Incompas and Sprint opposed an FCC motion that a court remand business data service tariff litigation in which AT&T is challenging a 2016 agency order that found certain incumbent telco BDS tariff provisions unlawful (see 1706140012). Granting the commission's request, which cited a 2006 BellSouth v. FCC ruling, "would needlessly delay resolution of a case" affecting much of the telecom industry, said the two intervenors in their opposition (in Pacer) Friday to the U.S. Court of Appeals for the D.C. Circuit in AT&T v. FCC, No. 16-1166. Incompas and Sprint also said they intend to ask the 8th U.S. Circuit Court of Appeals to transfer separate challenges to the FCC's recent deregulatory BDS order to the D.C. Circuit "so that both cases may be heard by the same panel." Windstream and others asked the FCC to stay that BDS order (see 1706260054). In their opposition, Incompas and Sprint noted the FCC's 2016 tariff investigation order required AT&T and other major ILECs to remove from their pricing plans "unjust and unreasonable" contract provisions, including "all-or-nothing" terms and some volume-shortfall and early-termination penalties. They said voluntary remand is usually granted when there's new evidence or a new event that may affect the validity of agency actions. "None of those circumstances has occurred here," said their opposition. "Instead, the Commission asks -- without confessing error -- for remand to consider an eleven-year-old case that ... is not relevant." Meanwhile, the FCC Friday in a status report (in Pacer) asked the D.C. Circuit to continue to hold in abeyance a USTelecom case challenging an interim technology transitions wholesale access rule that will expire with the implementation of new special access (BDS) rules, which were adopted in April and most of which take effect Aug. 1 (see 1706020060). In USTelecom v. FCC, No. 15-1414, the telco group also is challenging the previous FCC's interpretation of Communications Act Section 214, which the current commission proposed to reverse in a recent wireline broadband deployment NPRM that drew many comments this month (see 1706160041).

Incompas and Sprint opposed an FCC motion that a court remand business data service tariff litigation in which AT&T is challenging a 2016 agency order that found certain incumbent telco BDS tariff provisions unlawful (see 1706140012). Granting the commission's request, which cited a 2006 BellSouth v. FCC ruling, "would needlessly delay resolution of a case" affecting much of the telecom industry, said the two intervenors in their opposition (in Pacer) Friday to the U.S. Court of Appeals for the D.C. Circuit in AT&T v. FCC, No. 16-1166. Incompas and Sprint also said they intend to ask the 8th U.S. Circuit Court of Appeals to transfer separate challenges to the FCC's recent deregulatory BDS order to the D.C. Circuit "so that both cases may be heard by the same panel." Windstream and others asked the FCC to stay that BDS order (see 1706260054). In their opposition, Incompas and Sprint noted the FCC's 2016 tariff investigation order required AT&T and other major ILECs to remove from their pricing plans "unjust and unreasonable" contract provisions, including "all-or-nothing" terms and some volume-shortfall and early-termination penalties. They said voluntary remand is usually granted when there's new evidence or a new event that may affect the validity of agency actions. "None of those circumstances has occurred here," said their opposition. "Instead, the Commission asks -- without confessing error -- for remand to consider an eleven-year-old case that ... is not relevant." Meanwhile, the FCC Friday in a status report (in Pacer) asked the D.C. Circuit to continue to hold in abeyance a USTelecom case challenging an interim technology transitions wholesale access rule that will expire with the implementation of new special access (BDS) rules, which were adopted in April and most of which take effect Aug. 1 (see 1706020060). In USTelecom v. FCC, No. 15-1414, the telco group also is challenging the previous FCC's interpretation of Communications Act Section 214, which the current commission proposed to reverse in a recent wireline broadband deployment NPRM that drew many comments this month (see 1706160041).

Critics asked the FCC to stay its recent deregulatory business data service order (see 1704200020), and said they would treat inaction by Friday as denial. The record shows incumbent telcos are the only facilities-based provider in 86 percent of buildings with total bandwidth demand of 50 Mbps or less "because it is almost never economically feasible to build a new last-mile connection" in such situations, said a joint stay motion posted Monday in docket 16-143 by Windstream, BT Americas, Incompas and the Ad Hoc Telecom Users Committee. They said competitors must buy last-mile connections from the ILEC to compete, and also often must buy dedicated BDS transport from ILECs. The FCC traditionally used price-cap regulation to control rates, but new leadership "abruptly changed course without seeking further comment" and "adopted results-driven new rules divorced from well-established market analysis principles, precedent and" the previous commission's 2016 proposals, said the motion. ILECs will be allowed to detariff Aug. 1 "and to replace discontinued BDS with higher-cost alternatives, creating the prospect of enormous disruption and uncertainty as the industry migrates to a new paradigm of Commission indifference to competition," said the groups, arguing they met the requirements for a stay: "Moreover, a stay would not harm the ILECs, and instead would avoid massive and permanent losses that would be unrecoverable in the event of reversal." The FCC, stay movants and ILECs didn't comment. The FCC rarely approves such requests, leaving critics to seek court action. The 8th U.S. Circuit Court of Appeals was recently chosen by lottery to hear challenges to the BDS order (see 1706160022), but Incompas and Sprint said Friday they would ask that court to transfer that case to the D.C. Circuit, which has before it an AT&T challenge to a 2016 BDS tariff investigation order. Incompas and Sprint opposed an FCC motion the D.C. Circuit remand the tariff case to the agency (see 1706260015).

FCC efforts to spur wireline broadband advances sparked a strong response, as scores of parties submitted a wide range of views on a rulemaking notice and related items aimed at removing barriers to fiber network deployment. Telecom, cable and fiber providers generally supported the commission's direction, backing steps to ease pole attachments. Incumbent telcos also sought reduced copper-retirement regulation, but CLECs and consumer and labor groups opposed relaxation. Numerous localities and some state interests opposed possible FCC pre-emption of their oversight, and the electric utility industry objected to any heavy-handed pole-attachment intervention, though some supported "one-touch, make-ready" (OTMR) changes if properly conditioned.

FCC efforts to spur wireline broadband advances sparked a strong response, as scores of parties submitted a wide range of views on a rulemaking notice and related items aimed at removing barriers to fiber network deployment. Telecom, cable and fiber providers generally supported the commission's direction, backing steps to ease pole attachments. Incumbent telcos also sought reduced copper-retirement regulation, but CLECs and consumer and labor groups opposed relaxation. Numerous localities and some state interests opposed possible FCC pre-emption of their oversight, and the electric utility industry objected to any heavy-handed pole-attachment intervention, though some supported "one-touch, make-ready" (OTMR) changes if properly conditioned.

The FCC asked a court to remand a business data service investigation case in which AT&T is challenging a 2016 order that found certain incumbent telco BDS tariff provisions were unlawful (see 1604280057). In its statement of issues to the U.S. Court of Appeals for the D.C. Circuit, AT&T had said the order is contrary to the court's 2006 BellSouth v. FCC ruling that vacated a previous commission tariff order. "The Order on review did not address BellSouth," said an FCC motion for voluntary remand Tuesday in AT&T v. FCC, No. 16-1166. "Because that case, like the Order on review, addresses the lawfulness of BDS tariff terms, the Commission believes that it would be appropriate to consider the extent to which the reasoning in the Order is compatible with the BellSouth decision." The FCC said DOJ and intervenor CenturyLink consent to its motion; intervenors Sprint and Incompas are studying it; intervenor Ad Hoc Telecommunications Committee doesn't consent; and the agency discussed the motion with a counsel to intervenor Level 3 but the company didn't respond. Sprint, Incompas, Ad Hoc and Level 3 didn't comment Wednesday.

The FCC asked a court to remand a business data service investigation case in which AT&T is challenging a 2016 order that found certain incumbent telco BDS tariff provisions were unlawful (see 1604280057). In its statement of issues to the U.S. Court of Appeals for the D.C. Circuit, AT&T had said the order is contrary to the court's 2006 BellSouth v. FCC ruling that vacated a previous commission tariff order. "The Order on review did not address BellSouth," said an FCC motion for voluntary remand Tuesday in AT&T v. FCC, No. 16-1166. "Because that case, like the Order on review, addresses the lawfulness of BDS tariff terms, the Commission believes that it would be appropriate to consider the extent to which the reasoning in the Order is compatible with the BellSouth decision." The FCC said DOJ and intervenor CenturyLink consent to its motion; intervenors Sprint and Incompas are studying it; intervenor Ad Hoc Telecommunications Committee doesn't consent; and the agency discussed the motion with a counsel to intervenor Level 3 but the company didn't respond. Sprint, Incompas, Ad Hoc and Level 3 didn't comment Wednesday.

The nomination of Jessica Rosenworcel to return to the FCC as a commissioner (see 1706140065) could provide additional impetus for Commissioner Mignon Clyburn to announce her eventual retirement from the agency, industry officials said. Clyburn has been under some pressure from opponents of Chairman Ajit Pai’s deregulatory agenda to step down in July after her term expires this month to leave the FCC without a quorum (see 1704140061). Clyburn has had little to say on the topic and gave no indication she will leave soon. Clyburn spoke to the Voices for Internet Freedom Public Forum in Atlanta Tuesday night in defense of the 2015 net neutrality rules.

The nomination of Jessica Rosenworcel to return to the FCC as a commissioner (see 1706140065) could provide additional impetus for Commissioner Mignon Clyburn to announce her eventual retirement from the agency, industry officials said. Clyburn has been under some pressure from opponents of Chairman Ajit Pai’s deregulatory agenda to step down in July after her term expires this month to leave the FCC without a quorum (see 1704140061). Clyburn has had little to say on the topic and gave no indication she will leave soon. Clyburn spoke to the Voices for Internet Freedom Public Forum in Atlanta Tuesday night in defense of the 2015 net neutrality rules.

Building and real-estate groups backed a bid for FCC pre-emption of a San Francisco code that requires multi-tenant buildings to allow occupants to request access to competing communications service providers (see 1612150006). Initial comments "overwhelmingly support" the petition of the Multifamily Broadband Council to pre-empt Article 52 of the San Francisco Police Code, which "conflicts with federal law, will impede broadband deployment and infrastructure investment in multiple dwelling units ('MDUs') and will increase prices and reduce service quality for MDU residents," replied the National Multifamily Housing Council. Most replies were posted Friday and Monday in docket 17-91. Initial comments (see 1705190040) showed Article 52 "will harm competition, MDU residents, and building owners in San Francisco" by stripping "providers of the ability to secure financing for broadband deployment," replied MBC. Others filing replies backing the petition were: Alliance Residential; Camden Property Trust, Essex Property Trust; InfoSmart Partners and Converged Service Partners; Mill Creek Residential Trust; Sares Regis Group, Sequoia Equities and RealtyCom Partners; and a group of 24 apartment owners. San Francisco replied that the advocates of the petition largely ignored that it concerns whether federal law and FCC regulations pre-empt Article 52: "While many of the proponents ask the Commission to find that Article 52 'conflicts' with federal law and Commission policy, they provide scant legal analysis and nothing supporting such a finding. Rather, they urge the Commission to find that the policy reasons for adopting Article 52 are misguided and that San Francisco’s law, while intended to foster competition, 'discourages competition' and 'infrastructure investment' in [MDUs]. ... What is clear from the proponents’ comments is that they like the status quo." Industry providers and property owners backing the petition want the FCC "to allow them to continue to operate under the exclusive access agreements they have enjoyed," San Francisco said. Also filing replies in opposition to the petition were Boston, Fiber Broadband Association and Incompas. Article 52 is a "pro-competitive, barrier-removing local ordinance, with a now-proven track record for helping providers gain access" to MDUs, Incompas replied. FCC members tentatively plan to vote June 22 on a notice of inquiry that would seek comment on ways to improve competitive broadband access in multi-tenant buildings (see 1706010049).