Southern Light and Uniti Group told FCC leadership of problems when they try to install facilities in public rights-of-way, including "recalcitrant state Department of Transportation agencies, delays associated with issuing the requisite permits, and some municipalities demanding excessive franchise fees for small-cell deployments." When Southern Light "cannot make use of the rights-of-way on a bridge, for example, the costs associated with fiber deployment can increase 15 to 20 times which can lead to making deployment to certain areas economically infeasible," said a joint filing posted Tuesday in docket 17-84 on meetings with all three commissioners and aides. "In a number of states, companies must negotiate with numerous local governments which can require years of effort, reducing competition and increasing costs." Separately, the Wireline Bureau issued a public notice in docket 17-99 seeking comments by May 30, replies June 6 on the proposed transfer of control of Southern Light to Uniti Group.

NCTA and USTelecom asked the FCC to clarify broadband speed disclosure rules to ensure harmonization and industry flexibility amid state mandates. They said the commission established a national regime for measuring and disclosing broadband internet access service (BIAS) speeds, and "is poised to launch a proceeding that may further update that regime," but states are trying "to mandate different disclosures based on unreliable performance metrics." The commission should act "to avoid a patchwork of inconsistent requirements and to protect its authority to maintain a uniform national framework for this interstate service," said an NCTA/USTelecom petition posted Tuesday. It said the agency gave flexibility to comply with transparency rules, with a "safe harbor" for providers disclosing their average downstream and upstream speeds during peak demand. "The Commission should prevent this framework from being undermined by issuing a declaratory ruling confirming that a broadband provider’s description of speeds based on this average peak-hour metric complies with the Commission’s transparency requirements and, unless and until BIAS is no longer classified as a telecommunications service, that such a characterization of actual broadband performance is just and reasonable," the petition said. The FCC should reaffirm that BIAS providers retain flexibility to comply with transparency rules "through alternative disclosures beyond" the safe harbor, the groups wrote. "Such a ruling -- along with a confirmation that broadband providers can meet these obligations through website disclosures, and a clarification that it is consistent with federal law for broadband providers also to advertise maximum speeds -- would reinforce the primacy of federal law on these matters. ... Protecting the Commission’s authority to establish national, uniform rules is particularly important ... as the Commission is about to launch a proceeding to put in place a national 'light-touch framework' to govern BIAS providers and preserve a free and open Internet."

The FCC listed counties deemed “competitive” in the lower-speed business data services market and subject to price deregulation under the commission’s April BDS order. The agency released the list Monday. Commissioner Mignon Clyburn and Incompas called for its release before commissioners' vote last month (see 1704100068); the FCC proposed releasing it in an April 28 notice (see 1705010019). Incompas is "shocked by the number of counties, including several rural counties, targeted by the FCC for broadband price hikes," emailed the CLEC association's General Counsel Angie Kronenberg. Incompas is still studying the list, "but it is apparent now why the FCC wanted to withhold this information from the public and Congress until after the BDS vote," she said.

DOD began “circulating among some members” of Congress feedback on the first November 2015 draft of Mobile Now within days of the draft spectrum bill’s unveiling, according to the responses to a Freedom of Information Act request that Communications Daily filed last year with NTIA. Responses to this request were largely supplied in the final months of 2016 (see 1612160062, 1612200031 and 1612220020), but NTIA gave us a final selection of documents this month. The latest result included several pages of entirely redacted text, presumably encompassing the attachment listed in the non-redacted email exchanges as DOD's assessment of Mobile Now. NTIA Chief Counsel Kathy Smith told us in a May 5 letter that the records are being withheld due to the FOIA exemption protecting "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with an agency." Senate Commerce Committee Chairman John Thune, R-S.D., wrote the 2015 draft, and, after extensive negotiation with the Obama administration, pared it down. That less-aggressive version stalled on the Senate floor last year and is stalled again on the Senate floor now, in both cases due to an unrelated FCC nominations concern. David Quinalty, a telecom policy aide to Thune, sent the “DoD assessment” of the first Mobile Now draft as an attachment to a Nov. 13, 2015, email to NTIA officials “in case you have not yet seen it,” he said. Quinalty referred to talking with NTIA officials that day “to discuss the Administration’s views” on the draft bill, citing the DOD document's circulation among some Senate offices. “Between our conversation and the DOD document, we feel quite confident we can satisfactorily address the Administration’s concerns.” Earlier responses to this FOIA request showed a harsh administration critique of the draft but make no mention of such a DOD-penned document circulating on Capitol Hill then. DOD concerns were known during those 2015 months of negotiation due to comments from senators and staffers (see 1511180058). Upon receipt of this DOD critique in the Nov. 13, 2015, email exchange, NTIA Chief of Staff Glenn Reynolds forwarded the document within eight minutes to Aalok Mehta and Ben Page, both of whom then worked in the White House Office of Management and Budget, and Hannah Merves, then a policy adviser in the White House National Economic Council. “For awareness,” Reynolds told the Obama administration officials.

The FCC extended by 18 months a freeze on jurisdictional separations of rate-of-return telco cost calculations. The extension allows the agency time to work on a separations rules overhaul with the Federal-State Joint Board on Jurisdictional Separation, said a Monday order in docket 80-286. Commissioners extended the freeze through Dec. 31, 2018; it was set to end June 30. Rural telcos sought the 18-month freeze (see 1704250018).

Satellite broadband operators and the Competitive Carriers Association continue to joust over a satellite push for reconsideration of spectrum frontiers earth station deployment restrictions in the 27.5-28.35 GHz band. CCA objections come from "a fundamental misunderstanding as to the nature of satellite earth station deployment in this band" and don't recognize how extensively satellite is using the 28 GHz band already to provide broadband service, as well as the ability of satellite and terrestrial wireless to coexist, the satellite operators said in a filing Friday in docket 14-177. That satellite use of the band would be only "at discrete and identifiable locations, not ubiquitous deployment at customers’ premises" should satisfy many CCA concerns, the operators said. Boeing, EchoStar, Inmarsat, Intelsat, O3b, SES and OneWeb said the limited deployment of local multipoint distribution service, with 58 percent of the LMDS license areas not being issued licenses, particularly in rural areas, doesn't back up CCA arguments competitive carriers are using the spectrum in rural and regional service footprints. The satellite broadband proposals "will devalue and interfere with rural broadband providers’ mobile service to consumers in hard to serve parts of the country," CCA emailed us. It said issues like the unreliability of satellite service due to atmospheric conditions need to be considered "before granting more rights to satellite operators that could substantially interfere with more reliable terrestrial-based services. The FCC must consider the interference potential to reliable services before encumbering operators that have relied upon FCC rules to build out networks. This is sort of like changing the ‘rules of the game’ during halftime; it is not a good idea.”

Clarification: Comments on the 9th U.S. Circuit Court of Appeals rehearing FTC v. AT&T Mobility attributed to "Augustino" are from telecom lawyer Steven Augustino of Kelley Drye (see 1705100063).

Sprint and Windstream asked a federal appeals court to review the FCC’s business data services order. The court should “reverse and hold unlawful, vacate, enjoin, annul, and set aside” the April order, the companies said in a protective petition May 8 in the D.C. Circuit U.S. Court of Appeals. Commissioners adopted a BDS order April 20 that will expand price deregulation for incumbent telcos, including by creating a competitive market test to determine the counties where additional legacy TDM-based special-access services can be deregulated, and counties where they would remain subject to price caps (see 1705010019). “Petitioners seek relief on grounds that the Report and Order is arbitrary, capricious, and an abuse of discretion; violates the notice-and-comment requirements of the Administrative Procedure Act; violates other federal laws including, but not limited to, the Communications Act of 1934 (as amended), the Commission’s regulations, and the Constitution; and is otherwise contrary to law,” Sprint and Windstream said. The FCC declined comment.

Most municipal broadband networks probably back near-total forbearance of regulation on small ISPs since they operate "in an arena in which their customers can hold them directly accountable," Chris Mitchell, Institute for Local Self-Reliance Director-Community Broadband Networks, emailed us Friday. Nineteen municipal ISPs cheering the net neutrality draft NPRM​ up for a vote at Thursday's FCC commissioners' meeting are "not representative entirely" since while local governments generally abhor federal or state government directives on how to operate, those local networks were built to avoid the harms that have come from large providers "and the lack of market discipline or regulation that allows them to harm communities," he said. "Most of these networks are from smaller, more conservative rural communities that are particularly opposed to federal action in any arena." In a letter to be filed in docket 17-108, the 19 signatories to the American Cable Association-submitted document said that "returning to light-touch regulation of broadband service" will incentivize investments in their networks and future service deployments. They said that since the 2015 imposition of Communications Act Title II regulation on common carriers, their spending on lawyers and consultants to comply with the "complex and ... difficult to fathom" rules has increased and they often delay introductions of new services or features out of caution about facing a complaint or enforcement action. Muni ISP signatories included Monroe, Georgia; Bagley (Minnesota) Public Utilities; Oberlin (Ohio) Cable Co-Op and Auburn (Indiana) Essential Services. Chairman Ajit Pai in a statement Friday said that "the fact that ISPs lacking any profit motive agree that eliminating Title II regulation will benefit consumers and promote innovation and investment is a powerful endorsement of reversing the FCC’s 2015 Title II Order.” Mitchell said he questioned how many of the 19 can point to a direct harm from Title II regulation. The FCC is going full steam ahead toward Thursday's vote (see 1705120052).

NTCA hailed Rural Utilities Service work as Agriculture Secretary Sonny Perdue announced a USDA reorganization Thursday. Rural development agencies will be "elevated" to reporting directly to the secretary, said a USDA release. “The Rural Development programs within USDA are critical to national goals with respect to promoting the availability of infrastructure throughout the United States,” said NTCA CEO Shirley Bloomfield in a statement. “The Rural Utilities Service in particular has played and will continue to play an essential role in providing financing for telecommunications network projects that drive economic development and job creation in rural America. We hope USDA’s leadership will help build upon the many successes.”