Howard Buskirk

Designated entities (DEs), venture capitalists and rural groups are pressing the FCC for substantial changes to coming designated entity rules. Unless the FCC acts the next few days Council Tree, the Minority Media & Telecom Council (MMTC) and Bethel Native Corp. are expected to ask an appeals court to stay the order, set to take effect Sat. If the rules do kick in, they would apply to an advanced wireless services auction that starts Aug. 9. Sources disagree whether Chmn. Martin will yield to the pressure.

Documents of commission formally adding Robert McDowell as the 5th FCC member awaited White House action late Wed., ready for signing any time. A complication, one source said, was Senate confirmation last week of Brett Kavanaugh, White House senior assoc. counsel, to the U.S. Appeals Court, D.C. Kavanaugh’s duties included getting the White House to act on such documents as the McDowell paperwork. The Senate last week voted by unanimous consent to confirm McDowell to the Commission (CD May 30 p1).

The FCC is poised to impose a mandate on VoIP providers that they pay into the Universal Service Fund (USF) and also may raise significantly the “safe harbor” for wireless carriers. FCC Chmn. Martin began to circulate a USF item last week, timed to the June 15 agenda meeting -- likely the first with new Comr. McDowell.

Addition of Robert McDowell as a 3rd Republican member of the FCC likely will mean Chmn. Martin will move within months on key items on which he needs an extra vote but over which he has been unable or unwilling to negotiate with Democrats. The Senate confirmed McDowell Fri. by unanimous consent after a series of holds were lifted.

Delaying the upcoming advanced wireless services auction, but not staying the rules themselves “serves no purpose,” designated entity Council Tree told the FCC in a filing. The FCC last week delayed the AWS auction until Aug. 9, but has yet to act on petition by Council Tree and 2 other DEs protesting changes to unjust enrichment rules prior to the auction (CD May 8 p2). “Providing additional time for prospective bidders to adapt to rules that are unsupported by the record, unclear in their application, and inconsistent with statutory requirements simply defers the problem without resolving it,” said Council Tree. The DE last week met with Gen. Counsel Sam Feder and other top officials at the agency. One source said Council Tree was responding to the delay of the auction. “Does that address the issue? No, it defers it,” the source said: “The Commission has increasing downside exposure now that the Hill has started to weigh in, now that this has become a public matter and it seems like it’s going to proceed into the court unless they do something.”

The FCC air-to-ground auction appears to be essentially over, with AirCell the all but guaranteed winner of the key 3 MHz license to offer wireless broadband service on commercial airliners. The firm’s high bid was $31.3 million. AirCell, which already offers Internet services to the general aviation market, is expected to have little to say for several weeks after the auction ends on its plans for building out a network because of anticollusion rules.

The FCC might issue another omnibus indecency order that builds on a landmark March order (CD March 17 p1) addressing complaints against nearly 50 programs, Enforcement Bureau Chief Kris Monteith told an FCBA seminar Wed. The thousands of indecency complaints before the Commission remain an agency priority, along with homeland security, she said.

The FCC won’t investigate whether phone companies violated consumer privacy by cooperating with the National Security Agency to give the agency access to phone records, Chmn. Martin said in a letter to Rep. Markey (D-Mass.). Markey, a senior House Democrat on telecom issues, had called for an investigation of whether phone companies violated Sec. 222 of the Communications Act, which requires carriers to protect the confidentiality of customer information (CD May 16 p1).

Sprint will be quicker to reimburse some public safety systems for planning costs involved in 800 MHz rebanding, said the 800 MHz Transition Administrator, major public safety groups and Sprint Nextel Tues. Planning reimbursement has been a sticking point as returning of public safety radios under a 2004 800 MHz rebanding agreement begins. Public safety systems will have access to a “fast track” by which Sprint will speed approval of any licensee’s planning funds request under $55 per subscriber unit, the parties said. The TA subsequently will review handling of the requests.

The FCC’s decision to delay the start of the advanced wireless services (AWS) auction from June 29 until Aug. 9 (CD May 22 p1) is considered bad news for T-Mobile - the national carrier with the most at stake in the auction. The net effect for other potential bidders of the action late Fri. is less clear. The FCC still must address a petition for reconsideration on designated entity rules for the auction, but is generally expected not to make substantial changes to the revised rules approved in April, officials said.