Federal Communications Commission (FCC)

FCC Chmn. Powell’s legal adviser on media issues, Susan Eid, told Precursor Group conference Tues. that reality was that there were unprecedented levels of competition, diversity and choice in broadcast TV market. Prime-time viewing of broadcast has declined more than 30% in last decade because of competition from cable, she said. Cable captures 20% of ad revenue now, she said, and she believes clustering of cable systems will cause that industry to “compete much more aggressively and, frankly, effectively” with local broadcasters in terms of local content and advertising.

General Accounting Office (GAO) report released Mon., citing past govt. difficulties in resolving conflicts among spectrum users, called for independent federal commission to examine U.S. spectrum management. Report, requested by Sens. Hollings (D-S.C.) and Burns (R-Mont.), said NTIA and FCC already had stepped up communications on spectrum issues but “their different jurisdictional responsibilities appear likely to result in piecemeal efforts that lack the coordination to facilitate major policy changes.”

Mobile satellite service (MSS) providers will have option to use ancillary terrestrial component (ATC) to supplement their satellite services under certain conditions, FCC said Thurs. Text of order wasn’t available by our deadline, but news release outlined key points, which included 8 different gating criteria and covered interference concerns for 2-GHz and L-band. Commission also adopted rulemaking on Big Leo band to address additional spectrum issues. As part of 5 interlocking items released Thurs., Commission reallocated 30 MHz from MSS band at 2 GHz for 3G wireless. CTIA still called actions “split decision for consumers,” saying it was likely to challenge ATC order.

In ruling that could mark end of protracted NextWave litigation, U.S. Supreme Court Mon. upheld lower court decision that reversed FCC on cancellation of carrier’s licenses. Court ruled 8-1, with dissent by Justice Stephen Breyer, that Bankruptcy Code barred FCC from revoking licenses held by bankrupt debtor for failing to make timely payment. Writing for majority, Justice Antonin Scalia said that reading of bankruptcy law didn’t conflict with Communications Act, which he said didn’t require FCC to cancel licenses as penalty for missed payment. “What the petitioners describe as a conflict boils down to nothing more than a policy preference on the FCC’s part,” he wrote.

Bipartisan group of 20 House members asked FCC to delay final decisions on Unbundled Network Element (UNE) Triennial Review and wireline broadband proceedings “until Congress has a sufficient opportunity to consider the impact of the pending proposals on consumers and competition,” they said in letter Jan. 24. Signers included House Govt. Reform Chmn. Davis (R-Va.) and Judiciary Committee ranking Democrat Conyers (Mich.).

Federal Election Commission should defer to FCC in how latter crafts its electioneering communications database and determines audience reach for over-air broadcasts, cable systems and satellite systems, NAB said in comments to FEC. Filing was in response to FEC’s Interim Final Rules with Requests for Comments. FEC is considering part of Bipartisan Campaign Reform Act (BCRA) involving political announcements in media. Act itself already is being challenged in court. Section of Act defines certain electioneering communications as those that can be received by 50,000 or more people. NAB said FCC was agency empowered with statutory authority to regulate broadcast, cable and satellite. What’s more, FEC’s interim conclusion that Grade B contour standard should be used to exclusion of other audience- predicting models “was not based on agency expertise or regulatory experience,” NAB said. It also said FEC had no engineering staff to evaluate comments and suggestions on calculating audience reach. FEC is “ill-equipped” to address issues raised by digital transition, including audience reach, NAB said.

ITU Study Group is to meet for first time today (Tues.) in Geneva to hash out ultra-wideband (UWB) policy issues, including definitions and operational and technical characteristics. In flurry of last-min. contributions last week, Canada and several European countries submitted proposals, some of which used emissions limits in FCC’s Feb. 14 UWB order as starting point. In other cases, companies such as Ericsson, Nortel and Qualcomm submitted similar data on interference concerns as they had been teed up at Commission.

More bills have emerged in state legislatures that would affect jurisdiction and operation of state utility commissions, including proposed legislation in N.M. to restructure and limit jurisdiction of state commission and Kan. bill to deregulate broadband. Other state bills would expand scope of no-call lists beyond landline residential numbers, as well as telecom tax measures.

Verizon Wireless, Salmon PCS, Alaska Native Wireless (ANW) and VoiceStream PCS BTA I filed joint opposition this week at FCC to auction relief challenge filed by Eldorado Communications. Eldorado asked FCC Wireless Bureau to reverse decision to grant NextWave re-auction winners relief on their bid obligations. Eldorado also has filed challenge at U.S. Appeals Court, D.C., arguing that bureau decision should be overturned because it conflicted with federal statutes, FCC regulation and Commission case precedent. Verizon, Salmon PCS, which has financial backing from Cingular, ANW, which has financing from AT&T Wireless, and T- Mobile unit VoiceStream PCS all participated in Jan. 2001 re- auction and availed themselves of FCC order allowing them to dismiss pending license applications. They charged that Eldorado’s challenge at FCC was “a transparent attempt to hold Auction No. 35 participants hostage while Eldorado pursues its grossly untimed request for additional relief” for participants in original C-block auctions. Eldorado competed with NextWave in original C-block auction, later filing for Chapter 11 bankruptcy and returning spectrum to govt. Carriers argued that Eldorado lacked standing and its application for review should be dismissed. DCC PCS filed similar objection last week (CD Jan 15 p3). Carriers said: “The application in effect seeks a stay of the orders by which the FCC granted the requested dismissals of Auction 35 applications and made related refunds without Eldorado even attempting to satisfy the heavy burden it must bear to warrant such extraordinary relief in the context of its own defaults” in original C-block auction. Eldorado isn’t injured by relief granted to re-auction winners, filing said. Instead, it was put at disadvantage by earlier FCC decisions granting relief to initial round of C-block winners when they ran into financial problems. “But those earlier decisions are well beyond review, and any challenges at this time would be grossly untimely,” filing said. “Eldorado cannot be allowed to use decisions unique to Auction 35 as a means to rejuvenate long-expired appeal time frames applicable to those prior auction actions.”

FCC Chmn. Powell told Senate Commerce Committee in hearing Tues. that complete preemption of states wasn’t issue in Triennial UNE Review or other upcoming proceedings. He said there would be a role for both federal and state regulators, saying “the word preemption is being thrown around lightly.”