|FRIDAY - MARCH 30, 2007 - ISSUE NO. 255|
Dear Friends of Wireless Messaging,
Last year at the AAPC Wireless Forum in Myrtle Beach, South Carolina, I had the pleasure of meeting Hal Mordkofsky, a partner in the Law Firm of Blooston, Mordkofsky, Dickens, Duffy and Prendergast.
When I offered to send him my newsletter, he offered to send me his firm's newsletter as well. I found so many good things in his newsletter, that I asked for permission to quote portions of it in mine. Hal conferred with his partners and they gave me permission to do so. This has really added a great deal of valuable information about the wireless industry to this newsletter. Normally I include one or two medium-length articles from the “BloostonLaw Telecom Update” but this week is an exception. There are two major articles that I urge you to read.
Many thanks to the legal experts at Blooston, Mordkofsky, Dickens, Duffy and Prendergast. I take back all the lawyer jokes that I have told.
Now on to more news and views.
A new issue of The Wireless Messaging Newsletter gets posted on the web each week. A notification goes out by e-mail to subscribers on most Fridays around noon central US time. The notification message has a link to the actual newsletter on the Internet. That way it doesn't fill up your incoming e-mail account.
There is no charge for subscription and there are no membership restrictions. Readers are a very select group of wireless industry professionals, and include the senior managers of many of the world's major Paging and Wireless Data companies. There is an even mix of operations managers, marketing people, and engineers—so I try to include items of interest to all three groups. It's all about staying up-to-date with business trends and technology. I regularly get reader's comments, so this newsletter has become a community forum for the Paging, and Wireless Data communities. You are welcome to contribute your ideas and opinions. Unless otherwise requested, all correspondence addressed to me is subject to publication in the newsletter and on my web site. I am very careful to protect the anonymity of those who request it.
NOTE: This newsletter is best viewed at screen resolutions of 800x600 (good) or 1024x768 (better). Any current revision of web browser should work fine. Please notify me of any problems with viewing. This site is compliant with XHTML 1.0 transitional coding for easy access from wireless devices. (XML 1.0/ISO 8859-1.)
|AMERICAN ASSOCIATION OF PAGING CARRIERS|
|FEATURED ADVERTISERS SUPPORTING THE NEWSLETTER|
LogicaCMG Expects North American Messaging Surge
Posted to the site on 28th March 2007
LogicaCMG says that expects formidable messaging growth in North America and points to a number of indications that the region is on the verge of a surge in text messaging volumes. Based on both analyst and its own research, LogicaCMG is predicting that North American text messaging volumes will grow as much as 50 per cent in 2007 — a significant increase over previous years.
The growth will be spurred by a dramatic increase in mobile-to-mobile messaging in addition to applications such as American Idol's audience voting and Starbucks' SMS store finder.
LogicaCMG has seen similar developments in Western Europe and Asia-Pacific during the first years of this millennium. The combination of these factors resulted in an exponential growth in messaging demand and today, messaging revenues for operators in these regions typically run up to 30 per cent of total revenues. LogicaCMG projects that traffic in North America will be boosted even higher than in other parts of the world, because of the sheer size of its population and by better integration of SMS and instant messaging technologies.
According to LogicaCMG, it is critical at this stage of the market that operators maintain an excellent user experience and prevent issues such as service unavailability caused by overload of messaging infrastructure.
"There's real potential that a mobile messaging scenario could exist in North America where a combination of entertainment, business, and consumer-driven SMS traffic spikes so rapidly it overwhelms unprepared networks. This is a pattern LogicaCMG has seen in other parts of the world," said Wayne Irwin, President, LogicaCMG Telecoms, North America. "In order to manage this kind of growth and maintain service levels, operators must scale up messaging capacity effectively and stay ahead of demand. In addition, they must maintain an uncompromised quality of service under extreme traffic peaks that occur during an event such as American Idol. LogicaCMG is the ideal messaging partner for operators in North America with the experience and expertise that we have".
LogicaCMG recently announced the sale of its Telecoms Products business to a consortium of private equity buyers, subject to employee consultation and regulatory approval. Once the transaction closes the Telecoms Products business will trade under the new brand, Acision.
Source: Cellular News
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At cell show, a rare iPhone glimpse
By BRUCE MEYERSON, AP Technology Writer
ORLANDO, Fla. - Even the FCC chairman appears to have iPhone fever.
The new cell phone from Apple Inc. made a rare public appearance Tuesday during the keynote session at the CTIA Wireless 2007 trade show. It lasted just moments, but it was easily the highlight of an otherwise uneventful morning.
When AT&T Inc. Chief Operating Officer Randall Stephenson pulled out the gadget during his speech, the audience snapped to attention and the room lit with camera flashes.
And while Apple made sure to whisk the closely guarded device away from the convention center right after the speech, another keynote speaker managed to get his eager hands on it backstage beforehand: Kevin Martin, the chairman of the Federal Communications Commission.
"He spent more time with it than I did," Stephenson said in an interview afterward. For a minute, "It seemed like he wouldn't give it back," Stephenson joked.
It was Martin, Stephenson said, who quickly figured out the touch-screen navigation that the AT&T executive demonstrated minutes later during his speech.
The iPhone is expected to go on sale in June and will be offered exclusively by AT&T's Cingular Wireless unit, which is being re-branded under the AT&T name. Since it was unveiled in early January by Apple CEO Steve Jobs, more than 1 million people have asked AT&T to notify them when the iPhone becomes available, Stephenson said.
He acknowledged that Apple's secretive product development, previously unheard of in an industry where wireless service providers typically wield tremendous sway with device makers, generated some consternation within the company.
"There was some internal rankling, but this was one of those opportunities that you latch a hold of as a carrier," he said.
Tuesday marked only the second time Stephenson had held or seen an iPhone in person.
"I held it one time in a Cingular board meeting," but that unit wasn't operational, he said. "Today was the first time I could navigate it."
Then, as quickly as it began, all the fun and games came to an end — Apple style.
"A guy in blue jeans" took it away, Stephenson said.
Source: YAHOO! News
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FOR IMMEDIATE RELEASE
DANIELS and EFJohnson Announce Distribution Agreement
Victoria, BC, Canada – March 26, 2007 – Daniels Electronics Ltd., a leading supplier of high reliability radio base stations and repeaters for remote public safety applications, today announced it has entered into a distribution agreement with EFJohnson; a leading provider of two way radios and communication systems for law enforcement, fire fighters, EMS, and the military, to have EFJohnson distribute Daniels radios as part of EFJohnson’s Project 25 compliant solution for public safety, and covers the entire Daniels product line for applications throughout North America.
“Offering Daniels low current Project 25 digital base stations and repeaters in our system solution complements our product portfolio" said Michael E. Jalbert, chairman and chief executive officer of EFJ, Inc. "Now we can offer our customers a more complete solution when extremely low power, transportable or ruggedized outdoor installations are required. Daniels has an excellent reputation in the industry and we are pleased to be teaming with them in addressing our customer’s needs." Jalbert added.
“EFJohnson has a well established presence in the military sector and their strength enables us to provide our products into markets that we are unable to address alone”, said Robert Small, President and COO of Daniels Electronics. “We are pleased to be working with them and look forward to many years of joint success.”
About Daniels Electronics Ltd.
FOR IMMEDIATE RELEASE
DANIELS launches 470-520 MHz T-Band UHF Radios
Victoria, B.C. Canada - March 30, 2007 – Daniels Electronics Ltd., a supplier of high reliability radio equipment for public safety and natural resource applications, today announced the expansion of their UHF analog and digital P25 radio product lines to operate in the 470-520 MHz T-band.
“The addition of T-Band support on our radios allows Daniels Electronics to now offer our reliable, robust and low current radios to Public Safety and Natural resource customers that desire to use the 470-520 MHz T-Band for new radio services,” said Gerry Wight, Director of Marketing for Daniels Electronics. “The new T-Band radio supports both analog and digital P25 signaling across the 470-520 MHz band. In North America this band is 470-512 MHz and in Australia, the band extends up to 520 MHz. Daniels has designed the radio to support the full band allowing our products to be used in both markets.”
The Daniels T-Band Radio has the same modular form factor as other frequency bands supported by Daniels, allowing the new radio modules to fit in any existing Daniels subrack. It interfaces transparently to existing control cards and is firmware upgradeable to P25 allowing for a seamless upgrade to T-Band operation for any existing customer.
Daniels radios are known for their flexible modular construction which allows custom configurations for specialized applications. They are also noted for their robust construction, low current consumption and extreme temperature tolerance (-30º to +60º C) which has enabled them to be deployed in some of the world’s harshest environments such as Alaska and Siberia.
About Daniels Electronics Ltd.
For more information about Daniels Electronics, visit www.danelec.com.
Messaging & Cellular
Call Or E-mail For More Information
Apple ships WiFi-enabled Apple TV
March 26, 2007
Apple said it is now shipping Apple TV, a set-top box that allows users to wirelessly play their content from the PCs or Macs using a WiFi network. Apple says the product enables users to browse and view their digital media collections such as TV shows and music from up to 30 feet away using the Apple remote. The device features a 40 GB hard drive and can be connected to a variety of widescreen TVs and home theater systems via an HDMI port or component video or audio port. The Wall Street Journal gave it a thumbs up.
GTES has recently made the strategic decision to expanding its development activities to include wireless location technologies; a market that researchers forecast could reach $3.6 billion by 2010. In support of this new strategic direction, GTES has developed SHERLOC™ a complete one-stop wireless location service, providing the flexibility of being protocol neutral and network agnostic. Targeted at business customers who need to track their high-value shipments or better manage their service or delivery fleets, SHERLOC™ is a hosted application that combines configuration flexibility with ease of use.
GTES is offering SHERLOC™ services both directly and through authorized resellers. If your company has an interest in finding out how location services can enhance your revenue stream, and has the contacts and expertise to make you successful in the location marketplace, please contact us for further information at www.sherlocgps.com and select “Reseller Opportunities,” or call us at 770-754-1666 for more information.
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YP411 From AT&T's YELLOWPAGES.COM Brings Text Message Business Search to Consumer Cell Phones and PDA Devices
March 30, 2007 9:00 AM ET
YP411 Adds to YELLOWPAGES.COM's Premiere Mobile Services for Finding Local Businesses
Service Brings YELLOWPAGES.COM Advertisers and Business Listings Another Innovative Application to Reach Local Consumers
PASADENA, Calif., March 30 /PRNewswire-FirstCall/ — Finding local businesses is just one text message away as a result of a new service launched by YELLOWPAGES.COM ( http://www.yellowpages.com ), a subsidiary of AT&T Inc. T.
To use the service, consumers simply send a text message to YP411 (97411) with a business name or business category, along with a city and state or ZIP code. YELLOWPAGES.COM then returns text message results with up to three listings. Consumers can simply click the phone number included in the results to initiate a call to a business. Additionally, for phones and PDAs that support the capability, consumers can click the WAP link to see more details of the business such as a map or directions.
"As a part of our multimodal strategy, the YP411 text message service adds to the terrific value we are bringing to consumers and local businesses," said Matt Crowley, chief marketing officer of YELLOWPAGES.COM, AT&T. "With YP411, businesses found on YELLOWPAGES.COM have another way to reach consumers. This added distribution is free to all advertisers and businesses found on YELLOWPAGES.COM."
The launch of YP411 bolsters the menu of mobile search services that YELLOWPAGES.COM has rolled out over the past few months, including a Send-to- Mobile feature that allows Internet users to send search results from YELLOWPAGES.COM to their wireless phones in the form of a text message. The company also recently launched an optimized mobile browser interface as well as enhanced MEdia Net capabilities, including a single search box, available to subscribers of AT&T wireless service, formerly Cingular.
"YP411 adds to the growing suite of mobile search services YELLOWPAGES.COM is offering. Giving consumers the ability to text message search requests to five easy-to-remember characters is another way YELLOWPAGES.COM is extending its brand to help local consumers and businesses connect via the digital method of their choice," said Crowley.
There is no cost for consumers to use YELLOWPAGES.COM's YP411 service other than regular text messaging fees charged by their service providers.
A January 2007 eMarketer report projects that the U.S. market for mobile marketing will grow from about $421 million in 2006 to $4.8 billion in 2011. The report also projects that worldwide mobile ad spending as a proportion of worldwide online ad spending will reach 21 percent in 2011, up from 5.4 percent in 2006.**
The YELLOWPAGES.COM Network received approximately 1 billion searches in 2006.
This AT&T news release and other announcements are available as part of an RSS feed at http://www.att.com/rss .
*The unique visitor number for the YELLOWPAGES.COM Nationwide Network (Custom Entity) includes unduplicated visitors for the following sites: YELLOWPAGES.COM, AOL Yellow Pages, Switchboard, Yahoo! Local, Yahoo! Yellow Pages and AnyWho.
AT&T is a registered trademark of AT&T Knowledge Ventures. Subsidiaries and affiliates of AT&T Inc. provide products and services under the AT&T brand.
Source: MSN Money Central
We at Unication have listened and delivered.
About Unication Co., Ltd.
|BLOOSTON, MORDKOFSKY, DICKENS, DUFFY & PRENDERGAST, LLP|
BloostonLaw Telecom Update
FCC Proposes $100k Fines For CPNI Violations
The FCC has proposed $100,000 fines against three carriers for their failure to comply with customer proprietary network information (CPNI) requirements. The Commission has been investigating the practices of “data brokers,” who have advertised the availability of wireless subscriber records for a fee. As part of its investigation, the FCC has requested CPNI compliance certifications and statements from certain wireless carriers. The Commission issued Notices of Liability for Forfeiture in the amount of $100,000 to three wireless carriers for the following reasons:
Amp’d Mobile Inc.’s response did not contain a statement explaining how its operating procedures are in compliance with the FCC’s CPNI rules.
CTC Communications’ response did not contain a statement by an officer with personal knowledge that the company operating procedures were adequate to comply with the CPNI rules.
Easterbrooke Cellular did not maintain written compliance certificates for the previous five years.
Each of these carriers will have the opportunity to submit further evidence to persuade the Commission to either cancel or reduce the amount of the proposed fine. Many rural telcos and small carriers have received similar inquiries regarding their CPNI compliance.
BloostonLaw has available a Model CPNI Compliance Certification, and a template for the CPNI Compliance Statement that must be attached to it. Clients should contact us for these models and use them to complete the appropriate paperwork for this year, and for each succeeding year going forward. If you have any questions regarding this matter, contact Gerry Duffy (202-828-5528) or Mary Sisak (202-828-5554) of this office.
FCC Classifies Wireless Broadband Internet Access As “Information Service”
Commissioner Copps Raises “Carterfone” Issues In His Concurring Statement
The FCC, at last Thursday’s open meeting, declared that wireless broadband Internet access service is an “information service” under the Communications Act. This action is designed to place wireless broadband Internet access service on the same regulatory footing as cable modem, digital subscriber line (DSL), and broadband over power line (BPL)-enabled Internet access service. The Commission’s cable modem declaratory ruling was affirmed by the U.S. Supreme Court in National Cable & Telecommunications Association v. Brand X Internet Services in June 2005. The Commission subsequently issued its DSL and BPL Internet access orders (BloostonLaw Telecom Update, September 28, 2005; and November 8, 2006). However, this action creates an unequal treatment of calls made via wireless VoIP versus other wireless calls. In the customers’ eyes, these two types of calls are functionally equivalent.
Wireless broadband Internet access service is defined as a service that uses spectrum, wireless facilities, and wireless technologies to provide subscribers with high speed Internet access capabilities. Wireless broadband Internet access service can be provided using mobile, portable, or fixed technologies, and wireless broadband technologies can transmit data over short, medium, or long ranges.
Specifically, the FCC’s declaratory ruling finds that the transmission component underlying wireless broadband Internet access service is “telecommunications,” and that the provision of this telecommunications transmission component as part of a functionally integrated wireless Internet access service is an “information service.”
This approach is consistent with the framework that the Commission already has established for cable modem service, wireline broadband Internet access service, and BPL-enabled Internet access service, thus furthering the goal of regulating like services in a similar manner. The FCC also found that wireless broadband Internet access service using mobile technologies is not a “commercial mobile radio service” (CMRS), as that term is defined in the Act and implemented in the FCC’s rules.
The FCC noted that its ruling is limited to broadband Internet access services and does not implicate narrowband data services (e.g., one-way paging). For purposes of this proceeding, the FCC defines the line between broadband and narrowband consistent with the Commission’s definition in other contexts (i.e., services with over 200 kbps capability in at least one direction).
In the text of its declaratory ruling, the FCC stated:
“In the Cable Modem Declaratory Ruling, the Wireline Broadband Internet Access Services Order, and the BPL-Enabled Internet Access Services Order, the Commission addressed the proper classification for broadband Internet access service provided over cable system facilities, wireline facilities, and BPL facilities, respectively. In each case, the Commission determined that the broadband Internet access service in question should be classified as an information service.
“The Commission determined that cable, wireline, and BPL providers offered broadband Internet access as a single, integrated service (i.e., Internet access) that inextricably combined the transmission of data over cable or wireline networks with computer processing, information provision, and computer interactivity, enabling end users to run a variety of Internet applications such as email, newsgroups, and interaction with or hosting of web pages.
“These applications, the Commission held, ‘encompass the capability for “generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications,” and taken together constitute an information service as defined by the Act.’ In Brand X, the Supreme Court upheld the Commission’s findings that broadband Internet access service offered via cable modem is an integrated information service, and that the transmission component of that service is not a telecommunications service.
“In view of the statutory provisions, Commission precedent, and the Brand X decision, we find that wireless broadband Internet access service is similarly an ‘information service.’ Like cable modem service, wireline broadband Internet access service, and BPL-enabled Internet access service, wireless broadband Internet access service offers a single, integrated service to end users, Internet access, that inextricably combines the transmission of data with computer processing, information provision, and computer interactivity, for the purpose of enabling end users to run a variety of applications.
These applications, identical to those provided by cable modem service, wireline broadband Internet access, or BPL-enabled Internet access, ‘taken together constitute an information service as defined by the Act.’ Accordingly, we find that wireless broadband Internet access service meets the statutory definition of an information service under the Act.”
The decision does not affect the general applicability of the spectrum allocation and licensing provisions of Title III and the Commission’s rules to this service. These provisions and rules continue to apply because the service is using radio spectrum. Further, the decision does not alter the obligations of wireless broadband Internet access providers under the Communications Assistance for Law Enforcement Act (CALEA).
FCC Chairman Kevin Martin said that the Commission’s “action is particularly timely in light of the recently auctioned [Advanced Wireless Services] AWS-1 spectrum for wireless broadband and our upcoming 700 MHz auction.”
Commissioner Robert McDowell wanted to remind providers of wireless broadband Internet access services that any consumer protection obligations adopted in other related proceedings are extended to them. He also emphasized that the declaratory ruling does not affect application of the spectrum allocation and licensing provisions of Communications Act Title III, the associated Commission rules, and corresponding protections.
“In this regard,” he said, “we clarify the following:
Finally, McDowell said, “we reiterate the Commission’s commitment to enforce the accessibility policy embodied in Section 255 of the Act (regarding persons with disabilities). All Americans, regardless of physical ability, should be able to benefit from competitive broadband Internet service offerings.”
Commissioner Michael Copps only concurred in the decision “because in light of the Commission’s post-Brand X decisions, [this] outcome has long been inevitable,” he said. “I nevertheless want to reiterate my view that consigning broadband services to an indeterminate Title I regulatory limbo is no substitute for a genuine national broadband strategy. It doesn't give either businesses or consumers the kind of certainty that they are entitled to. And I simply cannot accept, when the stakes are so high, that deferring difficult decisions—rather than actually making them—constitutes a responsible regulatory framework,” he said.
Commissioner Jonathan Adelstein also concurred, and he expressed similar concerns over the Brand X climate. Additionally, he stated that “one suggested reason for this decision is that it will provide regulatory certainty to wireless broadband Internet service providers. But we must be careful in drawing such a bright line between wireless broadband services and commercial mobile services and the regulatory protections that come with CMRS status. Those protections can be important for many small wireless providers, so we must be careful not to violate the tenet of ‘First, Do No Harm’ in drawing such a firm distinction. Moreover, to get to that distinction, the Commission engages in some legal gymnastics, particularly the conclusion that an interconnected mobile wireless broadband Internet access service should not be considered a commercial mobile service. In our bid to provide regulatory certainty, we must be careful not to leave providers to rely on such a tenuous legal framework.”
Commissioner Copps, however, raised some interesting issues in his concurring statement. He suggested considering Apple’s much-anticipated iPhone, which allows a user to communicate via Internet Protocol (IP)based Wireless Fidelity (Wi-Fi) technology as well as traditional CMRS service. Under the FCC’s precedent, he said, a consumer who uses the CMRS features of the device to place a phone call can be secure in the knowledge that the Communications Act Title II customer proprietary network information (CPNI) rules require the carrier to protect his or her call and location information.
“But what about when that very same consumer uses that very same device just moments later to send an email via Wi-Fi, to call up a map of his or her location via a browser, or even to place a VoIP call to another Internet user?” Copps asked. “Because those services— which the customer can be excused for thinking of as functionally identical to the CMRS call—are now classified as Title I information services, the carrier appears to be entirely free, under our present rules, to sell off aspects of the customer’s call or location information to the highest bidder. Caveat emptor, indeed!,” Copps said.
Commissioner Copps noted that in 2005, the FCC issued a policy statement adopting four principles applicable to Internet access services, including that “consumers are entitled to connect their choice of legal devices that do not harm the network” (BloostonLaw Telecom Update, September 28, 2005). “Now that IP-based wireless services are classified as Title I information services,” Copps said, “the inescapable logical implication of our 2005 decision is that the right to attach network devices—as well as the three other principles of our policy statement— now applies to wireless broadband services.”
Copps said he believes the FCC has a responsibility to open a rulemaking that will clarify how these Title I principles should be applied in the wireless context. “I also believe we should include questions about how and whether the classification of CMRS services as Title II services incorporates the principle of the seminal 1968 Carterfone decision. I believe that our answers to these questions—or our failure to answer them—will have a direct impact on the pace of technological innovation in the years ahead and on the extent to which consumers can take full advantage of that innovation,” Copps said.
“Indeed, as the Commission has already recognized in a host of areas—such as Carterfone’s discussion of the PSTN [public switched telephone network],” the Commissioner continued, “our 2005 Policy Statement’s discussion of the Internet, and our rules on cable set-top boxes—consumers generally benefit when they can select from among a range of network attachments, including devices not chosen for them by their service provider.”
Copps said he would have preferred that the declaratory ruling on wireless broadband Internet access would have included an Notice of Proposed Rulemaking (NPRM) on the “wireless Carterfone” issues.
Interestingly, Copps did not mention the Skype petition to open the wireless industry via the Carterfone rules (BloostonLaw Telecom Update, February 28). Comments in that RM -11361 proceeding are due March 30. Skype had asked the Commission to subject the wireless industry to the Carterfone rules, which would allow consumers to use devices and software of their choice on mobile phone networks. The Carterfone rules, which were enacted in 1968 during the old Bell System monopoly era, allow consumers to hook any device up to the landline phone network, so long as it does not harm the network.
The Carterfone Decision: The FCC’s Carterfone Order was adopted on June 26, 1968. Essentially, the case involved the referral of an antitrust suit from a federal district court (affirmed by the 5th U.S. Circuit Court of Appeals in New Orleans) to the Commission in which Carter Electronics Corp. alleged that AT&T was illegally preventing the interconnection of the Carterfone product to the PSTN.
The Carterfone itself was an acoustic coupler for land mobile radios. Invented by Tom Carter, it was used to allow radio-equipped oil field drill rigs to patch calls into the telephone network.
In its 1968 Order, the FCC defined the Carterfone device as follows:
AT&T, acting in accordance with its interpretation of tariff FCC No. 132, filed April 16, 1957, advised its subscribers that the Carterfone, when used in conjunction with the subscriber's telephone, is a prohibited interconnecting device, the use of which would subject the user to the penalties provided in the tariff.
But the Commission decided that the “Carterfone fills a need, and that it does not adversely affect the telephone system.” As a result, the FCC held that AT&T’s tariff was “unreasonable” in that it prohibited “the use of interconnecting devices which do not adversely affect the telephone system.”
8th Circuit Affirms FCC Order To Preempt State PUCs Over Regulating VoIP Services
As we noted in a news bulletin last week, the 8th U.S. Circuit Court of Appeals in St. Louis affirmed the FCC’s Vonage Order, which preempted state regulation of voice over Internet protocol (VoIP ) service after the agency determined it would be impractical, if not impossible, to separate the intrastate portions of VoIP service from the interstate portions. Thus, in its November 2004 order, the FCC concluded that state regulation of VoIP would conflict with federal rules and policies. In Minnesota Public Utilities Commission, et al. v. FCC (consolidated cases beginning at No. 05-1069), the 8th Circuit denied several petitions for review that challenged the FCC’s order and also concluded that a New York Public Service Commission petition was not ripe for review.
Three years ago, the Minnesota PUC ordered Vonage Holdings Corp., which offers a VoIP service called “DigitalVoice,” to comply with state regulations governing telephone services—i.e., Vonage was directed to obtain a service permit and file tariffs listing prices, terms and conditions, etc., or cease and desist providing its Digital-Voice service. Vonage filed a petition with the FCC to preempt the PUC on the grounds that it was a provider of “information services,” rather than “telecommunications services.”
Vonage also filed suit in federal district court, seeking to enjoin the PUC’s cease and desist order. The district court agreed with Vonage and granted a permanent injunction barring the PUC from enforcing its cease and desist order. The court concluded that Vonage was providing an “information service” not subject to state regulation. The PUC appealed.
In November 2004, while the Minnesota PUC’s appeal was pending before the 8th Circuit, the FCC issued its now-famous Vonage Order. In this decision, the FCC did not address whether Vonage’s VoIP service should be classified as an “information” or “telecommunications” service. Rather, the FCC determined that it was appropriate to preempt state regulation because it was “impossible or impractical” to separate the intrastate components from the interstate components of VoIP service.
Shortly after the FCC’s Vonage Order, the 8th Circuit concluded that the Commission’s decision was binding with respect to the Minnesota PUC’s appeal of the permanent injunction barring enforcement of the cease and desist order, unless and until an aggrieved party invoked jurisdiction under the Hobbs Act. Put simply, the 8th Circuit could not rule on the merits of the FCC’s Vonage Order, because that was not the issue before the court— the issue was an appeal of a Minnesota PUC decision. Under the Hobbs Act, an appeals court cannot have jurisdiction over an FCC order unless it receives a petition to review it. Subsequently, several petitions for review were filed in various appeals courts, and they were transferred and consolidated in the 8th Circuit.
The 8th Circuit determined that there were four primary issues to consider: (1) Did the FCC fail to make a threshold determination about whether VoIP services were “information services” or “telecommunications services”?; (2) Is the Vonage Order arbitrary and capricious because the FCC determined it is impractical or impossible to separate the intrastate from the interstate components of VoIP service?; (3) Does state regulation of VoIP conflict with federal policies?; and (4) Does the order preempt E911 service requirements? A fifth issue was raised by the New York Public Service Commission (PSC) about whether the FCC’s order arbitrarily preempted “fixed” VoIP services by cable TV companies, even though the intrastate components of such service can be more easily be separated from the interstate components of such services.
According to the PSC, end users making telephone calls via fixed VoIP networks to other users of fixed VoIP or to landline customers are making calls with known endpoints, and it is therefore possible to identify intrastate calls. Thus, it is not impossible to separate the intrastate and interstate components.
The PSC contended that the FCC’s analysis may apply to state regulation of nomadic services, such as Vonage’s DigitalVoice, but cannot justify preemption of fixed services because the geographic locations of users placing calls over fixed VoIP services can be readily identified and the calls can be regulated by the state.
The FCC argued that this issue is not ripe for judicial review because the order states “to the extent other entities, such as cable companies, provide VoIP services, we would preempt state regulation to an extent comparable to what we have done in this order” (emphasis added). The FCC argued that the language is at most a prediction of what it might do if faced with the issue of fixed VoIP service.
As a result, the 8th Circuit concluded that the New York PSC’s challenge was not ripe for review. “The order only suggests the FCC, if faced with the precise issue, would preempt fixed VoIP services,” the court said. “Nonetheless, the order does not purport to actually do so and until that comes, it is only a mere prediction.”
Further, the court pointed to the FCC’s June 2006 Universal Service Contribution Methodology Order, in which the Commission noted that interconnected VoIP providers who can track the geographic end points of their calls do not qualify for the preemptive effects of the Vonage Order.
The FCC language cited by the court is as follows: “An interconnected VoIP provider with a capability to track the jurisdictional confines of customer calls would no longer qualify for the preemptive effects of our Vonage Order and would be subject to state regulation. This is because the central rationale justifying preemption set forth in the Vonage Order would no longer be applicable to such an interconnected VoIP provider.”
The 8th Circuit’s ruling is curious at best. It recognizes the contradiction between the FCC’s Vonage Order, which says it is impractical, if not impossible, to separate the interstate and intrastate components of VoIP, and the VoIP E911 Order, which requires VoIP service providers to do virtually the opposite, and actually pinpoint the geographic locations of callers. And with the New York PSC petition, the 8th Circuit argues that you have to go back in time and stick to the facts as they were then and not now. Yet the court rationalizes both issues by allowing the FCC to resolve the apparent contradictions.
In both instances, the court is relying on what we might call the “Brand X” climate to grant extraordinary deference to the FCC as the “expert agency.” In
National Cable & Telecommunications Association v. Brand X Internet Services, the U.S. Supreme Court ruled in June 2005 that the FCC acted properly in declaring cable modem offerings as “information se r-vices.”
In that case , the high court essentially invoked the so-called Chevron standard and deferred to the FCC the authority to interpret and apply the statutory definitions of “telecommunications,” “telecommunications service,” and “information service” under the Communications Act. (Under Chevron U.S.A. v.
Natural Resources Council, a court is required to grant deference to an “expert agency” when there is statutory ambiguity, and the agency’s interpretation is “reasonable.”) Thus, the Supreme Court majority found that the FCC’s interpretation was a reasonable policy choice. This incurred the wrath of Justice Antonin Scalia, who, in his dissent, raged that the FCC once again had “concocted a whole new regime of regulation under the guise of statutory construction,” and got away with it.
But even FCC Chairman Kevin Martin—indeed a beneficiary of the Supreme Court’s Brand X decision—subsequently expressed concern about it. In an address to the American Bar Association Law Conference last fall, he said: “Having the ability to adopt a less burdensome regulatory scheme for broadband services was critical to the Commission from a policy perspective. But I note that I agree with some of the concerns about the breadth of discretion available to our or any administrative agency as a result of that [Brand X] decision.”
It may seem ironic then that the 8th Circuit, in its Minnesota PUC v. FCC ruling, cites NCTA v. Gulf Power: “Decision-makers sometimes dodge hard questions where easier ones are dispositive.” And that certainly is what the 8th Circuit did in this case.
BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
Selected BloostonLaw Telecom Update references: “FCC Defines Cable Modem as ‘Information Service’ in Interstate Jurisdiction” (BTU, March 20, 2002); ); “9th Circuit Strikes Down FCC Cable Modem Definition” (BTU, Oct. 8, 2003); “Minnesota Court Determines Vonage’s VoIP Offering is an ‘Information Service’ not Subject to Title II Regulation” (BTU, Oct. 22, 2003); “9th Circuit Turns Down FCC Request for En Banc Review of ‘Cable Modem’ Decision” (BTU, April 7, 2004); “Vonage Pleads to FCC after New York PSC’s VoIP Ruling” (BTU, May 26, 2004); “FCC Appeals 9th Circuit’s ‘Brand X’ Cable Modem Decision to High Court” (BTU, Sept. 8, 2004); “FCC Preempts Minnesota Over Vonage’s VoIP Offering” (BTU, Nov. 10, 2004); “Vonage Order Limits Ruling to Jurisdictional Issue, But Leaves Bigger Questions for IP-Enabled Services Docket” (BTU, Nov. 17, 2004). “8th Circuit Says Vonage Wins in Minnesota VoIP Litigation: California Asks 9th Circuit to Review FCC Vonage Ruling” (BTU, Jan. 5, 2005); “Four States, NASUCA, Appeal FCC’s ‘Vonage Order’ on VoIP” (BTU, Jan. 12, 2005); “Supreme Court Affirms FCC that Cable Modem is ‘Info Service’ in ‘Brand X’ Case” (BTU, June 29, 2005); “FCC’s Order on VoIP-E911 Becomes Effective on July 29” (BTU, June 29, 2005); “Chairman Martin Warns of Providing FCC with Too Much Discretion” (BTU, Nov. 1, 2006).
Source: Blooston, Mordkofsky, Dickens, Duffy and Prendergast, LLP
For additional information, contact Hal Mordkofsky at 202-828-5520 or email@example.com
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Nighthawk Systems Enhances Product Offering,
SAN ANTONIO, TX – 3/29/07- Nighthawk Systems, Inc. (OTC BB: NIHK), a leading provider of intelligent wireless power management and emergency notification solutions, announced today that El Paso Electric has placed an additional order for several hundred Nighthawk CEO700 remote power disconnect units as part of a growing automation program at the utility. Nighthawk also announced that, in conjunction with the order, Nighthawk is developing a Web-enabled interface that will be used by El Paso to manage the devices being purchased, in addition to the devices already purchased by them.
H. Douglas Saathoff, Nighthawk’s CEO, commented, “To put it simply, the easier our products are to use, the more of them we will sell. The Web-enabled interface that we are developing with El Paso will make it easier for El Paso and other customers to manage and use Nighthawk devices. Customers that have a desire to utilize thousands of devices like El Paso Electric need the ability to easily track and activate the units and produce reports on their use. This solution will allow El Paso to ‘point and click’ devices from a database in order to activate them via Nighthawk and the American Messaging wireless network.”
Mr. Saathoff continued, “We look forward to finalizing this program with El Paso over the coming weeks, and rolling it out to our existing customer base during the second quarter of this year. It is our goal to become much more than an equipment vendor to our customers – we want to be a solutions provider for them. Assisting with the automation process gives us the opportunity to become partners with our customers as their programs continue to evolve.”
Nighthawk’s CEO700 gives electric utilities the ability to remotely disconnect and reconnect power to residential electric meters, saving them significant time and money over the traditional manual methods requiring truck rolls and field personnel. In September 2006, Nighthawk Systems and American Messaging announced they had strengthened their joint marketing agreement to take advantage of their core competencies and provide the best wireless remote control solutions possible to their customers.
About Nighthawk Systems, Inc.
Nighthawk is a leading provider of intelligent wireless power control products that enable simultaneous activation or de-activation of multiple assets or systems on demand. Nighthawk's installed customer base includes major electric utilities, Internet service providers and fire departments in over 40 states. Nighthawk's products also enable custom message display, making them ideal for use in traffic control and emergency notification situations.
Individuals interested in Nighthawk Systems can sign up to receive email alerts by visiting the Company’s website at www.nighthawksystems.com.
Statements contained in this release, which are not historical facts, including statements about plans and expectations regarding business areas and opportunities, acceptance of new or existing businesses, capital resources and future business or financial results are "forward-looking" statements. You should not place undue reliance on these forward-looking statements. Such forward-looking statements are subject to risks and uncertainties, including, but not limited to, customer acceptance of our products, our ability to raise capital to fund our operations, our ability to develop and protect proprietary technology, government regulation, competition in our industry, general economic conditions and other risk factors which could cause actual results to differ materially from those projected or implied in the forward-looking statements. Although we believe the expectations reflected in the forward-looking statements are reasonable, they relate only to events as of the date on which the statements are made, and our future results, levels of activity, performance or achievements may not meet these expectations. We do not intend to update any of the forward-looking statements after the date of this press release to conform these statements to actual results or to changes in our expectations, except as required by law.
• FIREHOUSES • SCHOOLS • PUBLIC FACILITIES • GOVERNMENT FACILITIES • EMERGENCY ROOMS •
WHAT DO FEDERAL AND STATE GOVERNMENT AGENCIES, FORTUNE 500 COMPANIES, WISPS, HAVE IN COMMON?
THEY ALL USE NIGHTHAWK.
Nighthawk Systems Inc. manufactures low cost and reliable remote control products for fire house alerting, volunteer alerting, activation of warning signs and sirens, and a number of applications for public safety. The Company manufactures the EA1 and the FAS-8 which have been designed specifically for these applications. Both products are paging based and will work with any public or private paging network. They are available in all VHF, UHF, and 900 MHz paging frequencies. The products can serve as the primary notification system or an excellent, low-cost backup to existing systems.
The EA1 is the solution for remotely activating public warning signage. Examples include tornado sirens, flash flood warnings, fire danger, Amber Alert, icy roads, etc. The EA1 can also send text messages to scrolling signs. This can occur in conjunction with the activation of audible alarms and visual strobes. This is ideal for public notification in buildings, schools, hotels, factories, etc. The group call feature allows for any number of signs or flashing lights to be activated at the same time over a wide geographic area. In addition, the EA1 Emergency Alert is the perfect solution for low cost yet highly effective alerting of volunteer fire fighters in their home. When activated the EA1 will emit an audible alarm and activate the power outlet on the units faceplate. A common setup is to simply place the EA1 on a table and plug a lamp into the faceplate. When paged from dispatch or any touch tone phone the EA1 will awaken the fire fighter to a lit room. As an option the EA1 can be ordered with a serial cable, allowing for attachment of a serial printer. When paged the alphanumeric message will be printed out at the same time the alarm sounds and the outlet is activated. The EA1 is an ideal complement to alphanumeric belt pagers common to volunteers.
The FAS-8 is designed for activating one or more relays in a firehouse and if desired, printing the alphanumeric message to a serial printer. For this application the FAS-8 is set to activate upon receiving the proper paging cap code sent from 911 dispatch. Up to eight different devices can be activated all with individual time functions. The most common devices to turn on include the PA amplifier, audible wake up alarm, and house lights. The most common device turned off is the stove. The FAS-8 can accept up to 8 different cap codes and have separate relay and time functions per cap code. This allows for different alerting to be accomplished at the same physical location depending upon which cap code is sent. This can be very helpful when fire crews and medical crews are housed in the same building.
Put the innovative technology of Nighthawk to work for you. For more information on any of our products or services, please contact us.
Nighthawk Systems, Inc.
Download Mr. Mercer's resumé. CLICK HERE
Complete Technical Services For The
Ira Wiesenfeld, P.E.
DANIELS™ ELECTRONICS LTD.
Please click here to e-mail Ayrewave.
$500.00 FLAT RATE
TAPS—Texas Association of Paging Services is looking for partners on 152.480 MHz. Our association currently uses Echostar, formerly Spacecom, for distribution of our data and a large percentage of our members use the satellite to key their TXs. We have a CommOneSystems Gateway at the uplink in Chicago with a back-up running 24/7. Our paging coverage area on 152.480 MHz currently encompasses Texas, Oklahoma, New Mexico, Louisiana, and Kansas. The TAPS paging coverage is available to members of our Network on 152.480 MHz for $.005 a transmitter (per capcode per month), broken down by state or regions of states and members receive a credit towards their bill for each transmitter which they provide to our coverage. Members are able to use the satellite for their own use If you are on 152.480 MHz or just need a satellite for keying your own TXs on your frequency we have the solution for you.
TAPS will provide the gateways in Chicago, with Internet backbone and bandwidth on our satellite channel for $ 500.00 (for your system) a month.
Contact Ted Gaetjen @ 1-800-460-7243 or firstname.lastname@example.org CLICK TO E-MAIL
|LETTERS TO THE EDITOR|
On Mar 20, 2007, at 10:16 PM, Jack Baker wrote:
Subject: Re: source for electronic crystals
I hope you remember me, I am the guy in Mtn Home AR that you came all that way to see.
I have a project which I am working on and need your help. I was buying crystals for less than $1.50 from Century Manufacturing in OK. They were bought out by International Crystal and the price went to $7 or more. This made my project to expense to produce.
I have a demand for the device, but the cost of a new crystal from International is out of bounds.
I have been unable to locate another inexpensive source.
I would like to know if anyone has tried to re-manufacture crystals, i.e.; change frequency.
Thanks, for listening hope all is well.
Jack Baker, formerly Mountain Communications
Editor's Note: We used to take apart the old-fashioned crystals and raise or lower the frequency by a small amount with a couple of home-brewed tricks like sanding down the crystal blank or simply scribbling on it with a lead pencil. But I fear that modern crystals cannot be so easily taken apart with a screwdriver. Jack is a great guy. Can anyone help him?
Subject: FCC Fines for non-CPNI Compliance
Date: March 29, 2007 2:30:24 PM CDT
Recently, the FCC has been leveling $100,000.00 fines against some carriers for not complying with the Commission's Customer Proprietary Network Information (CPNI) rules. (See the FCC's Daily Digest)
In late January, I sent you a note regarding Commercial Mobile Radio Service (CMRS) carriers (Paging, PCS and Cellular) compliance with the FCC Customer Proprietary Network Information (CPNI) rules. Although I suggested carriers needed to file their Compliance Certification with the Commission, it turned out sending the Certifications to the FCC was not necessary.
However, all telecommunications carriers should be aware they are required to keep on record, a Compliance Certification for each year for at least the previous 5 years. Apparently, as a result of the FCC's audits of carriers including Cellular and PCS companies, the Commission has discovered that some of these carriers are failing to comply with Section 64.200(e) of the Commission's rules. The result, if a carrier ignores this obscure requirement, is a significant fine for non-compliance with some relatively simple paperwork.
Interconnection Services, Inc.
2377 Seminole Dr.
Okemos MI 48864
OFC: 517 381 0744
FAX: 805 980 5887
Subject: Misc. Glenayre equipment
Date: March 18, 2007 4:36:27 PM CDT
A few months ago you had someone looking for Glenayre 900 MHz 2-way paging transmitters and parts.
I have 15 or so of the Sonic MC1000 ReFLEX receivers that I would like to sell and a couple of complete transmitters. I also have A OT of Unipage paging terminal card, cages, memory drives, etc. One could easily make several terminals with what I have. I have new old stock Unipage cards.
Please let me know what I have to do to put this in your weekly newsletter.
Knox La Rue
La Rue Communications
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That's all for this week.
With best regards,
P.O. Box 13283
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