Supreme Court nominee Brett Kavanaugh again defended at his confirmation hearing Thursday night his dissent in the U.S. Court of Appeal for the D.C. Circuit's 2017 en banc affirmation of the now-rescinded 2015 net neutrality rules in USTelecom v. FCC amid criticism from Sen. Amy Klobuchar, D-Minn. She also queried Kavanaugh on his USTelecom dissent during an earlier confirmation session. He faced questions about his views on Chevron deference by courts to agency expertise and on tech-based privacy issues (see 1809050061 and 1809060048). Kavanaugh “went beyond the bounds” of USTelecom and FCC arguments, finding the First Amendment “protects ISPs' right to exercise editorial discretion,” Klobuchar said. Kavanaugh believes the First Amendment argument “seemed on point” for his dissent because it was a major factor in the Supreme Court's 1994 Turner Broadcasting and was in amicus briefs supporting USTelecom. Turner's First Amendment approach “seemed to apply very closely” and has been successfully applied to cases “in other contexts,” Kavanaugh said. “I pointed out” in the dissent that “if a company has market power under Turner then the government does have the authority to regulate, but if a company doesn't have market power,” Turner says that authority doesn't exist. “There's First Amendment rights of individuals to use the internet and express their own views,” Klobuchar said. “You basically said that the companies have those First Amendment rights,” which runs counter to policymakers' view “that unless you have some rules of the road in place, it's going to make it very hard for individuals and small businesses” to maintain internet access, she said. Demand Progress used Kavanaugh's dissent and his Senate Judiciary Committee testimony on the ruling in a Thursday night fundraising email. “Kavanaugh tried to block net neutrality when he was on the D.C. Circuit Court, but he was overruled by the other judges,” Demand Progress said. “On the Supreme Court, he and the other four right-wing justices would have the final word.” If two of the three Senate Republicans who joined Senate Democrats in May to pass a Congressional Review Act resolution of disapproval aimed at restoring the 2015 rules (see 1805160064) “join every Democrat in voting no on Kavanaugh, his nomination is finished,” Demand Progress said.

With the FCC set to vote on a major wireless infrastructure item Sept. 26, it saw much activity late in the week, based on filings in docket 17-79. Chairman Ajit Pai Wednesday circulated the draft declaratory ruling and order, crafted by Commissioner Brendan Carr (see 1809050029). CTIA fired back at a NATOA petition for reconsideration of a March infrastructure order (see 1806060039). That order was “a proper, lawful exercise of the Commission’s authority under the National Environmental Policy Act and the National Historic Preservation Act, was consistent with those statutes, and was solidly grounded in the factual record,” CTIA said: The FCC “addressed a serious and growing problem -- the long delays and costs resulting from the Commission’s and Tribal authorities’ prior implementations of NEPA and NHPA.” Sprint agreed, saying the order offers “much-needed relief from the unnecessary and ineffective regulatory burdens created by the prior regime.” NTCA agrees with Crown Castle complaints railroads can slow wireless deployment (see 1807050022). “Unfettered monopoly control of certain tracts of land by railroads may have made sense a century or more ago,” not now, NTCA said. Officials with NATOA, the National League of Cities, the Smart Communities Coalition and the U.S. Conference of Mayors said Carr contacted each before the pending order premiered "to provide the organizations with his understanding and intent of the Item,” the groups said.

Government should directly fund "infrastructure needs," not last-mile carriers, to promote rural broadband and close the digital divide, said Public Knowledge Thursday. It cited a new Broadband Connects America coalition of 18 groups that also include the Benton Foundation, Institute for Local Self-Reliance, National Hispanic Media Coalition and X Lab. "Rather than repeat the design" of the FCC high-cost USF program, "new funding should take advantage of the ability to divide the supply chain into different components such as towers, fiber, conduit, as well as services such as 911 and packet routing," said the coalition's principles. "Directing funding to shared infrastructure instead of particular carriers would allow federal and state governments to target dollars where needed to ensure efficient deployment of infrastructure that could serve multiple carriers -- rather than limiting funding to one carrier per community." It said the shift in focus "would reduce the cost of providing service to rural areas" for carriers and "is not meant to include funds that are directed towards specific users such as Lifeline, E-rate, or the Rural Health program." Other principles include "a combination of approaches that reflects the complexity" of rural broadband challenges and "restoring net neutrality."

More “tit-for-tat tariff escalation” by a third tranche of proposed duties on $200 billion of Chinese imports would “expand the harm to more U.S. economic interests,” wrote CTA, the Information Technology Industry Council, Internet Association, Telecommunications Industry Association and 146 other groups to U.S. Trade Representative Robert Lighthizer at Thursday's deadline in docket USTR-2018-0026. Holiday product disruptions are feared, said groups also including the Computer & Communications Industry Association, CompTIA, National Association of Music Merchants and Semiconductor Industry Association. The U.S. and China should “begin a comprehensive negotiation,” said the groups. "We have seen no indication of China changing course,” they said. “We request that every effort be undertaken now to initiate meaningful negotiations expeditiously. We recommend no further tariff actions be taken until those negotiations have a chance to produce significant and verifiable results, and the Administration can fully assess the impact." Lighthizer’s office didn’t comment.

As it looks to unload some mobile traffic carried via its mobile virtual network operator, Charter Communications is considering licensed as well as unlicensed spectrum and Wi-Fi, Chief Financial Officer Chris Winfrey told analysts Thursday. He said the company is doing tests to evaluate 3.5 GHz spectrum and hopes to do the same with 3.7-4.2 GHz spectrum. Asked about 5G competition, he said it's unlikely to be direct competition for fixed line service, though Charter likely will employ 5G in some limited use cases or in partnership with other operators. He said Charter's footprint-wide rollout of its Spectrum Mobile service (see 1809040003) -- as well as other cable operators' own mobile offerings -- could help push broadband penetration broadly since customers could get web and mobile service at bundled pricing comparable to what many pay for mobile service alone. He said the Time Warner Cable and Bright House Networks integration "has gone extremely well" and New Charter will operate as a single cable system by early next year. He said New Charter's conversion to all digital and all DOCSIS 3.1 will be done by year's end. Asked about declining video subscriptions, Winfrey said Charter is "becoming more and more indifferent" about small growth or losses of video customers, though having a video offering remains important to the connectivity business.

The National Institute of Standards and Technology announced an effort to work with stakeholders to develop a “voluntary privacy framework” for companies. To start collecting input, NIST will host an initial public workshop Oct. 16 in Austin during an International Association of Privacy Professionals’ conference. A series of public meetings will follow. The effort will run parallel with NTIA’s goal to develop a set of privacy principles (see 1808060035), the agency said Tuesday. NIST Director Walter Copan cited recent success with the agency’s Cybersecurity Framework. The purpose of developing the privacy framework is to “deliver practical tools that allow continued U.S. innovation, together with stronger privacy protections,” he said. Flexible privacy protections will allow consumers to “enjoy the benefits of innovative technologies with greater confidence and trust,” he said.

Mike Poth will step down as FirstNet CEO at the end of September for an unnamed private-sector job, NTIA said Wednesday. Also, Commerce Department Secretary Wilbur Ross reappointed Edward Horowitz to the FirstNet board and named him chair for a two-year term, replacing Sue Swenson, the authority said. The board and the department plan to appoint an interim CEO as they search for a permanent executive, FirstNet said. Swenson and ex-Vice Chair Jeffrey Johnson announced their resignations last month (see 1808200050). Six board seats must be filled; to ensure a quorum and continuity, expired members Neil Cox, Kevin McGinnis and Annise Parker agreed to extend terms, FirstNet said. “Mike Poth took the helm at a critical time and has been a driving force behind FirstNet’s success,” said NTIA Administrator David Redl. Poth said he’s focused on a smooth transition. The board’s next quarterly meeting is in December. Also Wednesday, the Bay Area Regional Interoperable Communications System Authority board chose Corey Reynolds as BayRICS general manager, replacing Barry Fraser, who was in that role since May 2013. Reynolds, previously interoperable communications project manager at the Bay Area Urban Areas Security Initiative, blogged about his new role Wednesday.

President Donald Trump appeared to suggest Tuesday that NBC should lose its “license” over “FAKE NEWS” and “highly unethical” conduct. “I have long criticized NBC and their journalistic standards -- worse than even CNN. Look at their license?” said the tweet, which appeared to be a reaction to reports that NBC tried to block a story about movie producer Harvey Weinstein. As a network, NBC doesn’t operate under an FCC license, though parent Comcast and NBCUniversal own and operate individual stations that do. The FCC and Comcast didn’t comment. Commissioner Jessica Rosenworcel tweeted in response that “one more time . . . this is not how it works.” She had a similar response when Trump also tweeted against NBC’s “license” in October (see 1710110075). That tweet led lawmakers to question FCC Chairman Ajit Pai about whether the agency would take action against broadcasters over their content. “I have made clear that the FCC does not have the authority to revoke a license of a broadcast station based on the content of a particular newscast,” Pai said in a letter in February to Sen. Richard Blumenthal, D-Conn. (see 1802210060).

A California man who threatened FCC Chairman Ajit Pai and his family via email over Pai’s policies on net neutrality pleaded guilty in U.S. District Court in Alexandria, Virginia, Friday, said a DOJ release. Markara Man (see 1806290071) faces a maximum of 10 years in prison when sentenced Dec. 7, though the release said actual penalties are typically less than the maximum. “I would like to thank the U.S. Department of Justice, the FBI, local law enforcement, and FCC security officials for their hard work protecting my family and me," said Pai Monday. “I am deeply grateful for all they have done to keep us safe.” Man allegedly sent Pai several threatening emails, one of which included the addresses of Arlington, Virginia, area preschools and "I will find your children and I will kill them.” One of Man’s emails allegedly accused Pai of being responsible for the suicide of a child and another contained photographs of Pai and his family gathered through Internet image searches. “The FBI traced the emails to Man’s residence in Norwalk, California, and when initially confronted in May 2018, Man admitted to the FBI that he sent the email threatening Chairman Pai’s family,” DOJ said. During an FBI search of his house, Man factory-reset his cellphone to wipe its records, Justice said. “When asked about the phone being in setup mode, Man lied to the FBI and claimed that he had received it a month earlier and not set it up yet.” Man sought bail pending sentencing. DOJ filed in opposition (URLs in Pacer).

California’s net neutrality bill is headed to the governor’s desk, as expected (see 1808310042), after the Senate voted 27-12 Friday to concur with Assembly amendments to SB-822. The dozen nays came from the GOP, though one Republican voted yes and one didn’t vote. Companion SB-460 to restrict state procurement with ISPs that don’t follow open-internet rules died in the Assembly 28-37. Democrats recorded all the yes votes, but 13 said no and 14 didn’t vote. There were 24 GOP no votes; one Republican didn’t vote. Former FCC Chairman Tom Wheeler cheered SB-822 passage in a tweet. In a livestreamed news conference, Sen. Scott Wiener (D) said he worked with Attorney General Xavier Becerra (D) to ensure his bill is defensible. The AG was “very conscious of the fact that we are going to get sued,” since ISPs said from beginning they would challenge such law, Wiener said. “When you're in government, you get sued.” USTelecom CEO Jonathan Spalter, who earlier threatened to challenge state open-internet efforts (see 1803260024), Friday evening urged Gov. Jerry Brown (D) to veto the bill and Congress to make national rules. A trade association or small ISP is likely to be the primary challenger, with the FCC likely to weigh in once the suit is filed, said American Legislative Exchange Council Communications and Technology Task Force Director Jonathon Hauenschild. Challengers may want to take on several different state laws at about the same time, and the California bill taking effect -- this January if Brown signs -- could be the “tipping point” for action, he emailed Tuesday. “This way, the courts hear both the similarities in the bills and the differences and render a more complete verdict.” SB-460 failing wasn’t a big deal, said Electronic Frontier Foundation Legislative Counsel Ernesto Falcon. “The problem had nothing to do with telecom policy and more with internal political issues within the Democratic caucus,” he emailed. “They made their mark with 822." Also Friday, a privacy bill passed (see 1809040053).