The U.S. Appeals Court, D.C., has authority under the reopening doctrine to review and rule on an FCC order adopting the National Programmatic Agreement (NPA), CTIA said Wed. in a supplemental brief. The jurisdictional issue was raised last week by Judge Merrick Garland during oral argument (CD Dec 9 p5) in light of earlier rulings by the court in PanAmSat v. FCC and related cases. CTIA is challenging a 2004 FCC order in which the Commission claimed authority to impose National Historic Preservation Act (NHPA) obligations on construction of wireless towers by cellular and PCS carriers licensed on a geographic basis. The group also is challenging an agency decision to extend wireless providers’ historic preservation obligations to properties “potentially eligible” for inclusion in the National Register of Historic Places. But the court has jurisdiction in CTIA v. FCC (05-1008) only if the 2004 FCC order constitutes a “reopening” of the case. “The FCC’s order differentiates between the FCC’s statutory authority to impose NHPA obligations, and the ‘public interest question’ whether the FCC should… continue to impose such obligations,” CTIA said. The FCC reopened the first question, explaining for the first time its rationale for imposing NHPA obligations on construction of wireless towers not federally funded or licensed, CTIA said. Former Comr. Kathleen Abernathy and then-Comr. Martin dissented from the order “without suggesting that the majority had refused to address the issue,” it said. In a Bureau-level order, CTIA said, the FCC later relied on the consideration of its statutory authority in the 2004 order to deny review of that issue in another proceeding. “All of that demonstrates that the FCC intended to and did in fact reopen this issue in order to achieve a definitive resolution of the statutory question,” CTIA said: “That is doubtless why the FCC, which routinely raises jurisdictional issues before this Court, did not do so in this case, either in its briefs or at oral argument.” FCC’s brief on the issue is due Dec. 19; CTIA’s reply, Dec. 22.
Major Questions Doctrine
Rural telecom firms face a significant choice as a result of FCC deregulation of wireline Internet access (CD Aug 8 p1), panelists said on a USTelecom Webinar conference Tues. The order lets rural telecoms decide if their DSL service is to be treated as a regulated common carrier service or as a generally unregulated private carriage offering -- and that’s a major decision that can’t be made “off the top of the head,” said Carol Mattey, formerly at the FCC Wireline Bureau and now a Deloitte & Touche dir.
After House Commerce Committee Chmn. Barton (R-Tex.) told NAB Tues. that he had the votes in the House to force a Dec. 31, 2006, deadline on DTV transition, he praised broadcasters around the country for their grassroots organization and support of their local representatives. He said it was their “ace in the hole.” “If you play your aces, not your deuces, you'll be okay,” he told the NAB State Leadership Conference.
A federal appeals court upheld a lower court decision holding P2P providers Grokster and Morpheus not liable for copyright infringement by their users. The court suggested content owners seek to alter copyright law “in profound ways with unknown ultimate consequences.” The dist. court ruling against MGM and other studios and record labels had already prompted several senators to fast-track legislation aimed at expressly holding P2P sites liable for “inducing” infringement. We're told content owners can ask for reconsideration of the 3-judge ruling, en banc deliberation by the entire 9th Circuit or review by the U.S. Supreme Court.
A USTA plan to get high-tech suppliers to support a deregulatory lobbying campaign may be an antitrust violation, 26 competitive telecom companies plus ALTS and CompTel said in a letter sent Fri. to key congressional committees. USTA invited top executives of high-tech companies to a closed dinner Oct. 20 in Washington to discuss a possible lobbying alliance and seek funding from the suppliers. One Bell official later characterized the plan as a natural move, given that high-tech suppliers had tended to support Bells’ deregulatory campaigns.
Results of today’s races for governor are just as likely to influence telecom policy as are those for narrowly divided Senate, telecom analysts said Mon. Since many don’t see significant telecom legislation working its way through Congress in upcoming 108th session, work of state PUCs is just as likely to have impact on telecom policy, we're told. “Unless there is some kind of consensus, it’s difficult for a split Congress to move,” said Blair Levin of Legg Mason. “Everyone agrees that there’s a problem in the telecom industry, but there’s no consensus as to the nature of the problem.” Yet analysts said much depended on how FCC acted on several proceedings before it.
When Comcast rolls out Voice-over-IP service in Philadelphia next year, as company has said it will do, many in telecom industry and at FCC will be waiting to see how much market share VoIP takes from traditional telephone business. Although no proceeding is teed up on issue at FCC, some among Commission’s staff are thinking about how that new service will be regulated, given that industry analysts predict VoIP eventually will compete and perhaps even overtake circuit-switched telephony delivered by CLECs. Technical issues aside, Comr. Abernathy last week laid out principles of new services doctrine she believes should include light regulatory touch, at least in beginning, while services such as VoIP remain immature competitors (CD Aug 20 p2).