TLJ News from December 1-5, 2011

House Communications Subcommittee Approves Spectrum Bill

12/1. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology (SCT) amended and approved the Republican discussion draft [113 pages in PDF] titled the "Jumpstarting Opportunity with Broadband Spectrum (JOBS) Act of 2011".

The vote on final passage was 17-6. All 16 Republican members of the Subcommittee voted for the bill. Rep. John Barrow (D-GA) also voted for the bill. Rep. Bobby Rush (D-IL), Rep. Ed Towns (D-NY) and Del. Donna Christensen (D-VI), the black members of the Subcommittee, did not vote. Rep. Mike Doyle (D-PA) did not vote. Six Democrats voted no. See, roll call.

This bill would give the Federal Communications Commission (FCC) voluntary auction authority, and provide up to $3 Billion for broadcasters relocation expenses out of auction proceeds. It would also provide for allocation of the 20 MHz of contiguous spectrum known as the D Block for a public safety network, funding for that network, and a governance model. As amended, the bill would also address next generation 911 services.

See, full story.

Cicconi Calls Genachowski's Staff Report on AT&T T-Mobile Merger an Advocacy Piece

12/1. The Federal Communications Commission (FCC) released a document [157 pages PDF scan in 20 MB] titled "Staff Analysis and Findings" in its proceeding on the proposed merger of AT&T and T-Mobile USA, WT Docket No. 11-65.

Rick Kaplan, Chief of the FCC's Wireless Telecommunications Bureau (WTB) issued an Order [4 pages in PDF] on November 29 that granted AT&T's and Deutsch Telekom's request to withdraw all applications associated with the proposed merger. See, story titled "FCC Staff Releases Items in AT&T T-Mobile Merger Proceeding" in TLJ Daily E-Mail Alert No. 2,315, November 29, 2011.

The Commission has not adopted this 157 page report. Nor is it scheduled to consider it. Nor has the Commission made any decision to approve or deny any applications associated with the proposed merger. Rather, this is a pre-decisional staff report.

Jim Cicconi, AT&T's Senior Executive Vice President of External & Legislative Affairs, wrote a criticism. He argued that "The decision to issue such a report that has no legal status, without a vote of the Commission, and in a proceeding that has been withdrawn, was also without precedent, and underscores that this was intended more for advocacy and to impact public perceptions. And neither is a proper basis for action by a regulatory agency."

He argued that the document "is so obviously one-sided that any fair-minded person reading it is left with the clear impression that it is an advocacy piece, and not a considered analysis".

Cicconi wrote that the document "raises questions as to whether its authors were predisposed. The report cherry-picks facts to support its views, and ignores facts that don't. Where facts were lacking, the report speculates, with no basis, and then treats its own speculations as if they were fact. This is clearly not the fair and objective analysis to which any party is entitled, and which we have every right to expect."

"All any company can properly ask when they present a matter to the government is a fair hearing and objective treatment based on factual findings. The FCC's report makes clear that neither occurred on our merger, at least within the pages of this report."

For example, Cicconi wrote that the "report states, based purely on speculation, that AT&T will expand its LTE deployment from 80% of the population to 97.4% even without the merger. The report says this will occur because AT&T will be forced to do so by competition, despite documents and sworn declarations by AT&T to the contrary.  To argue this, the report apparently assumes a high enough level of competition exists in rural areas to compel billions of dollars in investment. Yet the report elsewhere argues that the level of wireless competition in more populated areas of America is so fragile that the merger must be disallowed. At the very least, these conclusions show a logical inconsistency."

He also wrote that "the report barely mentions any spectrum issue, much less the spectrum crisis previously identified by the FCC, although that is the primary reason driving AT&T’s need for this merger."

Also, "The report's competitive analysis willfully ignores critical facts about the wireless market, and distorts the evidence presented".

In response to Cicconi, the Free Press's Derek Turner stated in a release that the "report is a detailed account of the evidence submitted by AT&T, and it is laughable for AT&T to call it an advocacy piece". He accused AT&T of whining.

People and Appointments

12/1. The Senate Judiciary Committee (SJC) approved by voice votes the nominations of Jacqueline Nguyen (to be a Judge of the U.S. Court of Appeals for the 9th Circuit), Gregg Costa (U.S. District Court for the Southern District of Texas), and David Guaderrama (USDC, Western District of Texas).

12/1. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over consideration of the nomination of Kathryn Keneally to be Assistant Attorney General in charge of the Department of Justice's (DOJ) Tax Division. Her nomination is again on the agenda for the SJC's meeting of December 8. See, notice.

Go to News from November 26-33, 2011.