The Supreme Court declined to review the prior FCC's 2015 net neutrality order, which was upheld by the U.S. Court of Appeals for the D.C. Circuit. Justices 4-3 denied cert petitions appealing affirmation of the Communications Act Title II order, with Chief Justice John Roberts and Justice Brett Kavanaugh not participating, said the order list Monday deciding Daniel Berninger et al. v. FCC, No. 17-498. It noted Justices Clarence Thomas, Samuel Alito and Neil Gorsuch would grant the petitions, vacate the D.C. Circuit's judgment and remand to that court with instructions to dismiss the cases as moot under U.S. v. Munsingwear. The solicitor general, backed by ISPs, had urged justices to take that course, given the current FCC's order undoing Title II net neutrality regulation, which is being challenged in the D.C. Circuit (see 1810030036). ISP groups and some others Monday said they weren't surprised by cert denial. “Once the current FCC repealed the 2015 Order, almost all parties -- including NCTA -- agreed that the case was moot," said NCTA: "Today’s decision is not an indication of the Court’s views on the merits but simply reflects the fact that there was nothing left for the Court to rule on.” Net neutrality advocate Andrew Schwartzman emailed, "This was the likely outcome and doesn't change things much, if at all. However, had the court vacated the 2016 DC Circuit opinion, it would have precluded the petitioners in the current DC Circuit case from relying on the earlier decision as precedent." The current order "remains the law of the land and is essential to an open internet," said USTelecom President Jonathan Spalter. CEO Matt Polka said the American Cable Association will continue "to defend the [current] order in federal court and fight impermissible interference with the national regime by the states." Unless Congress legislates, "the ping-pong match over the FCC's authority will continue," said TechFreedom President Berin Szoka. The group noted three Republican appointees would have vacated the 2015 order; Kavanaugh dissented from the D.C. Circuit affirmation while on that court; and Roberts was recused, "apparently because of prior" cable stock holdings. “Although the current FCC repealed [the] net neutrality rules in 2017 in a fit of partisan overreach ... we will continue to fight until net neutrality is once again the law of the land," said Sen. Ed Markey, D-Mass. Commissioner Jessica Rosenworcel tweeted: " It wasn't enough for this @FCC to roll back #NetNeutrality. It actually petitioned the Supreme Court to erase history and wipe out an earlier court decision upholding open internet policies. But today the Supreme Court refused to do so." Free Press and Public Knowledge welcomed the decision (here and here).

A draft FCC jurisdictional separations freeze item is an order, a spokesperson told us Friday, describing an item on the circulation list. An NPRM proposed to extend by 15 years the freeze on federal-state separations rules apportioning rate-of-return telco regulated costs and revenue between interstate and intrastate jurisdictions (see 1807180059), drawing objections from state regulators and support from telco interests (see 1808280021). The spokesperson noted the circulation list included a draft order on a Sandwich Isles petition for reconsideration of a December 2016 order requiring the company repay $27 million in "improper" USF support, which was released with a proposed $49 million fine. It also included a draft item on Spectrum Networks Group "Applications and Waiver Request to Allow it to Provide Private, Internal Machine-To-Machine Communications to Businesses on 900 MHz Business/Industrial/Land Transportation Channels."

The FCC confirmed the Lifeline national verifier (NV) hard launch in six states Friday. The commission "is not aware of any problems so far, but the agency and [Universal Service Administrative Co.] will be watching closely to be sure that the National Verifier is determining eligibility appropriately for consumers in those six states," emailed a spokesperson. There weren't any issues in Colorado or Montana, state commission spokespersons said. It’s too early to know whether the hard launch is going smoothly, given limitations during the soft launch and unresolved FCC issues pending, said an industry official. Lifeline providers and a NARUC official last month objected to hard launch in Colorado, Mississippi, Montana, New Mexico, Utah and Wyoming without an electronic interface for carriers and access to databases to check consumer eligibility (see 1810040045). Q Link Wireless petitioned the FCC for waiver to use alternative means for NV confirmation of applicant eligibility in hard-launch states before agency resolution of the provider's previous petition to implement application programming interfaces permitting USAC-carrier machine-to-machine communications during enrollments. NV's online portals are "impossible for Q Link to access without an API," it said, posted Thursday in docket 17-287.

Lawsuits challenging the FCC September wireless infrastructure order targeting state and local barriers will be heard by the 10th U.S. Circuit Court of Appeals, based on random selection, the U.S. Judicial Panel on Multidistrict Litigation said Friday after the FCC Thursday notified the panel about six lawsuits. It’s the circuit where Sprint sued (see 1810290049). Local government groups filed three lawsuits in the 9th Circuit (see 1810310056); Verizon sued in the 2nd Circuit and Puerto Rico Telephone in the 1st Circuit.

The dynamic sharing framework the FCC adopted for the 3.5 GHz citizens broadband radio service band may not translate elsewhere, said a Friday report to Congress. The FCC responded to instruction in the Spectrum Pipeline Act and earlier took comment on rule changes and on proposals to open 1 GHz of spectrum between 6 GHz and 56 GHz (see 1809120043). Commissioners didn’t vote on the 14-page report, by the Wireless Bureau and Office of Engineering and Technology. Work on the 3.5 GHz band is bearing fruit, the report said. “Intended to protect incumbent uses while encouraging innovative technologies and services," it "has fostered significant investment in the 3.5 GHz band,” the FCC said. “Most comments … coalesced around the adoption of a wait-and see-approach before the Commission decides to apply these techniques elsewhere.” Groups like the WinnForum are looking at similar sharing in other bands, the FCC said. “It is too soon to know whether other bands may be suitable for licensed or unlicensed use based on the techniques used in the 3.5 GHz band.” The 3.5 GHz rule changes were approved 3-1 at the October commissioners' meeting (see 1810230037). The staff report defends the changes. They "set the stage to: (1) promote investment in the band; (2) encourage rapid and robust network deployment; and (3) protect federal and non-federal incumbent users,” the report said. On proposals to reallocate spectrum for broadband above 6 GHz, the regulator “has made spectrum available for unlicensed use of the 64-71 GHz band and licensed fixed and mobile use in the 24 GHz, 28 GHz, 37 GHz, 39 GHz, and 47 GHz bands,” the report said. It notes the 6 GHz NPRM also approved in October (see 1810230038). The document said fixed service operators “heavily” use that band. “More than 27,000 licenses are issued for point-to-point operations” there, it said: “This proceeding has not been finalized and may not ultimately require use of automated frequency control systems throughout the band or involve a full one gigahertz of spectrum."

A CLE heard criticism of FCC broadband mapping inaccuracies and of an AT&T executive appearing to some to celebrate a municipal network's struggles. Many at Thursday's Wolters Kluwer event agreed the maps need improvement, including Mississippi Public Service Commission Chairman Brandon Presley (D). He has a related draft NARUC resolution (see 1810310035). "The maps are completely inaccurate" and some providers claim to have service in places where they don't, he said: "We’re finding problems throughout our district," which covers about a third of Mississippi. Best Best law firm's Gerard Lederer, who represents municipalities, said "we simply would like to have facts. ... We really need to know where to fill in the gaps. If you don’t have agreement on that, I’m not sure how you can pursue the goal" of universal-type availability. The FCC has defended its process, and declined to comment now. An Oct. 24 tweet from AT&T Mississippi President Mayo Flynt that "another one bites the dust" on Opelika, Alabama, selling its "broadband business for big loss" also drew scrutiny Wednesday. USTelecom Vice President-Law and Policy Diane Griffin Holland said that, speaking personally, "We should not necessarily poke fun at or have a visceral reaction where a municipality seeks to take the initiative to deploy broadband." She thinks public-private partnerships could "take sort of the best of both worlds" to perhaps get "us closer to ubiquitous deployment." Mayo was highlighting AT&T's long-held position that "government-owned networks typically fail at great cost to taxpayers,” a spokesman said. “A number of municipal broadband efforts have failed over the last several years, often at great cost to local taxpayers," a USTelecom spokesman also noted. The group's "position has long been that bringing broadband to unserved areas is essential to closing today’s digital divide," he said. "The best way for municipalities to aid in this effort is through lowering the barriers to private sector deployment and partnering with private companies." As government is funding some projects to fill in digital gaps, some sought higher speeds. Speeds of 10/1 Mbps downstream/upstream may not be sufficient, and the Utilities Technology Council seeks 25/3 or higher, said General Counsel Brett Kilbourne. Many customers of utilities in sparsely populated areas buy 50 Mbps and above, even when slower speeds are available, he said. "Folks in rural areas want high speeds just as much as folks in urban areas."

Dish Network replied to the FCC that T-Mobile buying Sprint looks worse now than when it was announced. Many others also replied, opposing the transaction (see 1810310051). “Applicants have not come close to demonstrating that the merger as currently proposed would serve the public interest,” Dish said in docket 18-197. “The Opposition, as well as the internal documents produced by the Applicants, set their case back significantly.” The companies don’t deny the deal will mean higher prices, Dish said: “They argue that consumers should not care about the higher prices they will pay for their plans because they allegedly will have more data and greater speeds at their disposal.” Regional carrier C Spire said it “simply is asking the Commission to follow its own precedent by putting concrete conditions in place to guarantee that the vague assurances New T-Mobile offers to competitive carriers will be realized if the Commission permits the Proposed Transaction.” C Spire said: “’Trust us!’ is not an adequate public interest showing.” The deal “raises serious concerns about further market concentration in a market in which the four leading incumbents -- T-Mobile, Sprint, Verizon, and AT&T -- account for around 98 percent of [U.S.] mobile wireless service revenues,” commented the AFL-CIO. New America’s Open Technology Institute said the deal would create “a consolidated wireless market that is conducive to coordinated effects between the remaining three dominant providers” -- it "would not only eliminate a significant competitor, thereby making it easier to reach a consensus among competing firms and sustain coordination, but also create a more homogeneous market structure.” OTI disputed claims Sprint needs the deal to survive financially: "Both companies have years of statements to investors and the public claiming that they are more than capable and in the process of preparing their mobile 5G networks across the country.” “Applicants offered an inadequate response to NTCA’s concerns about the public interest harms arising out of the proposed transaction, including most notably the negative impacts upon consumers in rural areas,” the group said, asking the deal be denied. But the Enterprise Wireless Alliance said the parties "provided ample documentation demonstrating that approval of their request would promote competition in the nationwide commercial wireless marketplace and accelerate the deployment of a 5G network covering much of the population of the country."

The Supreme Court debated the wisdom of directing Google’s $8.5 million data privacy settlement to charitable and academic organizations rather than to alleged victims (see 1805010051). During oral argument Wednesday in Frank v. Gaos (docket 17-961), Chief Justice John Roberts suggested Google could have awarded the money to organizations it hadn't contributed to in the past, alluding to criticisms from Ted Frank, litigation director for the Competitive Enterprise Institute, which challenged the settlement. New Justice Brett Kavanaugh asked whether it would be better to have a lottery or a pro rata system to ensure an injured party benefits. Justice Samuel Alito’s questioning suggested the deal awards a lot of money to attorneys, the class-action members get nothing, and groups potentially partial to Google benefit. Justice Ruth Bader Ginsburg suggested an indirect benefit outweighs what class members could have gotten. Frank told her each claiming class member “probably could have gotten between $5 and $10” with typical claims rates. Justice Sonia Sotomayor said of the settlement, “It seems like the system is working.” Google attorney Andrew Pincus said the question is whether the cost of distributing the money means the class gets essentially nothing, making an indirect benefit better.

President Donald Trump signed legislation Wednesday allowing the Patent and Trademark Office to set patent and trademark fees for eight years. HR-6758 also requires the PTO director submit legislative recommendations to Congress “to increase the number of women, minorities, and veterans who participate in entrepreneurship activities and apply for patents.” The Senate had sent the law to Trump earlier this month after passing it under unanimous consent. The PTO study would be with the Small Business Administration.

FCC "systems and some website content" will be unavailable Saturday, 8 a.m.-4 p.m., “for annual emergency readiness testing,” says a banner running atop the fcc.gov this week. "This is a test to ensure agency systems resiliency should we experience a network outage," a spokesperson emailed. "While some public facing applications will be inaccessible," the electronic comment filing system and the electronic document system "will remain available; however, if any functions rely on internally hosted applications, those applications and functions will not be available.”