Challenges to FCC wireless and wireline infrastructure orders will be paused, pending review by a special master, the 9th U.S. Circuit Court of Appeals ruled Wednesday. Challenges by Sprint and 11 others to a September order restricting local fees and reviews of small-cell siting applications were consolidated under Sprint v. FCC, No. 19-70123, said an order (in Pacer) of Judges Richard Tallman and Mary Murguia. The September order case will be assigned to the same merits panel that reviews Portland and American Electric Power Service challenges to an August ruling/order barring local infrastructure moratoriums and revising pole-attachment processes. The latter two were also consolidated under Portland v. FCC, No. 18-72689, said another order (in Pacer) of the two judges. The court referred all the cases to its special master, Appellate Commissioner Peter Shaw, for a case management conference he will schedule. “The special master shall consider any issues he deems appropriate to manage the petitions effectively, including but not limited to the development of a briefing plan for the above-listed twelve petitions,” said the first order. The judges granted in part the FCC’s motion, opposed by localities (see 1903070059), to hold the Sprint case in abeyance. Noting the FCC's request to continue a stay in the Portland case, the second order stayed the now-consolidated case pending the conference. “Proceedings in these consolidated petitions other than the case management conference are stayed pending [that] conference,” said both orders: "Briefing is suspended pending further order of the court following the ... conference." The decisions mean “we’re in abeyance for what I hope will be a short period of time,” emailed local government attorney Ken Fellman. “Given the number of parties, different case filings and complexity of the issues, we’ve thought that a case management conference would be necessary to delineate the process of getting from here to a decision.” Local governments are pleased because the FCC had "asked for an indefinite abeyance," but the court "simply delayed matters until after the scheduling issues can be considered at a case management conference," said Best Best attorney Joseph Van Eaton. "We are hopeful that the process established by the 9th Circuit will result in expedited resolution of this appeal. At the very least, we suspect the FCC will be asked to explain why it has not decided the pending reconsideration petitions." The agency didn’t comment.

The FCC updated rules for fixed TV white spaces devices, in an order approved 5-0 Tuesday and released Wednesday. It said the devices covered are mostly used by wireless ISPs, schools and libraries for wireless backhaul. The new rules require fixed white space devices include a “geo-location capability such as GPS and eliminate the option that permitted the geographic coordinates of a fixed device to be determined by a professional installer.” External geo-location sources by a fixed device are OK “when it is used at a location where its internal geo-location capability does not function, such as deep inside a building.” The agency requires devices to recheck geographic coordinates at least once a day and report the coordinates to the white spaces database. The regulator sought comment on changes sought by NAB in a 2016 NPRM (see 1605060066). It didn't address a request by Microsoft last year seeking other changes (see 1802050031). “We do not intend to prejudge those requests in this item and may consider them in a future notice of proposed rulemaking,” the FCC said. Changes won’t be instantaneous. The agency will permit continued marketing of previously approved devices that don't comply with the new rules until 18 months after the effective date. Wireless ISPs got a change they sought, in an accompanying order on reconsideration. The FCC now will permit white spaces antennas of up to 100 meters in less congested areas, versus the 30-meter limit. “This action will allow for improved wireless broadband service to persons in rural and other underserved areas,” the FCC said. “A 100-meter antenna height above ground level limit will benefit wireless broadband providers and users by permitting antennas to be mounted on towers or other structures at heights sufficient to clear intervening obstacles such as trees and hills that would attenuate the transmitted signal, thereby increasing the range at which the signal can be received.” Requiring "automatic geolocation in white spaces devices will help increase accuracy and protect television viewers from harmful interference,” a NAB spokesperson said. This makes vacant and unlicensed TV channels “more useful for deploying better and more affordable broadband in rural America,” said Michael Calabrese, director of the Wireless Future Program at New America. “The commission rejected efforts by broadcasters to try to deter the use of [TV white spaces] for rural broadband in furtherance of their goal to monetize public airwaves they neither paid for nor actually use.”

Comedian John Oliver's robocalls to FCC members' offices likely are legal, telecom lawyers said. The "pre-recorded message satisfies the first element" of a Telephone Consumer Protection Act standard requiring prior consent, blogged Kelley Drye's Steve Augustino and Jennifer Rodden Wainwright. But TCPA restrictions don't apply to the robocalls because HBO's Last Week Tonight host is calling landline phones (autodialed calls to wireless phones are restricted), and isn't introducing an advertisement or engaged in telemarketing, the attorneys suggested Monday in a post their law firm also emailed Tuesday. "Consent is not required for the calls that Oliver is making, and revocation of consent similarly is not relevant" here, they added. "Oliver rightly observed during his segment that the National Do Not Call Registry only applies to telemarketing calls, so even if the FCC commissioners registered their office phone numbers on the National Do Not Call Registry, Oliver’s calls to them would not be unlawful." Some commissioners also have indicated the calls are legal (see 1903150061). The FCC declined to comment Tuesday on the calls' lawfulness, and HBO didn't comment. At least some of Oliver's calls continue to commissioners' offices every 90 minutes as the TV host said would occur.

Sprint urged deferring Lifeline de-enrollments and national verifier "hard" launches until Universal Service Administrative Co. gains greater automated access to Medicaid and Supplemental Nutrition Assistance Program databases. The Lifeline provider said USAC has negotiated such access to SNAP, Medicaid and Federal Public Housing Assistance program databases in only eight of the 27 states and territories where the NV is in use (16 hard launches where it's mandatory and 11 soft launches); in 16 it has only FPHA access. The carrier said more than 60 percent of current Lifeline applicants demonstrate eligibility through SNAP and Medicaid participation, and only 0.6 percent through FPHA. "In 11 jurisdictions, the NV will launch without a connection to a state [SNAP or Medicaid] database due to cost effectiveness constraints,” the provider filed, posted Tuesday in FCC docket 11-42. That forces manual reverification that's "highly problematic and can result in large numbers of customer de-enrollments due to extremely low end user response rates," Sprint said. "The mass de-enrollment of potentially millions of otherwise-eligible Lifeline subscribers because of a difficult and ineffective reverification process clearly is not in the public interest." It backed refining database search criteria, enhancing feedback on reverification failures, establishing "consistent, transparent application of eligibility criteria" and temporarily suspending Lifeline recertification in remaining non-NV states. The National Lifeline Association urged the NV to "incorporate checks or 'dips' against the national CMS/Medicaid database, as well as any additional state SNAP databases that may come online, prior to any deenrollments." NaLA voiced "appreciation for recent stakeholder engagement toward implementing" an NV application programming interface solution to allow providers "to help consumers navigate the verification process." The FCC and USAC didn't comment.

Big tech companies, plus Broadcom and the Public Interest Spectrum Coalition (PISC), separately told the FCC they fear nothing from indoor, low-power unlicensed use of 6 GHz spectrum and shouldn’t require frequency coordination. Replies were due Monday on an NPRM, in docket 18-295, with some other commenters urging caution (see 1903180047). “Comments make it clear that in the vast majority of locations, times, and configurations, [radio local access networks] would not be positioned to even potentially cause harmful interference to incumbents,” the tech companies said. Some commenters raise concerns, they said: “With few exceptions, these commenters either provide no empirical support for these claims or repeat flawed arguments that have already been presented and addressed in prior phases of this proceeding.” The filing was signed by Apple, Broadcom, Cisco, Facebook, Google, Hewlett Packard Enterprise, Intel, Marvell Technology, Microsoft, Qualcomm and Ruckus Networks. Broadcom separately said fixed-service proponents warn of a threat that doesn’t exist. “FS interests now focus on unlikely corner-case interference scenarios in arguing for additional regulation, Broadcom said: “In the vast majority of situations, however, RLANs will not be positioned to raise any harmful interference concerns at all. And an analysis of FS system operations shows that if the unrealistic combination of improbable events conjured by FS interests somehow were to occur, it would not degrade FS operations in the real world.” The record shows “diverse and strong support” for allowing unlicensed use across all 1,200 MHz from 5925 to 7125 MHz, and “broad support” for low-power and indoor-only use in the U-NII-6 and U-NII-8 segments without a coordination requirement, PISC said. “Base policies on risk-informed interference assessments and not unrealistic worst-case scenarios.” The Open Technology Institute at New America, Consumer Federation of America, Public Knowledge, Consortium for School Networking, Access Humboldt and X-Lab signed. They advised caution. NAB warned “no commenter has proposed an effective mechanism for protecting important broadcast auxiliary services operations” in the U-NII-6 and U-NII-8 bands. “Uncoordinated unlicensed use” here “risks crippling interference to licensed BAS services,” NAB said. Given the “already diverse and critical use of the spectrum, it is not surprising that … comments question the viability of adding millions or possibly billions of unlicensed devices into the band without causing interference to higher priority services that already rely on the spectrum,” said the National Public Safety Telecommunications Council.

Many asked the FCC to delay broadband performance testing by Connect America Fund recipients, scheduled to begin July 1. AT&T, ITTA and the Wireless ISP Association discussed with an aide to Chairman Ajit Pai a petition for reconsideration of CAF performance metrics filed by USTelecom, WISPA and ITTA. Despite "productive meetings," the associations remain "concerned by the mismatch between the Order’s treatment of latency vs. speed testing as well as the harsh compliance framework adopted for even minor misses of latency and speed targets," filed AT&T, ITTA and WISPA in docket 10-90 Monday, noting USTelecom agrees. "Given the work still to be done to finalize the performance metric rules, we strongly urged the Commission to delay" testing. The order "adopts a reasonable one-test-per-hour and 80/80 compliance standard for speed testing, but by contrast requires one-test-per-minute for latency and maintains the prematurely adopted 95% compliance standard," they added: Latency doesn't fluctuate "to the degree that requires such granular testing."

FCC failure to act on petitions to reconsider two summer infrastructure orders is delaying the 9th Circuit U.S. Court of Appeals cases on the “legal soundness" of the August and September rulings, local governments said, posted Monday in dockets including 17-79. NATOA, the National League of Cities and city officials met Wednesday with the Wireline Bureau. Localities urged the FCC to reject requests to extend to wireline providers the interpretation of Section 253 from the challenged September order, which they said considered “unique characteristics and economics of small wireless facilities deployment” and doesn’t apply to wireline. The FCC should continually review appropriate broadband speeds for rural areas by carriers getting federal support, including upload speeds important to businesses and remote workers, said local governments. Attendees included NATOA President and Boston Broadband and Cable Director Mike Lynch, Councilmember Andy Huckaba of Lenexa, Kansas; Mayor Stephanie Piko of Centennial, Colorado; Councilmember John Fogle of Loveland, Colorado; Council Member Jesse Barlow of State College, Pennsylvania; and Vice Mayor Corina Lopez, Council Members Benny Lee and Victor Aguilar, and City Manager Jeff Kay of San Leandro, California.

The FCC added language on privacy and the effect on consumers in the Lifeline program, based on side-by-side comparison of the draft Further NPRM and FNPRM on 911 vertical location accuracy, as released Monday. Commissioner Jessica Rosenworcel dissented Friday, while Commissioner Geoffrey Starks secured changes (see 1903150067). “We seek comment on the appropriate data privacy and security framework for z-axis data,” the FNPRM said. “We seek comment on whether use of z-axis data should be limited to 911 calls except as otherwise required by law.” Neither question was in the draft. The rulemaking asks whether a proposed 3-meter z-axis metric “will provide adequate vertical location accuracy protection for consumers who participate in the Commission’s Lifeline program.” It seeks comment “on the extent to which mobile phones provided to consumers as part of the Lifeline program have the capability, through barometric pressure sensors or other means, to be located within a 3-meter z-axis metric” and “how to ensure that vertical location protections extend to and include users of the Lifeline program.” The FNPRM asks more generally about potential turnover rates for wireless handsets and “features of devices likely to be available and in use by the compliance dates established in our rules.”

The FCC finalized relocation of its equal employment opportunity team from the Media to the Enforcement bureau, said Friday's Federal Register. Commissioners voted in July to approve (see 1807240049). The agency said Friday it now has House and Senate Appropriations committees and Office of Management and Budget OKs and has worked out terms with the National Treasury Employees Union.

Neither Charter customers nor the Competitive Enterprise Institute has standing to challenge the broadband network overbuild conditions the FCC put on the company's buys of Time Warner Cable and Bright House Networks or the agency order rejecting CEI's petition for reconsideration, the regulator said in a docket 18-1281 appellee brief Thursday with the U.S. Court of Appeals for the D.C. Circuit. The named individual customer appellants either didn't have higher monthly broadband bills or haven't shown their higher bills are due to the overbuild requirements, and they never took part in the agency proceeding, so denying their petition was well within its rules, the FCC said. CEI hasn't shown a link between its supporters and the outcome of this litigation and hasn't identified a member with a concrete injury, it said. Sam Kazman, general counsel for CEI -- which argued the FCC abused its discretion (see 1901150049) -- told us Friday the agency focus on standing wasn't unexpected and is indicative of wanting to avoid discussion of the merits about conditions "to infinity and beyond." He hopes the court "will see through that ruse."