The FCC is likely to change its approach to net neutrality after losing a case Tuesday where enforcement of 2005 principles of ISP conduct was at issue, advocates for and opponents of new mandates told us. The U.S. Court of Appeals for the D.C. Circuit ruled that the commission lacked ancillary authority to censure Comcast’s network management practice of blocking peer-to-peer transmissions, as was expected (CD Feb 3 p2). The D.C. Circuit said it was unpersuaded by commission arguments that Sections 1, 230(b), 623, 706 and other parts of the Communications Act made the 2008 order within the scope of its congressional authority. Congress’ role is to facilitate “fresh” discussion on net neutrality, get consensus among all stakeholders and write a law, said House Communications Subcommittee Chairman Rick Boucher, D-Va.

Company and government officials sought government policies that would let more consumers manage energy consumption using Web-enabled devices, they said at a briefing hosted by Google and the Climate Group Tuesday. Meanwhile, positive signs were seen on Capitol Hill on efforts that could meet the Obama administration’s goal of a comprehensive energy plan, said Carol Browner, assistant to the president for energy and climate change.

Two draft items to be voted on at the FCC’s April 21 meeting would take different approaches to making it easier for pay-TV subscribers to use devices not supplied directly from those companies to get video, Web and other content, numerous commission and industry officials said. A CableCARD rulemaking notice for all cable operators, with a partial exemption for small systems, deals with ways subscribers can use CableCARDs with plug-and-play devices, the officials said. An inquiry on all-video devices would have cable, satellite and telco-TV providers offer small, inexpensive devices so subscribers could connect to their networks using third-party gear, they said. The devices would contain the proprietary information to connect to the network of a particular provider, they said.

Verizon’s FiOS set-tops are 3D-ready, and the telco plans to offer service through its fiber network later this year. But getting 3D programming from competitors that develop and distribute content remains an issue, Verizon said, saying “integrated operators should not withhold programming options from the marketplace."

The FCC’s April 21 meeting will start the agency on the long road to implementing the National Broadband Plan. The FCC will take up items touching on the future of the Universal Service Fund, data roaming, an area discussed by the plan, and two media items on network-gateways and CableCARD rules, also in the plan (CD April 1 p4), officials said. Dozens of other plan-related items await commissioner attention. Industry and FCC officials expect an active year as the agency moves forward on implementing the plan.

With retransmission consent established for many network-affiliated TV stations, some industry officials agree fee-collecting stations arguably have a financial disincentive to invest in their terrestrial signal because they would want as many viewers as possible on pay-TV platforms that pay them monthly fees. Over-the-air viewers generate no similar fees and an unreliable over-the-air signal could drive them to pay-TV. But stations have political and other financial incentives to provide high-quality DTV signals to homes in their markets, executives said. “They are definitely getting a significant fee from their retrans agreements, but it’s not the majority of their income,” said President Richard Schneider of Antennas Direct. “They still very much want to service their over-the-air viewers as well and they're not at all interested in sabotaging it."

A Global NAPS petition for a declaratory ruling regarding tariff treatment of VoIP traffic drew comments mostly supporting denial, but others, like the Voice on the Net Coalition, want the petition granted. Global asked the FCC to clarify that state commissions can’t subject VoIP traffic to intrastate tariffs, and that if a carrier’s traffic is nomadic VoIP, the remainder of its traffic should be treated as interstate. Large and rural-size carriers and several telecom associations opposed Global’s claims that carriers forwarding VoIP traffic shouldn’t be subject to interstate or intrastate access charges.

Some analysts warned that Apple’s iPad may strain AT&T’s network, but a carrier spokesman said it’s ready. A Wi-Fi-only was to be released Saturday in all Apple stores and most Best Buy stores, to be followed next month by a version that can also use 3G. Meanwhile, media companies are rushing to deliver iPad applications. ‎

Prospects for passage of legislation requiring terrestrial radio stations to pay a royalty to performers for the music they broadcast seem little changed after the administration backed it (CD April 2 p10), said six broadcast industry officials we surveyed. Music label representatives said they're hopeful that the Performance Royalty Act (H-848 and S-379) will pass this Congress or that their industry and broadcasters will agree on a framework for royalties. Discussions have taken place between industry representatives, said people from both businesses. The Commerce Department Thursday offered “strong” support for performance royalties and said the Office of Management and Budget didn’t object to that view as reflecting the administration of President Barack Obama’s “program."

Observers questioned the cybersecurity and privacy recommendations in the National Broadband Plan, in a panel discussion at George Washington University Law School late Thursday. The plan calls for a larger cybersecurity role for the FCC, but that might be a reach for the commission, said Jim Harper, the Cato Institute’s director of information policy studies. Just because the FCC handles communications, that doesn’t mean it knows cybersecurity well, he said.