Federal Communications Commission (FCC)

FCC Comr. Abernathy encouraged minority broadcasters to take advantage of new communications technologies to increase minority business ownership. Opportunities lie “not just in radio or TV, but Wi-Fi, broadband. You don’t need as much capital and it’s kind of a free-for-all right now,” Abernathy said. Abernathy, speaking at the Minority Media & Telecom Council conference Tues., said minority broadcasters shouldn’t look only at existing media companies.

SALT LAKE CITY -- Closing speakers at the NARUC summer meeting here said VoIP, broadband over power lines (BPL) and other promising new telecom technologies and applications will face major development hurdles until federal and state regulators sort out their oversight roles. All major telecom resolutions were unanimously approved by the NARUC board during the convention.

The new FCC all-or-nothing rule adopted last week (CD July 9 p3) is restricted to interconnection agreements approved under Sec. 252 of the Communications Act and doesn’t address how the new rule will apply to new commercial agreements, according to the text released Wed. One reason is that commercial agreements came under scrutiny after the Commission launched the further NPRM revising its interpretation of Sec. 252(i), we were told. The order will apply to all effective interconnection agreements, including those approved and in effect before the date the new rule goes into effect, the Commission said in the order, which will become effective 30 days after publication in the Federal Register. The new rules will equally apply to arbitrated and negotiated agreements, the FCC said. It found that Sec. 252(i) did “not differentiate between negotiated and arbitrated agreements.” It said the primary purpose of Sec. 252(i) was to prevent discrimination, and in the context of arbitrated interconnection agreements, requesting carriers were “protected from discrimination primarily by the arbitration process itself. Continuing to apply the pick- and-choose rule to arbitrated agreements, therefore, is an overly broad means of fulfilling the statutory purpose of protecting against discrimination.” Moreover, the Commission said, maintaining separate regimes for negotiated and arbitrated agreements would be difficult to administer. It stressed, however, that “parties are under a statutory obligation to negotiate in good faith.” The FCC also concluded in the order that it “does indeed have the legal authority” to reinterpret Sec. 252(i). Specifically, it said Congress hadn’t directly addressed the degree to which interconnection, service or network element provisions from a state-approved interconnection agreement must be made available to other requesting carriers. “We reach this conclusion because the plain meaning of the section’s text gives rise to 2 different, reasonable interpretations, and because the Supreme Court expressly recognized that the Commission has leeway to reinterpret section 252(i),” the order said. It also said the language in Sec. 252(i) didn’t limit the Commission to a single construction. On another issue raised by the competitive industry, the FCC said it found that Sec. 252(i) was “ambiguous” from the Supreme Court’s decision in AT&T v. Iowa Utilities Board, which, it said, held that the Commission had the expertise to determine a reasonable interpretation of Sec. 252(i). Several competitors had argued the Commission shouldn’t eliminate its pick-and-choose rule, which according to the Supreme Court “tracks the pertinent language almost exactly,” and is the “most readily apparent reading.” Comr. Copps, who dissented on the order, has also pointed at the highest court pronouncement, saying “this is a strong stuff for a Commission whose policy pronouncements do not always pass muster with the courts of land.” But the FCC said in the order the Supreme Court “did not hold that the Commission’s current interpretation of section 252(i) is compelled by the statute.” It said the Supreme Court had “routinely recognized that government agencies have discretion to change interpretations of ambiguous statutes, and that an agency is not stopped from changing its view.” The Commission also said “the order does not take a position on any issue outside the scope of the FNPRM.” Several parties participating in the proceeding have asked the Commission to address issues beyond those raised in the FNPRM. For example, Verizon has asked for a declaration that agreements governing network elements no longer subject to mandatory unbundling aren’t subject to Sec. 252(i) or the pick-and-choose rule; Birch has proposed structural separation of ILECs into wholesale and retail operations; and T-Mobile has urged the Commission to adopt a procedure for federal arbitration of national interconnection agreements. Those issues weren’t addressed in the order.

STANFORD, Cal. -- FCC Chmn. Powell held out hope Congress would take VoIP decisions away from the Commission before recessing this summer. In a Q-&-A at the end of an appearance here Tues. night at AO2004: The Innovation Summit, Powell was asked when the questions of CALEA and 911 obligations on VoIP would be clarified. He emphasized that congressional bills reflect a “growing legislative debate” over VoIP policy “that’s real and alive.” AO2004 derives from the name of conference organizer AlwaysOn Network, which hosts Powell’s new Web log.

Allowing broadband network owners to discriminate in providing access to their networks “represents a dramatic change” that would severely limit the growth of the Internet and IP services, according to a white paper by the Consumer Federation of America (CFA). The CFA said it will file the 110-page paper in nearly a dozen FCC and court proceedings, which it said “will define the architecture of the telecommunications network in the 21st century.” CFA defended the open architecture and open access principles in the FCC’s Computer Inquiries the past 3 decades, saying “policy-makers in the U.S. seem to have lost their appreciation for the fundamental importance… of open architecture.” CFA Dir.-Research Mark Cooper said “the Commission is trying to reverse this remarkably successful policy” of open access. “The steadfast refusal of telephone companies and cable operators to negotiate commercial access to their broadband networks, on terms that treat unaffiliated Internet service providers reasonably, makes it clear that the public interest can be promoted only by requiring facility owners to operate open communications networks,” he said. But the CFA said the “fundamental policy decisions are still up in the air” in a series of pending FCC decisions, including inquiries into high-speed cable Internet access, DSL high-speed access and universal service requirements, unbundling proceedings, broadband over power line and wireless broadband. It said the issue also is still in the courts in cases like Brand X. In the paper, the CFA said open networks “support rapid and efficient technological innovation,” as well as such benefits as interconnectivity, new services and lower costs. The paper also said the FCC can’t forebear regulating VoIP including on issues such as E- 911.

The FCC dismissed a petition asking it to declare that the monthly Interconnection Cost Adjustment Mechanism (ICAM) surcharges proposed by US West in the 14 states where it provided telecom service violated Secs. 251 and 252 of the Communications Act. The petition -- filed by Electric Lightwave, McLeodUSA and Nextlink in 1997 -- also asked that under Sec. 253 of the Act, the Commission preempt any state commission action letting US West impose ICAM surcharges. But the FCC said in the order since Qwest -- US West’s successor company -- decided not to pursue recovery of interconnection costs through the ICAM and no state ever adopted the proposal, “we fail to see that any dispute regarding the legality of the ICAM continues to exist between petitioners and Qwest.” It said it dismissed the petition “without prejudice as moot unless any interested party notifies us… that there is still a genuine dispute that remains to be resolved.” Notice is due 30 days after publication of the order in the Federal Register, replies 45 days after publication.

The FCC proposal that broadcasters retain recordings of their programs for 60-90 days (CD July 8 p4) drew mixed initial responses from public broadcasters. The Assn. of Public TV Stations (APTS), representing more than 350 stations, said it would oppose the proposal, while some public radio stations welcomed it as a good administrative procedure that would bail them out in the event of listener complaints. Public radio attorney and former NPR legal counsel Ernest Sanchez said what’s largely gone unnoticed is a U.S. Appeals Court, D.C., decision in 1978 striking down FCC requirements that noncommercial broadcast stations keep audio recordings of their programs for 60 days.

The FCC agreed 5-0 Thurs., after months of arguments, to adopt an 800 MHz rebanding plan, which will give Nextel much of what it wanted, including 10 MHz of spectrum in the valuable 1.9 GHz band. But Nextel may have to pay more than $3 billion, beyond the spectrum it agreed to contribute. The FCC is also requiring that Nextel sign a letter of credit for $2.5 billion to cover all public safety transition costs.

The FCC adopted an all-or-nothing rule for interconnection agreements before its meeting Thurs. The Commission required that competitive carriers seeking to adopt terms of another carrier’s interconnection agreement “adopt the agreement in its entirety, taking all rates, terms and conditions from the adopted agreement.” Comr. Copps dissented and Comr. Adelstein dissented in part.

Vice-presidential hopeful and retiring Sen. Edwards (D- N.C.) has received many donations from prominent figures in the broadcasting and entertainment industry, as well as some in high-technology. But he has been all but ignored by telecom donors. Sen. Kerry (D-Mass.), the presumptive Democratic nominee for president, selected his chief primary rival, Edwards, to join his ticket Mon. Kerry also was strongly favored by mass media donors in his primary campaign.