The upcoming court decision on net neutrality gives the FCC an opportunity to rethink how it handles Internet disputes, said speakers on an American Enterprise Institute conference call Monday. “The FCC will win regardless of the outcome,” said Roslyn Layton, a Ph.D. fellow at Aalborg University in Copenhagen. Obviously, the agency will win if U.S. Court of Appeals for the D.C. Circuit approves the rules, but “the FCC will win even bigger if they lose,” she said. FCC Chairman Tom Wheeler is versed in military history, and wants to “change the game” of a net neutrality fight that has been going on for more than a decade, Layton said. If the FCC gets decision not in the agency’s favor, it gives the commission a “clean slate” and opportunity to do many things, she said: It could come up with a “more holistic” idea of open Internet that applies to all the players, including back end. Or “net neutrality could be rebooted with more teeth,” in which those making a net neutrality claim would need to prove market power abuse, or that consumers are actually being harmed by a new practice, she said. The net neutrality rules are “not particularly toxic in their own right, but there’s a big slippery slope problem,” said Richard Bennett, visiting AEI scholar. The agency used Section 706 of the Telecom Act to justify the regulations, which is an example of the FCC looking for a way to define its own jurisdiction, he said. “If the agency is free to define its own jurisdiction, then the wishes of Congress no longer matter in the day-to-day operation of the FCC.” For instance, if the agency decided that all broadband plans should have a minimum speed of 20 Mbps, “then it could just enact that … based on 706 jurisdiction,” he said. Based on remarks of Wheeler over the past month, “I don’t think this commission is looking to vastly expand its authority,” said Jeffrey Eisenach, director of AEI’s Center for Internet, Communications, and Technology Policy. Wheeler is taking what appears to be a “very sensible approach” to net neutrality disputes, Eisenach said. But if the D.C. Circuit upholds the authority that the FCC asserts in defending the net neutrality order, “the potential would be there over time” for great regulatory expansion to occur, he said.

A high-level policy group will recommend how to use the 470-790 MHz UHF spectrum band most effectively in coming years, the European Commission said Monday. The panel, whose members include broadcasters, network operators, mobile providers and tech associations, will help the EC and EU governments develop long-term strategies and regulatory policy on future use of the band, including the possibility of sharing some parts of the spectrum, it said. The group’s report will look at how Europe will access and use audiovisual content and data in the medium to long term and respond to four challenges, it said: (1) What next-generation terrestrial provision and reception of audiovisual content will look like. (2) How to secure the public interest and consumer benefits while allowing for market transformation. (3) What the strategic elements of spectrum use in the UHF band are in light of the first challenge, and what regulatory role the EU should play in coordinating developments. (4) What the financial implications are for a next-generation terrestrial platform for broadcasting and Internet use.

The FCC is effectively getting rid of its old gold-and-blue website, forcing all users to use the sometimes controversial new site (CD June 6/11 p2). Since the new site was launched three years ago, the agency has kept the old site up and running. “Beginning Feb. 3, this front page will redirect automatically to the FCC.gov homepage,” said a notice that appeared on the top of the so-called transition webpage. “Personal bookmarks to other transition.fcc.gov pages will continue to work."

Analysts are bullish on the potential for wireless carriers to experiment with new business models on the Internet, based on remarks FCC Chairman Tom Wheeler has made in the past week. Wheeler gave AT&T “clear support to move ahead” with its sponsored data plan when he said at the Computer History Museum (CD Jan 10 p6) the net neutrality order “did not discourage this type of two-sided market for mobile uses,” wrote Stifel Nicolaus analysts Christopher King and David Kaut in an analyst note Friday, quoting Wheeler’s speech. King and Kaut expect the U.S. Court of Appeals for the D.C. Circuit to soon overturn the FCC’s prohibition against “unreasonable discrimination” by wireline broadband providers, which they said would free most wireline telcos and cable companies to pursue wireline data-sponsorship plans “and even paid-prioritization agreements,” they said. Spectrum congestion makes wireless data caps much more restrictive than wireline data limits, making wireless “a natural place to test out data-sponsorship offers,” the analysts said. If those offers “catch on,” and the court reverses the net neutrality rules, they expect cable and wireline companies to also pursue such plan. Wheeler remarks on the importance of interconnection and openness on the Internet suggest “some willingness to at least consider reclassifying broadband Internet access” as a more heavily regulated Title II telecom service, they said, “if he believes it necessary to preserve an FCC broadband oversight role.” Paul Gallant of Guggenheim Partners said Wheeler’s comments are “encouraging for both wireless and cable/telcos that want to explore new broadband monetization opportunities.” Gallant sees Wheeler’s comments on new business models in the wireless arena as “quite encouraging for wireless operators,” he said. Cable operators and telcos can likely also explore new business models, as Wheeler encouraged experimentation, wrote the analyst. “But these models will face closer FCC scrutiny than new wireless services and will need to be carefully crafted to pass both regulatory and political scrutiny."

The repacking and reverse auction components of the broadcast spectrum incentive auction are interdependent, said the FCC Incentive Auction Task Force in a public notice Thursday (http://bit.ly/1ktSjyT). If the commission ultimately decides to use a descending clock auction, “it would be necessary to perform numerous feasibility checks prior to each round of bidding,” said the task force. Speed would be important, it said: The analysis “would have to be fast enough to not unduly slow down the bidding process.” The repacking feasibility checking process results can possibly determine a feasible channel assignment for a set of stations or it can determine that no such feasibility assignment exists, it said. It appears that the use of feasibility checking would be compatible with a multiple round auction format “because it can compute answers quickly enough to allow multiple rounds of an auction to take place in a reasonable amount of time,” it said. The task force said it plans to host a webinar next month to discuss approaches for feasibility and the results of initial testing.

President Barack Obama will disclose Friday which surveillance review group recommendations he will adopt and which he will reject, said Press Secretary Jay Carney. “The president’s been clear throughout this review process that we will not harm our national security or our ability to face global threats.” Carney last Friday pointed to a goal of taking measures that “create more transparency, introduce reforms that improve the system” to give Americans more confidence. Obama has held many meetings on these topics throughout last week, including with top members of Congress Thursday. Sens. Mark Udall, D-Colo., Ron Wyden, D-Ore., and Martin Heinrich, D-N.M., sent a letter (http://bit.ly/KJZWRt) to the White House Friday demanding Obama adopt certain recommendations from his review group report, released in December. These three members of the Senate Intelligence Committee focused on why the government should end its bulk collection of phone metadata and endorsed the idea of having the government go to the phone companies to seek it out. “Telecom providers generally already hold this information for at least 18 months to comply with FCC regulations, and some companies hold data longer for their own business purposes,” the senators wrote, saying the proposal means companies would not have to hold metadata any longer than they currently do. “Frankly, the NSA has not demonstrated that there is any need to require the telecom providers to hold data for longer than they normally would.” They do not think this would hurt the speed of the government’s accessing metadata or create privacy concerns, they said. They also asked Obama to close a loophole permitting warrantless searches of phone call content and emails in the midst of foreign surveillance as well as create a Foreign Intelligence Surveillance Court constitutional advocate. Obama can do this now, but they are ready to help by introducing such legislation, they said.

The latest update from the Organisation for Economic Co-operation and Development (http://xrl.us/bqe3vv) shows that wireless broadband penetration grew to more than 68 percent in the OECD area as of June, meaning there are now more than two wireless subscriptions for every three inhabitants, the group said Thursday. Mobile broadband subscriptions in the 34-country group were up more than 16 percent from a year earlier, to a total of more than 851 million, driven by the ongoing demand for smartphones and tablets, it said. Australia, Denmark, Finland, South Korea, Japan and Sweden are now above 100 percent penetration, with Australia in first place because of a large surge in smartphone subscriptions in the first half of last year, it said. The U.S. came seventh in the ranking of wireless broadband subscriptions for 1,200 inhabitants, the OECD said. DSL remains the predominant technology for fixed broadband subscriptions, but it’s being gradually replaced by fiber, which now serves nearly 16 percent of subscriptions, it said. Two-digit annual growth in fiber take-up was the result of increases in large OECD nations with low penetration rates such as France, Spain, Turkey and the U.K., it said.

A classified Defense Department report said that former National Security Agency contractor Edward Snowden managed to download 1.7 million intelligence files before leaving the country, top House Intelligence Committee leaders said Thursday in a news release (http://1.usa.gov/19Vr7om). They slammed Snowden for what the report found. The revelations in the files kicked off the ongoing debate surrounding U.S. phone and Internet surveillance practices and the number of files stolen has been contested. “Snowden’s disclosures have already tipped off our adversaries to the sources and methods of our defense, and hurt U.S. allies helping us with counter terrorism, cyber crime, human and narcotics trafficking, and the proliferation of weapons of mass destruction,” the report said, according to House Intelligence Chairman Mike Rogers, R-Mich., and ranking member Dutch Ruppersberger, D-Md.

The FCC announced its tentative agenda Thursday for its Jan. 30 meeting. Commissioners will consider a report and order, NPRM and NOI on “technology transitions experiments” to examine how to best accelerate the transition to next-generation networks. (See separate report above in this issue.) It will also consider a policy statement and FNPRM on enabling nationwide text-to-911 service. The Incentive Auction Task Force will give a presentation on the timeline for the broadcast incentive auction, according to the agenda. The Process Reform Working Group will also give a presentation. The meeting is scheduled for 10:30 a.m.

President Barack Obama met with the Privacy and Civil Liberties Oversight Board Wednesday in the White House Situation Room, according to his schedule and confirmed by the board. He also met with intelligence community leaders later in the day, according to his schedule. Vice President Joe Biden attended both closed meetings. PCLOB appreciated the chance to weigh in on its “independent bipartisan review and related findings regarding the telephone metadata program operated pursuant to Section 215 of the USA PATRIOT Act, as well as on the operations of the Foreign Intelligence Surveillance Court (FISC),” it said in a statement. “The Board remains on schedule to issue its report on the telephone metadata program, as well as on the operations of the FISC, to the President, Congress, and the public in late January/early February. The report will contain a detailed analysis of the Section 215 Program and the operation of the FISC. It will address the 215 Program’s legality, whether it strikes the right balance between national security and privacy and civil liberties, and will make recommendations for legislative and program reform.” There will be a separate subsequent report on Foreign Intelligence Surveillance Act Section 702 surveillance, it said.