The municipal broadband networks run by the Electric Power Board of Chattanooga and Wilson, North Carolina, demonstrate the First Amendment concerns with allowing more such networks, wrote Enrique Armijo, a member of the Free State Foundation's board of academic advisors and an assistant professor at the Elon University School of Law, in a paper released Monday. There is “good reason” to conclude free speech protections “are being sacrificed at the altar of the new," he wrote: That "certainly should give pause to those that want the FCC to preempt state restrictions on these networks and expand municipalities' power in the online communications space.” The FCC is expected to approve petitions from Chattanooga and Wilson Thursday to pre-empt anti-municipal broadband laws in those states (see 1502020037). Chattanooga’s acceptable use policy bars users from using the network to "’transmit, distribute, or store material" that is illegal, ‘obscene, threatening, abusive or hateful,’” Armijo wrote. It also bars users from posting messages on third party blogs that are ‘excessive and/or intended to annoy or harass others’ -- ‘regardless of [the] policies’ of the blogs on which the users post,” he wrote. Wilson has similar restrictions, said Armijo. “One does not need to be a free speech scholar, or even a lawyer, to be troubled by these provisions.” First Amendment "doctrine makes clear that outright government bans on protected speech -- even indecent speech, let alone ‘excessive,’ ‘derogatory,’ ‘harassing,’ ‘abusive,’ or ‘hateful’ speech -- are never narrowly tailored enough to survive strict scrutiny,” said Armijo. Chattanooga and Wilson officials didn't comment.

The FCC should begin reporting Measuring Broadband America performance results for AT&T’s IP-based U-verse broadband subscribers separately from those of the company’s legacy ATMbroadband subscribers, the telco told officials from the agency and SamKnows, said an ex parte letter posted Friday in docket 12-264. AT&T has invested “significantly” in migrating ATM-based Internet customers to “more robust” IP-based U-verse technology, the company said. SamKnows is the FCC contractor on the project to measure wireline and wireless broadband speeds.

Prompt and secure access for states to the network outage reporting system (NORS) is “critical” for states’ ability to respond to outages and develop policies to ensure reliable communications, California Public Utilities Commissioner Catherine Sandoval told FCC officials, including Chairman Tom Wheeler’s Chief of Staff Ruth Milkman and aide Gigi Sohn, and Commissioners Mignon Clyburn and Jessica Rosenworcel, during five meetings Feb. 13, said an ex parte filing posted Friday in docket 04-35. Access is important for states to respond to and analyze emergencies and communications failures such as the April 911 outage that affected several states, including California, Sandoval told the officials. Sandoval distributed the resolution NARUC went on to approve Thursday (see 1502180058) calling for states to have access to NORS and noted that Wheeler backed the idea at the association's winter meeting last week (see 1502170051). Sandoval also lobbied on her agency's petition for an FCC waiver to ensure wireless customers getting government-subsidized service are eligible for that Lifeline program (see 1502200027).

CenturyLink has until Feb. 20 to submit special access data being collected by the FCC, the Wireline Bureau said in an order Wednesday granting an extension. CenturyLink had sought an extension to the Jan. 29 deadline, saying that in preparing to submit a database container, the company discovered “‘anomalies’” in billing data comprising nearly 18 million records, according to the order. The telco said additional time was needed to “‘fix as many of these errors as possible,’” the order said.

The Court of Appeals for the D.C. Circuit correctly said the FCC didn't act “arbitrarily or capriciously" in permitting state regulators to decide not to grant payphone service providers refunds from AT&T and Verizon (see 1406160029), wrote agency attorneys and U.S. Solicitor General Donald Verrilli. They said the Supreme Court should deny a Nov. 10 writ of certiorari filed by the Illinois Public Telecommunications Association. “The court of appeals correctly upheld the FCC’s determination that state authorities were better positioned than the federal agency to decide the applicability of the filed-rate doctrine in individual refund disputes,” said the Feb. 11 brief released Wednesday.

The FCC should do a cost comparison of the bids for the local number portability administrator contract, including transition costs, to “make a fully informed selection,” Neustar representatives told Chief David Simpson and other officials from the Public Safety Bureau, and officials from the Wireline Bureau and the Office of General Counsel, Feb. 11, said an ex parte filing posted Wednesday in docket 09-109. Neustar consultant Cheryl Smith said Telcordia’s competing proposal “presented serious technical deficiencies, unmitigated transition risks, and likely transition delays, even in a best case scenario,” according to the filing. Telcordia’s proposal to write new software “'from scratch'” isn't technically equivalent to the current system and "would not advance the state of the art,” Smith said. An agency committee recommended that Telcordia get the contract, now held by Neustar. Neustar's petition "is another attempt to ensure it can continue to charge carriers nearly $1.5 million per day and delay the decision by the FCC," said Telcordia President Richard Jacowleff in a statement to us. "Price matters -- and consumers ultimately bear the expense of Neustar’s substantially inflated charges and attempts to create further delays in the decision-making process. The transition cost estimates and timeframes it keeps offering are pure speculation and amount to nothing more than simple scare tactics." Representing Neustar were Kellogg Huber counsel Aaron Panner, Perkins Coie’s Michael Sussman, and Michele Farquhar and Thomas McGovern of Hogan Lovells.

Municipal broadband projects have had a history of “costly business failures that have saddled citizens with substantial financial failures,” CenturyLink's Melissa Newman, senior vice president-federal policy and regulatory affairs, told aides to FCC Commissioners Mignon Clyburn and Jessica Rosenworcel on Feb. 11, said ex parte filings posted Friday in dockets 14-115 and 14-116. Newman cited Greenlight in Wilson, North Carolina, which had a deficit of $1.2 million in June 2013. The Utah Telecommunication Open Infrastructure Agency “experienced millions of dollars in operating losses every year and has failed to meet projections on customers and revenues, thus requiring it to go back to its member cities for additional financing" (see 1407090034), Newman said. Many state municipal broadband laws were adopted to “protect citizens from projects that could very likely increase their taxes," she said. "Many of the laws adopted were done so to ensure a level playing field for private investment.”

Despite FCC discussions about adding broadband to Lifeline, "there should be adequate controls and deterrents in place before considering a revamp of the program,” Commissioner Mike O’Rielly said in a blog post Friday. There's a “legitimate debate whether the Lifeline program should be abolished or significantly scaled back rather than expanding its mission,” he said. O’Rielly proposed a number of principles in examining the program. Lifeline should have a budget, he said, saying it’s the only USF program without one. If broadband is expanded, the reimbursement rate shouldn’t be increased to pay for it, he wrote. The commission should decide what services should be supported, he said. To prevent “double-dipping,” a household should be able to get a subsidy for a voice plan or a combined plan with voice and broadband, but shouldn't be able to get subsidies for both, he wrote. O’Rielly also proposed tightening eligibility requirements, requiring financial contributions from recipients and making carrier involvement voluntary.

Seven companies will pay a total of $1.2 million in civil penalties to settle an FCC Enforcement Bureau investigation into the companies' “slamming” and “cramming” of customers, the agency said Wednesday. The companies also agreed to adopt “comprehensive, rigorous compliance plans” to prevent them from changing customers’ long-distance carriers without authorization and assessing charges on phone bills without consent, an agency news release said. The companies are: Business Network Long Distance, of Denver; Reno-based Communications Network Billing; Integrated Services, of Northbrook, Illinois; Multiline Long Distance, of Cincinnati; National Access Long Distance, of Henderson, Nevada; Nationwide Long Distance Service, of Southfield, Michigan; and Las Vegas-based Network Service Billing, the release said. Back Office Support Systems, of St. Clair Shores, Michigan, which manages many functions for the companies, is also subject to the compliance plan, the agency said. Saying “slamming” and “cramming” are “persistent problems,” Enforcement Bureau Chief Travis LeBlanc said in the release that the agency “has aggressively responded to hold phone companies accountable when they prey on the public, and these settlements demonstrate that we will continue to do so.” The companies didn't comment Wednesday.

Despite FCC Chairman Tom Wheeler’s pledge that the draft net neutrality order wouldn't regulate rates, it preserves the agency’s ability to do that by not forbearing from Communications Act Section 201, NCTA President Michael Powell wrote in a blog post Wednesday. “The Commission can convert its promises into reality quite simply by forbearing at least in part from section 201(b)’s authority to regulate charges,” Powell wrote. “If the FCC means what it says and is not intent on regulating rates … they need to take the bullets out of the proverbial gun.” The agency has said mobile has been under Title II and hasn't been subject to rate regulation. While Wheeler is pledging not to require carriers to file proposed rates with the commission for approval, “anyone will be permitted to file complaints about rates and the Commission will decide if those rates are ‘reasonable’ under their section 201 authority,” Powell wrote. “If they believe they are not [reasonable], then they will declare the rate ‘illegal.’ That is regulating rates no matter how you cut it and it is insincere to suggest otherwise.” Forty-three municipal broadband providers meanwhile urged the FCC in a joint letter posted in docket 14-28 Wednesday not to reclassify broadband. As smaller providers, they “do not have an incentive to harm the openness of the Internet, the ISPs said. Customers would switch to competitors if they were to engage in any business practices that interfere with their Internet experience, the filing said. None of the providers has “the market power to compel payments for unblocking, non-discriminatory treatment or paid prioritization services” because they “serve too few Internet subscribers to matter to edge providers such as Netflix, Amazon or Hulu,” the filing said.