The 2005 Junk Fax Prevention Act doesn't authorize the FCC to require businesses have an opt-out notice on fax advertisements that were solicited by the receivers, so the 2006 solicited fax rule order is in violation of that, a U.S. Court of Appeals for the D.C. Circuit panel ruled Friday, with one judge dissenting. In the opinion, written by Judge Brett Kavanaugh, the court said the act requires an opt-out notice on unsolicited fax ads, but it doesn't do the same for solicited ones, with Congress clearly demarcating between the two. It said the FCC defense "has it backwards" in suggesting an agency can take an action as long as it's not prohibited by Congress: "Congress has not authorized the FCC to require opt-out notices on solicited fax advertisements. And that is all we need to know to resolve this case." The D.C. Circuit ruled the order vacated and remanded to the agency and dismissed petitions challenging FCC waivers given to fax ads sent before April 30, 2015, as moot. Raymond Randolph also joining in the majority decision. Numerous businesses challenged the rule (see 1408040030). In a dissent, Judge Cornelia Pillard said the FCC was reasonable in deciding opt-out notices are needed on all fax ads and that the court's opinion will put extra burdens on recipients trying to control their fax traffic, "precisely the sort of anti-consumer harm Congress intended to prevent." In a statement, Chairman Ajit Pai said the ruling "highlights the importance of the FCC adhering to the rule of law." He said he dissented from the 2014 order reaffirming the notice requirement (see 1410300047) "because, as I stated at the time, the agency’s approach to interpreting the law reflected ‘convoluted gymnastics.’ The court has now agreed that the FCC acted unlawfully. Going forward, the Commission will strive to follow the law and exercise only the authority that has been granted to us by Congress.” With the ruling, the D.C. Circuit "has shown that it is willing to take a hard look at the FCC’s [Telephone Consumer Protection Act] decisions, especially when they are difficult to square with the statute’s text or the practical realities that businesses face," said telecom lawyer Mark Brennan of Hogan Lovells, adding that there now will be increased attention on ACA v. FCC, "another TCPA case pending before the D.C. Circuit that involves the FCC’s interpretation of the term ‘automatic telephone dialing system’ and framework for calls to reassigned wireless numbers.” Friday's decision "reconfirms the proper and appropriate reading of the law," Commissioner Mike O'Rielly said in a statement. "It also signals that the court is willing to call the Commission to task for inappropriately creating authority not provided by Congress. I can only hope this view will be applied elsewhere, such as in the court's other case involving TCPA overreach.”
With space primed to get more crowded with non-geostationary orbit (NGSO) satellite traffic, satellite operators and regulators increasingly will contend with collision and spectrum interference issues, experts said in interviews. A chief problem is that conjunction warnings to operators about possible collisions will go up exponentially due to that traffic, making it tougher to determine which possible collisions are the most likely and need addressing, said Secure World Foundation Program Planning Director Brian Weeden.
Creation of gigabit opportunity zones got tentative bipartisan support from some lawmakers, FCC Chairman Ajit Pai said at American Cable Association event Thursday, adding he hopes to see such zones incorporated into any national infrastructure spending plan or as a stand-alone. He has pushed the idea for these zones -- featuring tax breaks to encourage private-sector gigabit broadband deployment -- for months (see 1609130061). Pai said that with infrastructure investment being a top national priority, the agency is particularly focused on looking at rules to see what can be eliminated or revised so as to encourage infrastructure-related investments. He said the agency is reviewing options for how to revisit Communications Act Title II classification of broadband. "We want every consumer … to have that open internet experience," Pai said. "But networks need incentive to invest and innovate." He said he had no idea of the status of the draft order on circulation removing the network overbuild condition on Charter Communications (see 1702240029). Pai said he hasn't talked with other commissioners about it, though he supports the revamping because the overbuild requirement "accentuates the digital divide." The cable industry crowd repeatedly applauded Pai, a marked contrast from the frost between the industry and previous Chairman Tom Wheeler (see 1605200037). "We don't view you as an enemy," Pai said, because Washington “recognizes this is the challenge of our time -- building a digital infrastructure across this country" -- and cable ISPs need incentives to make those investments. The FCC now has more focus on cable industry economic freedom, Macquarie analyst Amy Yong wrote investors Thursday. Commissioner Mike O'Rielly, speaking before the ACA this week, was clear that some previous FCC rulings could be reopened and amended, such as the Title II ban on paid prioritization by ISPs (see 1703290026), Macquarie said. With net neutrality rules likely to be rolled back, providers will have more options for favoring or prioritizing content, but removing such barriers benefits consumers by letting providers enhance their services, Macquarie said. Asked about future video regulation issues, Pai said the current independent programming NPRM has keyed up some of these issues and will "hopefully ... give us a better sense of what's going on in the marketplace." He said the commission is "trying to figure out the appropriate role for the FCC ... in this space."
The FCC should adopt an “eliminate-two-regulations-for-each-one-adopted” model as President Donald Trump is requiring for executive agencies, Commissioner Mike O’Rielly said Wednesday at an American Cable Association event. The agency has other routes for reviewing rules, but O'Rielly said it has "plenty of rules we can strike without undermining ... consumer protection."
The Trump administration's choice to head DOJ antitrust enforcement likely will be a textbook Republican enforcer, focused on the agency taking a light regulatory touch, antitrust experts and people who know nominee Makan Delrahim told us. Delrahim -- whose nomination the White House announced Monday evening -- “is not a radical," and is more in line with the types of antitrust appointees seen under the George W. and George H.W. Bush administrations, said Allan Van Fleet, an antitrust lawyer at McDermott Will, Tuesday. "I think he’ll be a traditional [antitrust head], slightly to the right of center." Delrahim, deputy counsel to the president, didn't comment.
Citing broad support for letting U.S. devices receive Galileo signals (see 1702220042), T-Mobile, Deere and Trimble are pushing for FCC approval. Meanwhile, the European Commission said it's working with Inmarsat to address the company's interference concerns. Thursday was the deadline for replies in docket 17-16 on the EC request. Instead of giving the EC a waiver, the FCC should decide the rules that require licensing of earth stations receiving signals from foreign satellites don't apply to mobile wireless user devices, T-Mobile wrote. Those rules, when adopted, were aimed at licensing of fixed services, and mobile wireless devices aren't what the FCC was contemplating then, it said, saying any protection of Galileo signals should mirror the protections given GPS. Deere and Trimble said the FCC should reject concerns about adjacent-band interference, since Galileo has transmitted in the 1559-1591 MHz band since 2006 without any reports of interference to systems operating below 1559 MHz. They said the waiver would boost positioning, timing and navigation service accuracy and dependability since Galileo could back up GPS. Inmarsat will do measurements to better assess how the Galileo system might affect its service, with the company and EC having agreed that if there's demonstrable harm to Inmarsat service the two parties will coordinate bilaterally to minimize the effects, the EC and Inmarsat wrote.
Higher Ground (HG) doesn't understand possible interference issues arising from its planned satellite earth station network for various broadband applications, with its "deficiencies in the relevant physics and engineering" putting fixed services (FS) at risk, said the Fixed Wireless Communications Coalition in an FCC International Bureau filing Tuesday. FWCC said HG's promise to comply with out-of-band emissions limits -- in response to concerns raised about adjacent channel interference -- is "troubling" since those are different problems. The coalition said HG assertions that low signal strength and small likelihood of proximity to an FS station means low risk of adjacent channel interference have no analysis to back them up. It said HG shows deficient technical understanding when it tries to argue there won't be interference from unwanted reflections in the environment. The filing responded to an HG ex parte filing earlier this month on meetings between CEO Rob Reis and International, Wireless, Public Safety and Homeland Security bureau and Office of Engineering & Technology representatives about FCC authorization of its earth stations and the subsequent opposition (see 1702100055). The firm argued the earth station transmit power levels will be a hundredth of point-to-point microwave stations' and that its software will let an earth station transmit only if its emissions are at least 6 dB below thermal noise at an FS receiver in line of sight. The Tri-State Generation and Transmission Association in filings Monday (see here, here and here) said it opposed HG's use of 5925-6425 MHz band, which it said could interfere with 6 GHz microwave paths. HG outside counsel Adam Krinsky of Wilkinson Barker -- echoing language in HG's consolidated opposition to the applications for review filed by FWCC, Enterprise Wireless Alliance, Utilities Technology Council and APCO -- emailed us Tuesday that the FCC, after more than 18 months of dialogue with the company and numerous demonstrations, concluded its interference protection regime "provides necessary safeguards against harmful interference and granted Higher Ground’s application. The applications for review are based on ‘what if’ speculation, they don’t provide any technical analysis or support, and they disregard the Order’s finding.” FWCC in a reply Tuesday said the only proof HG's system will prevent interference comes from the firm's statements. With no one ever before having done unilateral coordination of mobile transmitters among fixed receivers, "the stakes here warrant the Commission asking for more in the way of assurance than a further repetition of HG's own claims," FWCC said.
Whether the Supreme Court takes up FilmOn X's legal fight to be allowed to stream broadcast programming could hinge on a U.S. Court of Appeals for the D.C. Circuit or 7th Circuit ruling, now that the 9th Circuit on Tuesday reversed a lower court ruling that was in FilmOn's favor, legal experts told us. "The decision is a significant setback for streaming services," emailed Rodney Smolla, Delaware Law School dean and writer of an amicus brief in the case on behalf of the broadcaster and copyright holder plaintiffs. The 9th Circuit decision plus the Supreme Court's 2014 Aereo decision means "all the bargaining chips are now owned by the copyright owners, which is likely what Congress intended," he said.
The FCC under Chairman Ajit Pai almost surely will look to deregulate, or at least loosen, media ownership rules, but is unlikely to touch retransmission consent or other negotiation rules or to seek to extend agency authority over over-the-top provision, experts told us. Video regulation isn't a top priority for Pai, who seems much more focused on broadband deployment and on internal processes, TechFreedom policy counsel Tom Struble emailed us. Proof of that is Pai's removal of the set-top box order from circulation and that he hasn't taken up any video regulation matters since taking over, Struble said.
The FCC eighth floor could decide on a draft order removing the network overbuild condition on Charter Communications within a few weeks, Commissioner Mike O'Rielly told us Thursday. He said he hadn't voted on the order on circulation yet and was still reviewing it. O'Rielly was critical of the build-out condition in the 2016 order approving Charter's buys of Time Warner Cable and Bright House Networks (see 1605100050), and told us his focus is on the details of how to change the order. He didn't elaborate on specifics of the draft. American Cable Association, NTCA and the Competitive Enterprise Institute petitioned on Charter's overbuild condition (see 1606100043).