel, said.

Unless the inevitable widening schism in programming costs that would follow Charter Communications' purchases of Bright House Networks and Time Warner Cable can somehow be addressed, the FCC should reject the deals, Incompas said in an ex parte filing posted Tuesday in docket 15-149 on a meeting Tuesday at the group's conference in San Francisco between Gigi Sohn, counselor to Chairman Tom Wheeler, and Angie Kronenberg, Incompas general counsel. Incompas said it raised red flags about how the deals might affect the broadband market's competitive landscape. Charter's application lacks any kind of analysis of what the transactions would do to broadband competition and to the "intertwined markets" for linear video and broadband, Incompas said. Consumers prefer ISPs that also offer multichannel video services, but rising video costs are a big hurdle for small- and mid-sized ISPs interested in building out their broadband networks, Incompas said. Charter's and TWC's larger scales post-deals would mean lower programming costs for New Charter relative to potential broadband competition, resulting in "a substantial barrier to future broadband investment and competition in (New Charter's) footprint," the group, formerly known as Comptel, said.

SAN FRANCISCO -- Petitioners challenging the net neutrality order threw a “Hail Mary” in arguing the FCC was statutorily precluded from reclassifying broadband access as a Title II telecom service under the Communications Act, said Steptoe and Johnson attorney Markham Erickson. He represents Incompas (formerly Comptel), Level 3 and Netflix in defending the order. Erickson spoke at a Davis Wright net neutrality seminar Wednesday after the Comptel Plus conference.