John Eggerton

President-elect Donald Trump has added a fourth member to the Federal Communications Commission landing team, the volunteers working on transitioning the agency to Republican majority control come Jan 20. David Morken is the newest member, currently the co-founder and CEO of Republica Wireless parent company, Bandwidth.com. Morken combines a couple of life experiences that appear to hold a lot of weight with the incoming President. He is a former member of the US military (a Marine) and an entrepreneur/disruptor who built an "overnight success" through a decade of hard work growing a business. Bandwidth.com, which started as a URL generating sales leads for other telecoms, built out its network on the theory that Wi-Fi could be the primary network and cellular (Sprint) the backup, which would allow it to charge less ($19 a month at launch) for voice and broadband.

The Justice Department or the Federal Trade Commission have given a clean antitrust review bill of health to the proposed $1.1 billion merger of Internet service providers Windstream and EarthLink. The deal was listed among those that had been granted early termination of their Hart-Scott-Rodino antitrust reviews. Those are conducted by either the Justice Department or Federal Trade Commission—they never say which reviewed a deal when granting early termination, but Justice usually handles telecom transactions. Early termination means they are done with the review and are not suggesting that the merger be blocked or are suing to insure that certain conditions are applied.

The Federal Communications Commission will also need to sign off, but that process will take a while longer. The FCC opened its review docket on the deal Dec. 2 and reply comments are not due until Dec. 23, so there will likely be no decision before early next year. The companies signaled they did not expect the deal to be able to close until first quarter 2017. The companies announced Nov. 7 they had reached a deal for an all-stock deal of $1.1 billion, including debt.

In the "no news is not good news for either Nexstar or Media General" department, the Federal Communications Commission's Media Bureau has yet to act on the waiver request by the two broadcasters that the commission make a decision on their proposed $4.6 billion merger, apparently.

The FCC's informal shot clock on the deal—it shoots for 180 days—was at day 306 at press time. As the days wind down to the holidays, it looks unlikely the waiver will be ruled on before the end of 2016. The companies extended some deadlines for the deal completion a couple of weeks ago amidst buzz that the FCC might be ready to both rule on the waiver and decide on the deal, which could come simultaneously. But that did not materialize. The FCC signaled early on that it would not make decisions on station license transfers that could implicate spectrum auction participants—this deal qualifies—while the auction was still going on.

The Federal Communications Commission's former general counsel Jon Sallet made the case for FCC Chairman Tom Wheeler's targeting of Internet service providers as the primary threat to Internet openness. That came in a speech Dec 16 at the Capitol Future of Broadband Competition Conference in Washington (DC). In what sounded like a farewell address, Sallet—who moved to the Justice Department's antitrust division as deputy assistant attorney general earlier in 2016—delivered a lengthy address on competition and broadband providers summed up in the first subhead in the transcript of his speech: "Telecommunications Network Providers Have Incentives and Abilities To Artificially Shape Competition And Have Long Been Associated With the Exercise of Gatekeeper Power." The speech was about an approach to mergers that presupposes ISPs are going to use that power unless reined in.

Sallet said he wanted to be clear that he wasn't saying that ISPs "are the only players in the Internet ecosystem that can ever be capable of developing or exploiting this power." But that was essentially the only mention of the edge beyond talking about how online video could be discriminated against by ISPs.

CenturyLink has secured an $11.4 million contract (three years at $3.8 million per year) to provide VoIP service to the state offices of US Senators. The contract covers hardware, software, training and help desks for more than 450 offices. Yes, there are still only 100 senators, but many have multiple state offices. The contract is with the Senate Sergeant at Arms, who handles the telecommunication and tech support for senators' state offices as well as their DC home base. The contract could actually total $26 million if the government picks up four one-year options.

Federal Communications Commission Chairman Tom Wheeler said commissioner Jessica Rosenworcel's fingerprints are on "so much of what this agency has done." Chairman Wheeler praised his fellow Democrat as she prepares to exit the commission following a fractious Senate's failure to vote her re-nomination by President Barack Obama. "You have been a long-term leader in communications policy on the FCC staff [a top advisor to former commissioner Mike Copps] on the Senate Staff [as a top advisor to former Senate Commerce chairman Jay Rockefeller] and here as a commissioner," said Chairman Wheeler. "I don't think that there is an end point on that leadership and expect to see a lot more out of you in the coming years continuing that great tradition."

Chairman Wheeler pointed to her early championing of Title II reclassification of Internet service providers. "I remember you saying to me, 'no, the way to go is Title II,'" he said. The "no" reference is because Wheeler's initial attempt to address a court remand of the original Open Internet order did not include reclassification. "You have always been attuned to the public safety community," he said, "and have been the champion of making sure that we live up to the first title of the Communications Act, which is public safety."

According to the Office of Management and Budget, OMB has just approved the added paperwork collection obligations of the Federal Communications Commission's Open Internet order enhanced transparency requirements. Those are the parts of the order that require ISPs to provide more information on network performance and business plans, some of which smaller operators say are disproportionately a burden on them financial and otherwise.The rules will go into effect Jan. 17.

That OMB approval came Dec. 15, the same day the FCC's one-year extension for the small business waiver of the enhanced transparency portion of its rules expired without an agreement on a renewal. To date, the waiver has not had any effect because the enhanced transparency rules were not in effect.

Ultimately, Federal Communications Commission Chairman Tom Wheeler had a clear sense of his mission, which was to make sure that broadband—the transformative technology of this century—was available to all—which he combined with a distrust of the marketplace. Chairman Wheeler is a famed student of history, which includes the struggles to get electricity to the farm wives still beating clothes on rocks well into the last century. Some can fault—and many in the industry do—how he chose to accomplish his task, but it is hard to argue against trying to get broadband to everyone.

Chairman Wheeler signaled from day one that he viewed the FCC as a consumer-focused agency and that they, not industry, were his constituency. But again, media companies argue that they serve consumers too and could serve them better freed from some of the regulations Wheeler imposed or refused to un-impose. He also made it clear that he viewed edge providers like Google and Facebook, as creative forces for good in need of protecting against Internet Service Providers and their monopoly conduit into the home.

The Federal Communications Commission did not extend the small operator waiver from the Open Internet order's enhanced transparency requirements by the Dec. 15 deadline. The FCC's Consumer and Governmental Affairs Bureau extended it in 2015 by a year. In a sense, not extending it does not have much practical effect because the enhanced transparency rules, from which operators are being exempted, have not even gone into effect yet. But industry compliance officers and lawyers like regulatory certainty, and this is not it.

FCC Chairman Tom Wheeler circulated an item extending the waiver, but commissioners could not agree on it. The sticking point remains the sub trigger at which the waiver takes effect. Republicans want it to apply to operators with 250,000 subs or fewer, while Democrats want to stick with the current, or until Dec. 15 current, 100,000 or fewer. Bills that passed the House and Senate Communications Subcommittee raised the trigger to 250,000 and some legislators this week were pushing the FCC to extend the waiver. The American Cable Association had been pushing for the waiver extension, so it was not pleased at the lack of regulatory certainty.

President-elect Donald Trump's Federal Communications Commission transition team has met twice with FCC Chairman Tom Wheeler, the chairman said at his post-meeting press conference. Chairman Wheeler said he had met once individually with team leader Jeff Eisenach and with all three members on a second occasion. He called them good meetings and said he made it clear that if there were any issues that came up, "I was the guy to call first to solve those." Chairman Wheeler has experience in transitions, having helped the Barack Obama Administration move in back in 2008 as an FCC transition team leader.