The 10th U.S. Circuit Court of Appeals denied Allband Communications Cooperative’s petition for rehearing en banc (http://bit.ly/1tP9T1K) of May’s decision (CD May 27 p1) denying challenges to the FCC 2011 USF/intercarrier compensation order. No member of the original panel or judge in regular active service on the court requested the court be polled, said the 10th Circuit in a Wednesday order. The decision starts the 90-day clock on the parties to file a petition for cert, said Stinson Morrison attorney Harvey Reiter, who represented rural CLECs in the case. The petition for rehearing is not a necessary step for a petition for cert, but the motion for rehearing put the clock on hold, he said. Reiter did not know Thursday if anyone would file a petition for cert. Allband was not available for comment. Allband had petitioned (http://bit.ly/1pMYCyX) for rehearing July 7, arguing that if the order is not reversed, it would lead to the “financial destruction” of the company. Allband argued for the rehearing on a number of grounds, including that the panel decision “overlooked a major issue raised by Allband ... that the United States and its agencies may not retroactively reverse statutory or agency orders or regulations upon which entities have relied to their detriment.”

The FCC should use Communications Act Section 706 to deal with open Internet rules, but should make improvements in the section’s complaint process, representatives of the Minority Media and Telecommunications Council told an aide to Commissioner Jessica Rosenworcel Aug. 22, said an ex parte filing (http://bit.ly/1p73QAh) posted Tuesday in docket 14-28. MMTC urged the agency to create a customer-friendly complaint process modeled after one used in connection with the Civil Rights Act, in which the commission could do an initial screening of complaints and if it finds probable cause, begin expedited enforcement or mediation. Representing MMTC were David Honig, president; Nicol Turner-Lee, vice president; Jacqueline Clary, senior counsel, and Maria Lesinski, law clerk. Meanwhile, the “soundest, clearest path forward for strong open Internet protections” is through reclassifying broadband as a Title II service, with appropriate forbearance, said Sarah Morris, senior policy counsel for New America Foundation’s Open Technology Institute. That’s what she told members of the FCC general counsel’s office in a phone call Aug. 21, said an ex parte notice (http://bit.ly/1q1PXZ7) posted in the docket Tuesday. Other parties like Mozilla are proposing alternative approaches, which would rely on creating new definitions and new relationships among ISPs, Internet users and what Mozilla terms “remote hosts,” OTI said. That would be “legally riskier than straightforward reclassification,” Morris said. The agency should “refrain from alternative approaches ... that are unduly complicated or legally risky."

Harris Wiltshire has moved into some historic office space -- the 8th floor of the old FCC building, at 1919 M St. NW, said Scott Harris, the communication law firm’s chairman. The space is the same floor previously occupied by FCC commissioners and their staff. The FCC left the building, and offices in nearby buildings, in the late 1990s for its current home in the Portals building.

Given the “gravity and complexity” of the municipal broadband issue, as well as the large number of major issues being considered by the FCC, the agency should extend the comment period for petitions filed by Wilson, North Carolina, and the Electric Power Board of Chattanooga, Tennessee, by a month to around Sept. 26, said TechFreedom and several groups in a petition (http://bit.ly/1tuP3Ub) posted in dockets 14-115 and 14-116 on Wednesday. Wilson and EPB are seeking preemption of state laws restricting municipal broadband (CD July 25 p16). The groups said comment periods on several major issues are ending soon, including Comcast’s plan to buy Time Warner Cable on Aug. 25, AT&T/DirecTV on Sept. 16, the net neutrality NPRM on Sept. 10, and the broadband progress notice of inquiry on Sept. 4. TechFreedom President Berin Szoka told us he thought the FCC stacking the comment deadline for the municipal broadband petitions so close to deadlines for the net neutrality NPRM and transaction proceedings was “astonishing.” He wasn’t optimistic the commission will grant his extension request.

NAB’s court challenge to repacking provisions in the TV incentive auction rules (CD Aug 19 p1) isn’t a surprise, but shouldn’t be a “road block” to a successful auction, said AT&T Vice President-Federal Regulatory Joan Marsh Thursday in a blog post (http://bit.ly/1sXmMZD). NAB previously had made its concerns known and had “lobbied hard” when the Spectrum Act was before Congress for repacking protections, she said. The issues NAB raises are “significant and deserve careful consideration,” she said. But the auction should still take place as expected, she said. “Compromise must continue to be the hallmark of the incentive auction proceeding,” Marsh wrote. “We have to date seen a healthy and productive amount of give and take between the FCC and industry on a range of auction issues, from the band plan to the auction framework to bidding restrictions. And we believe that the issues raised by NAB can similarly be resolved -- and resolved quickly.”

The FCC Wireless Bureau seeks comment on an AT&T petition asking for a rulemaking to amend FCC rules for the C and D blocks of the Wireless Communications Services. AT&T sought revision to the construction requirement, power limits and out-of-band emission limits rules for the 2.3 GHz spectrum, and proposed a new coordination rule to protect adjacent Satellite Digital Audio Radio Service (SDARS) spectrum from harmful interference (http://bit.ly/1sDuvMr). Comments are due Sept. 22 and replies, Oct. 6, a public notice released by the bureau Thursday said (http://bit.ly/1tpXaT5).

The North American Numbering Council will meet Sept. 17, 10 a.m-2 p.m. EDT, in the FCC commission meeting room, the FCC said Wednesday (http://bit.ly/1tqvRa9). Among the agenda items is a report by NANC’s Local Number Portability Administration Working Group. Telcordia Technologies and Neustar are fighting over which will be the LNPA (CD Aug 14 p1).

Comcast, Cox Communications and Time Warner Cable got waivers to operate their existing U-NII-3 outdoor access points in the U-NII-1 band, said the FCC Office of Engineering and Technology in three orders Wednesday. “These currently deployed systems should not pose a threat of harmful interference to the incumbent services in the U-NII-1 band,” the orders said. The waivers apply only to the outdoor access points named in the companies’ applications and not to future deployments, the orders said. Comcast’s waiver (http://bit.ly/XAOFKe) covers 20,820 outdoor access points, TWC’s (http://bit.ly/VF36LP) covers 19,913 and Cox’s (http://bit.ly/VF30DL) covers 2,346, the orders said.

The FCC shouldn’t vote to pre-empt state laws in North Carolina and Tennessee restricting municipal broadband because it doesn’t have the legal authority to do so, said Matthew Berry, chief of staff to FCC Commissioner Ajit Pai, during a speech Wednesday at a National Conference of State Legislatures summit in Minneapolis. The FCC’s upcoming debate over pre-emption petitions from the cities of Chattanooga, Tennessee, and Wilson, North Carolina, will focus on the debate over legal authority rather than whether cities should “get into the broadband business” or whether the states should restrict municipal broadband, Berry said. The commission could reach a decision on the Chattanooga and Wilson petitions by the end of the year, Berry said according to the prepared text of his speech (http://fcc.us/1nba16B). The cities filed their petitions with the FCC late last month (CD July 28 p5). Berry cited the Supreme Court’s 2004 decision in Nixon v. Missouri Municipal League that the FCC didn’t have the power to pre-empt state laws restricting municipalities’ ability to provide telecom services under Communications Act Section 253 absent “unmistakably clear” legislative intent from Congress. Nixon provides courts with a two-step test for analyzing any case stemming from an FCC decision on the Chattanooga and Wilson petitions, in which courts must look at whether Congress specifically intended the FCC to pre-empt state municipal broadband laws and whether a clear statement is required, Berry said. Chattanooga and Wilson are asking for pre-emption under Section 706 rather than Section 253, but “the case for preemption is even weaker under Section 706 than it was under Section 253,” he said. Section 706 “does not come close” to meeting that burden,” so any pre-emption attempt would be “sure to meet its end in court,” Berry said. Pre-emption would bring the FCC into conflict with both Congress and state officials “who should be our partners rather than our adversaries,” he said. “We do not have the bandwidth to waste on a symbolic, feel-good effort that appears designed to appease a political constituency that is unhappy with where the FCC is headed on other issues.” The House voted last month to deny the FCC funding for municipal broadband pre-emption (CD July 17 p3). Americans for Tax Reform President Grover Norquist said in a statement that the FCC “should not waste valuable time and taxpayer dollars in futile legal wrangling. It’s none of the FCC’s business if state governments forbid cities from wasting taxpayer dollars."

AT&T and DirecTV urged the FCC to deny a petition to extend the deadline for filing initial comments and petitions on the proposed transaction between the two companies. The petition to extend the deadline by 30 days was filed by Public Knowledge and the Institute for Local Self-Reliance (http://bit.ly/1tl3TfU). None of the reasons stated by the petitioners justifies an extension of time, “and none of them explains why petitioners have not even sought to access applicants’ confidential submissions during the 68 days that have elapsed since applicants filed their public interest statement in this proceeding,” AT&T and DirecTV said in a joint opposition (http://bit.ly/1oXgqSA). Initial comments in docket 14-90 are due Sept. 16 (CD Aug 8 p11)). Petitioners will have had more than three months from AT&T’s public interest statement filing, it said. This is “more than ample time to access information about the transaction and provide meaningful input,” it said.