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wireless messaging newsletter

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FRIDAY - NOVEMBER 21, 2008 - ISSUE NO. 337

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BLOOSTON LAW

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BloostonLaw Telecom Update

Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP

[Selected portions reproduced here with the firm's permission.]

www.bloostonlaw.com

   Vol. 11, No. 42 November 19, 2008   

Dingell, Stupak Invite Martin To Testify Before FCC Oversight Report On Practices Is Released

In a November 14 letter, House Energy and Commerce Committee Chairman John Dingell (D-Mich.) and Bart Stupak (D-Mich.), Chairman of the Subcommittee on Oversight and Investigations, have asked FCC Chairman Kevin Martin to be interviewed by Committee staff regarding “FCC regulatory and management issues outlined in our letters of December 3, 2007, January 8, 2008, and March 12, 2008.”

Dingell’s committee has been investigating Martin’s management practices, particularly such things as meeting delays and time for other Commissioners to consider proposed orders, since earlier this year (BloostonLaw Telecom Update, March 19). Martin has responded that he has not done anything differently than any other Chairman. In fact, he has said, he has even posted items for consideration at open meetings three weeks in advance.

Nevertheless, the Dingell-Stupak letter of November 14 states that the House Commerce Committee staff has been unable to arrange an interview with Chairman Martin. It notes that the Committee is about to release its final report on the investigation. Further, it states: “If you are unwilling to meet with our staff by next Friday, November 21, 2008, the Committee staff will proceed to finalize its report on the investigation.”

According to press reports, the FCC has acknowledged receiving the Dingell-Stupak letter and has said that it is under review. At our deadline, there was no word from the Commission about a response.

BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.

Verizon-ALLTEL Order Spells Out Roaming, USF, E911,Other Merger Conditions

The text of the FCC’s Verizon Wireless-ALLTEL merger Memorandum Opinion and Order and Declaratory Ruling spells out the requirements for divesting certain properties, as well as the conditions for roaming, Universal Service Fund (USF) receipts, and E911 location accuracy requirements, that were imposed by the FCC as part of its approval of the merger. Verizon Wireless agreed to divest 100 markets. The FCC determined there would be no competitive harm in all but five of the remaining 118 markets at issue. The five markets the Commission identified for divestiture are: Muskegon, Michigan; Iowa 16—Lyon; Michigan 5—Manistee; Michigan 7— Newaygo; and Tennessee 8—Johnson.

Roaming: The FCC conditioned its approval of the transaction on Verizon Wireless’s commitment to honor ALLTEL’s existing agreements with other carriers to provide roaming on ALLTEL’s CDMA and GSM networks. The Commission additionally conditioned its approval on the option that Verizon Wireless has voluntarily offered to each regional, small, and/or rural carrier that has a roaming agreement with ALLTEL to keep the rates set forth in that roaming agreement in force for the full term of the agreement, notwithstanding any change of control or termination for convenience provisions that would give

Verizon Wireless the right to accelerate the termination of such agreement.

The FCC also conditioned its approval on each such regional, small, and/or rural carrier that currently has roaming agreements with both ALLTEL and Verizon Wireless having the option to select either agreement to govern all roaming traffic between it and post-merger Verizon Wireless. The FCC further conditioned its approval on Verizon Wireless’s commitment that it will not adjust upward the rates set forth in ALLTEL’s existing agreements with each regional, small and/or rural carrier for the full term of the agreement or for four years from the closing date, which ever occurs later.

The FCC also “reminded” carriers that roaming is a common carrier service subject to the protections afforded by Sections 201, 202, and 208 of the Communications Act. When a commercial mobile radio service (CMRS) carrier receives a reasonable request for roaming, pursuant to Sections 201 and 202, that carrier is required to provide roaming on reasonable and nondiscriminatory terms and conditions. If a requesting carrier believes that particular acts or practices relating to roaming are unjust and unreasonable, it may file a complaint with the Commission pursuant to Section 208.

The FCC declined to condition its approval of the transaction on any additional special requirements relating to roaming rates or arrangements, including a requirement to maintain ALLTEL’s GSM network for a specified period of time. Whether to extend the automatic roaming obligation to non-interconnected services or features, including services that have been classified as information services (such as 3G data) will be considered in other proceedings. Affected clients should participate in these proceedings.

The Consumers Union had argued that the transaction could lead to increases in text messaging prices. But the FCC concluded that the transaction will not alter competitive market conditions to harm consumers of mobile telephony/ broadband services and, therefore, will not lead to price increases for services, including text messaging.

Several commenters (including BloostonLaw on behalf of its clients) expressed concern that the transaction will result in a large increase in the merged entity’s alleged monopoly power to purchase handsets and the disparity in purchasing power between the merged entity and smaller wireless providers will allow the merged entity to demand exclusive arrangements for handsets that prevent smaller and rural wireless providers from providing those handsets for use on their networks. Commenters argued that exclusive contracts for handsets are not in the public interest because without these arrangements, manufacturers have incentives to offer a broad range of devices to consumers rather than forcing consumers to sign with the network with their desired device.

The FCC found that the commenters’ proposed conditions prohibiting exclusive handset contracts are not narrowly tailored to prevent a transaction-specific harm and are more appropriate for a rulemaking proceeding where all interested parties have an opportunity to file comments. The Rural Cellular Association (RCA) has filed a petition asking the Commission to review exclusive handset agreements on an industry-wide basis. The FCC said the harms alleged by the commenters in the proceeding are more appropriately addressed in that general proceeding. (Comments in that RM-11497 proceeding are due December 2, and replies are due December 22.)

Universal Service: The Federal-State Joint Board on Universal Service and the Commission have each recognized and addressed the need to control the explosive growth in high-cost universal service support disbursements to competitive eligible telecommunications carriers (ETCs). Based on the recommendations of the Joint Board, on May 1, 2008, the Commission adopted an interim, emergency cap on the amount of high-cost support that competitive ETCs may receive. Specifically, as of August 1, 2008, total annual high-cost competitive ETC support for each state is capped at the level of support that competitive ETCs in that state were eligible to receive during March 2008 on an annualized basis. The Commission also adopted two limited exceptions from the specific application of the interim cap. First, a competitive ETC will not be subject to the interim cap to the extent it files cost data demonstrating that its costs meet the support threshold in the same manner as the incumbent local exchange carrier. Second, the Commission adopted a limited exception to competitive ETCs serving tribal lands or Alaska Native regions. The interim cap will remain in place only until the Commission adopts comprehensive high-cost universal service reform, which is currently being considered in a pending rulemaking.

BloostonLaw and certain other commenters argued that the Commission should require Verizon Wireless, as a condition of the Commission’s consent to the applications, to demonstrate costs of providing universal service on a state-by-state basis to receive high-cost support, or to forgo it entirely. They argued that such a condition is appropriate in light of the fact that the largest portion of competitive ETC high-cost universal service support is received by ALLTEL, and also by Verizon’s estimate of $10 billion in savings from the current transaction. They further argued that Verizon Wireless, as the largest wireless provider with almost $100 billion in annual revenues, is not in need of federal subsidies to serve low-density, high-cost markets.

Verizon and Alltel disagreed, stating that such conditions were not merger-specific but industry-wide and thus irrelevant to the Commission’s review of the proposed transaction. They pointed out that, to address the rapid growth of high-cost universal service disbursements to competitive ETCs, the Commission had already imposed an interim cap on all competitive ETC high-cost funding and was currently considering industry-wide reform of the assessment and distribution of high-cost ETC support. They also claimed that the state-by-state cost demonstration requirement that some commenters proposed would establish an entirely new ETC designation process and reimbursement system, which, however, was the authority of the state, and should not, in any event, target only one entity.

BloostonLaw and others responded that the suggested conditions were appropriate, considering the fact that the Commission previously imposed a cap on ALLTEL’s high-cost support in a merger proceeding, despite the pendency of a rulemaking addressing the same issue. They also stated that the imposition of a cost demonstration requirement was not an entirely new ETC designation process outside the purview of the Commission, since the same requirement was currently being considered by the Commission in an ongoing rulemaking proceeding on comprehensive high-cost universal service reform.

Despite its objections to the imposition of conditions regarding high-cost competitive ETC support, the FCC said, Verizon Wireless has committed “to accept a phase down of competitive [ETC] high cost support, for any properties which Verizon Wireless retains, over a five year period following closing of the transaction.” Specifically, the FCC said, Verizon Wireless commits to a five year transition during which Verizon Wireless’s competitive ETC high cost support would be phased out in equal increments, as follows:

  • Support would be reduced 20 percent beginning 30 days following the closing of the transaction, or no later than December 31, 2008, whichever is earlier. If the transaction does not close prior to December 31, 2008, support would be reduced 20 percent beginning the day after consummation.
  • Support would be reduced in equal 20 percent increments annually thereafter, such that all competitive ETC high cost support would be phased out five years after the closing of the transaction.

With regard to this phase down of competitive ETC high cost support, the FCC said, Verizon Wireless states its understanding that the reduction in payments to Verizon Wireless will not result in an increase in high cost payments to other competitive ETCs and that, if the Commission adopts a different transition mechanism or a successor mechanism to the currently capped equal support rule in a rulemaking of general applicability, then that rule of general applicability would apply instead.

The proposed transaction constitutes a merger of the largest wireless company in the United States, based on revenues, as well as the number of retail customers, with another wireless company that is the largest recipient of the high-cost competitive ETC support. The FCC said such unique facts and large scope of this transaction compels it to condition its approval of the proposed transaction on Verizon Wireless’s commitment to phase down its competitive ETC high cost support over five years. In light of Verizon Wireless’s voluntary commitment, the FCC declined to impose a condition that, prior to receipt of such funding, Verizon Wireless demonstrate costs of providing universal service. The FCC found that Verizon Wireless’s voluntary commitment to phase down competitive ETC high cost support over five years is sufficient to relieve commenters’ concerns. The FCC also noted that the Commission is currently considering this issue, along with others, in a rulemaking on comprehensive high-cost universal service reform.

E911 Location Accuracy: On November 3, 2008, Verizon Wireless filed a letter committing to meet the improved wireless E911 location accuracy measures that it proposed jointly with the National Emergency Number Association (NENA) and the Association of Public-Safety Communications Officials (APCO). According to the FCC, Verizon Wireless commits that:

  • Two years after closing of the transaction, on a county-by-county basis, 67 percent of Phase II calls must be accurate to within 50 meters in all counties; 80 percent of Phase II calls must be accurate to within 150 meters in all counties, provided, however, that a carrier may exclude up to 15 percent of counties from the 150 meter requirement based upon heavy forestation that limits handset-based technology accuracy in those counties.
  • Eight years after closing of the transaction, on a county-by-county basis, 67 percent for Phase II calls must be accurate to within 50 meters in all counties; 90 percent of Phase II calls must be accurate to within 150 meters in all counties, provided, however, that a carrier may exclude up to 15 percent of counties from the 150 meter requirement based upon heavy forestation that limits handset-based technology accuracy in those counties.

In light of the important public safety benefits to be derived from improved E911 location accuracy requirements and Verizon Wireless’s voluntary commitments in this proceeding, the FCC said it conditioned its approval of this transaction on Verizon Wireless’s compliance with the E911 location accuracy proposal set forth in the Verizon Wireless November 3, 2008, Ex Parte Letter.

BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.

FCC Releases Text of Order On TV “White Spaces”

The FCC has released the text of its Second Report and Order, allowing unlicensed radio transmitters to operate in the broadcast television spectrum at locations where that spectrum is not being used by licensed services (TV “white spaces”). According to the Commission, this action will make a significant amount of spectrum available for new and innovative products and services, including broadband data and other services for businesses and consumers. In general, the rules the FCC adopted provide for the following capabilities and safeguards:

  • Provision for both fixed and personal/portable devices to operate in the TV white spaces on an unlicensed basis.
  • All devices, except personal/portable devices operating in client mode, must include a geolocation capability and provisions to access over the Internet a database of protected radio services and the locations and channels that may be used by the unlicensed devices at each location. The unlicensed devices must first access the database to obtain a list of the permitted channels before operating.
  • The database will be established and administered by a third party, or parties, to be selected through a Public Notice process to solicit interested parties.
  • Fixed devices may operate on any channel between 2 and 51, except channels 3, 4 and 37, and subject to a number of other conditions such as a restriction against co-channel operation or operation adjacent TV channels pending consideration of further information that may be submitted into the record in this proceeding. Fixed devices may operate at up to 4 Watts EIRP (effective isotropic radiated power).
  • Personal portable devices may operate on any unoccupied channel between 21 and 51, except channel 37. Personal portable devices may operate at up to 100 milliwatts of power, except that operation on adjacent channels will be limited to 40 milliwatts.
  • Fixed and personal/portable devices must also have a capability to sense TV broadcasting and wireless microphone signals as a further means to minimize potential interference. However, for
  • TV broadcasting the database will be the controlling mechanism.
  • Wireless microphones will be protected in a variety of ways. The locations where wireless microphones are used, such as entertainment venues and for sporting events, can be registered in the database and will be protected as for other services. In addition, channels from 2 -20 will be restricted to fixed devices, and the FCC anticipates that many of these channels will remain available for wireless microphones that operate on an itinerant basis. In addition, in 13 major markets where certain channels between 14 and 20 are used for land mobile operations, the FCC will leave 2 channels between 21 and 51 free of new unlicensed devices and therefore available for wireless microphones. Finally, the FCC has required that devices also include the ability to listen to the airwaves to sense wireless microphones as an additional measure of protection for these devices.
  • Devices must adhere to certain rules to further mitigate the potential interference and to help remedy potential interference should it occur. For example, all fixed devices must register their locations in the database. In addition, fixed devices must transmit identifying information to make it easier to identify them if they are found to interfere. Furthermore, fixed and personal/portable devices operating independently must provide identifying information to the TV bands database. All devices must include adaptable power control so that they use the minimum power necessary to accomplish communications.
  • All white space devices are subject to equipment certification by the FCC Laboratory. The Laboratory will request samples of the devices for testing to ensure that they meet all the pertinent requirements.
  • The FCC will permit applications for certification of devices that do not include the geolocation and database access capabilities, and instead rely on spectrum sensing to avoid causing harmful interference, subject to a much more rigorous set of tests by our Laboratory in a process that will be open to the public. These tests will include both laboratory and field tests to fully ensure that such devices meet a “Proof of Performance” standard that they will not cause harmful interference. Under this procedure the Commission will issue a Public Notice seeking comment on the application, as well as test procedures and methodologies. The Commission will also issue a Public Notice seeking comment on its recommendations. The decision to grant such an application will then be made at the Commission level.
  • The Commission said it will act promptly to remove any equipment found to be causing harmful interference from the market and will require the responsible parties to take appropriate actions to remedy any interference that may occur.

BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino.

LAW & REGULATION

D.C. CIRCUIT FAULTS FCC FOR FAILING TO ENFORCE FILING DEADLINE IN PAYPHONE CASE: The U.S. Court of Appeals for the District of Columbia Circuit has granted in part and denied in part two petitions for review of FCC payphone orders filed by NetworkIP, LLC and Network Enhanced Telecom, LLP (NET). The case, NET v. FCC, stems from a 2002 informal complaint filed by APCC Services Inc., a billing clearinghouse for pay-phone service providers (PSPs), against NET, followed by a formal complaint in 2003. There were two proceedings, one for liability, and the other for damages. Ultimately, the FCC ordered NET to pay $2,789,505.84, plus interest at 11.25%. NET petitioned the court for review of both the Liability and Damages Orders, and the court consolidated the review.

According to the D.C. Circuit, in the fall of 2002, APCC filed an informal complaint with the FCC against NET. On the absolutely last day it could be timely, May 19, 2003, APCC unsuccessfully attempted to file a formal complaint. The filing was deficient in two respects: APCC submitted a single check (rather than a check for each of the two defendants in the formal complaint), and the filing fee proffered for each defendant was $5.00 short. APCC explained to the FCC’s Enforcement Bureau “it submitted the wrong filing fee (and missed the six-month deadline under rule 1.718) because its counsel consulted only the hard-copy version of the Code of Federal Regulations, dated October 1, 2002, which contained a filing fee amount—$165 per defendant—that had been superseded by the time APCC filed its formal complaint in May 2003.”

About two weeks later, on June 3, 2003, APCC finally filed its formal complaint. The Enforcement Bureau accepted it, pursuant to the “good cause” exception to its rules, notwithstanding “the errors by APCC’s counsel [were] difficult to excuse, given that they were easily avoidable, and APCC’s law firm is highly experienced, resourceful, and knowledgeable in communications law.” If the FCC had enforced the deadline, much of the Damages Order would be invalid, the court said.

In affirming the Enforcement Bureau, the Commission considered it inappropriate to permit “a $5.00 fee error by APCC’s counsel—as negligent as it may have been—” to stand in the way of fair compensation for PSPs, especially when the “formal complaint was otherwise submitted and served on time and in good faith, with advance notice to [NET].” Thus, “under these specific circumstances, strict enforcement of [the] six-month relation-back deadline would unduly conflict with the public interest in ensuring the payment of compensation necessary to ‘promote the widespread deployment of payphone services to the benefit of the general public . . . .’”

NET argued that under the FCC’s own standard, deadlines can only be waived under “unusual or compelling circumstances” involving “a calamity of a widespread nature that even the best planning could not have avoided, such as an earthquake or a city-wide power outage which brings transportation to a halt.”

While the court did not disagree that deference should be granted to an expert agency, it noted that “even deference has limits.” In this case, the court said: “The criteria used to make waiver determinations are essential. If they are opaque, the danger of arbitrariness (or worse) is increased. Complainants the agency ‘likes’ can be excused, while ‘difficult’ defendants can find themselves drawing the short straw. If discretion is not restrained by a test more stringent than ‘whatever is consistent with the public interest (by the way, as best determined by the agency),’ then how to effectively ensure power is not abused? The ‘special circumstances’ requirement is that additional restraint. Otherwise, we are left with ‘nothing more than a “we-know-it-when-we-see-it” standard,’ and ‘future [parties]—and this court—have no ability to evaluate the applicability and reasonableness of the Commission’s waiver policy.’”

(Although the 2005 landmark Supreme Court case, National Cable & Telecommunications Association v. Brand X Internet Services, which granted extraordinary deference to the FCC as the expert agency, is not cited in the NET decision, it is interesting to note that this current D.C. Circuit ruling appears to go against the spirit of Brand X. In Brand X, the high court ruled that the FCC acted properly in declaring that cable modem offerings were “information services” not subject to Communications Act Title II regulation. But it was the statement of Justice Stephen Breyer during the March 2005 oral argument that best summed up the majority’s argument: “There may be a thousand competitors. There may be wireless. People may be broadcasting it through their teeth. I don’t know … Let’s let the FCC decide.” But now in the NET case, Judge Janice Rogers Brown, with utmost brevity, states: “But even deference has its limits.”)

BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.

WHEELER, HUNDT JOIN OBAMA-BIDEN TRANSITION TEAM: Thomas E. Wheeler, a managing director of wireless investment firm Core Capital and former head of CTIA and the National Cable and Telecommunications Association, respectively, has been named to the Obama-Biden transition team to lead efforts in the science, technology, space and arts agencies, which may include the FCC. Wheeler was a large fundraiser for President-elect Barack Obama during the Democratic primaries. Also joining the transition team is former FCC Chairman Reed Hundt, who oversaw the first spectrum auctions during the Clinton administration. Hundt will be working on the transition team's focus on international trade and economic agencies. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.

DEADLINES

DECEMBER 30: FCC FORM 507, UNIVERSAL SERVICE QUARTERLY LINE COUNT UPDATE. Line count updates are required to recalculate a carrier's per line universal service support, and is filed with the Universal Service Administrative Company (USAC). This information must be submitted on July 31 each year by all rate-of-return incumbent carriers, and on a quarterly basis if a competitive eligible telecommunications carrier (CETC) has initiated service in the rate-of-return incumbent carrier’s service area and reported line count data to USAC in the rate-of-return incumbent carrier’s service area, in order for the incumbent carrier to be eligible to receive Interstate Common Line Support (ICLS). This quarterly filing is due December 30 (for lines served as of June 30, 2008; and March 31, 2009, for lines served as of September 30, 2008)), and July 31, 2009, for lines served as of December 31, 2008. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.

DECEMBER 31: FCC FORM 525, COMPETITIVE CARRIER LINE COUNT QUARTERLY REPORT. Competitive eligible telecommunications carriers (CETCs) are eligible to receive high cost support if they serve lines in an incumbent carrier’s service area, and that incumbent carrier receives high cost support. CETCs are eligible to receive the same per-line support amount received by the incumbent carrier in whose study area the CETC serves lines. Unlike the incumbent carriers, CETCs will use FCC Form 525 to submit their line count data to the Universal Service Administrative Company (USAC). This quarterly report must be filed by the last business day of March (for lines served as of September 30 of the previous year); the last business day of July (for lines served as of December 31 of the previous year); the last business day of September (for lines served as of March 31 of the current year); and the last business day of December (for lines served as of June 30 of the current year). CETCs must file the number of working loops served in the service area of an incumbent carrier, disaggregated by the incumbent carrier’s cost zones, if applicable, for High Cost Loop (HCL), Local Switching Support (LSS), Long Term Support (LTS), and Interstate Common Line Support (ICLS). ICLS will also require the loops to be reported by customer class as further described below. For Interstate Access Support (IAS), CETCs must file the number of working loops served in the service area of an incumbent carrier by Unbundled Network Element (UNE) zone and customer class. Working loops provided by CETCs in service areas of non-rural incumbents receiving High Cost Model (HCM) support must be filed by wire center or other methodology as determined by the state regulatory authority. CETCs may choose to complete FCC Form 525 and submit it to USAC, or designate an agent to file the form on its behalf. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.

JANUARY 1: CARRIERS MUST NOTIFY CUSTOMERS OF “DO NOT CALL” OPTIONS. The FCC requires each wireline and wireless common carrier (including resellers) offering local exchange service to inform subscribers of the opportunity to provide notification to the Federal Trade Commission (FTC) that the subscriber objects to receiving telephone solicitations. The carrier must inform subscribers of (1) their right to give or revoke a notification of their objection to receiving telephone solicitations pursuant to the national “Do Not Call” database; and (2) the methods by which such rights may be exercised. Beginning on January 1, 2004, and annually thereafter, such common carriers shall provide an annual notice, via an insert in the customer’s bill, to inform their subscribers of the opportunity to register or revoke registrations on the national Do Not Call database. BloostonLaw will provide clients with the wording for an appropriate notice upon request. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.

JANUARY 12: DTV EDUCATION REPORT. New 700 MHz licensees from Auction No. 73 are required to file a report with the FCC concerning their efforts to educate consumers about the upcoming transition to digital television (DTV). Last summer, we explained that the FCC’s Part 27 rules require 700 MHz licensees that won licenses in Auction No. 73 to file quarterly reports on their DTV consumer outreach efforts through the Spring of 2009. However, in an apparent contradiction, the same rules do not impose any substantive consumer education requirements on 700 MHz license holders. This situation has not changed. The reporting rule simply states that “the licensee holding such authorization must file a report with the Commission indicating whether, in the previous quarter, it has taken any outreach efforts to educate consumers about the transition from analog broadcast television service to digital broadcast television service (DTV) and, if so, what specific efforts were undertaken.” Many licensees may not have initiated 700 MHz service as of yet. However, to the extent they are also an Eligible Telecommunications Carrier (ETC) and recipient of federal USF funds, separate FCC rules found in 47 C.F.R. Part 54 (Universal Service) require ETCs to send monthly DTV transition notices to all Lifeline/Link-Up customers (e.g., as part of their monthly bill), and to include information about the DTV transition as part of any Lifeline or Link-Up publicity campaigns until March 31, 2009. BloostonLaw contacts: Hal Mordkofsky and Cary Mitchell.

JANUARY 15: HAC REPORTING DEADLINE. The next Hearing Aid Compatible (HAC) reporting deadline for digital commercial mobile radio service (CMRS) providers (now including carriers that provide service using AWS-1 spectrum and resellers of cellular, broadband PCS and/or AWS services) falls on January 15, 2009. The information provided in reports must be current through the end of the calendar month preceding the filing date (i.e., through December 31), and include historical data for the period since the entity filed its last report. For purposes of this report, service providers must include historical data relating to compliant and noncompliant handset models for the six-month period prior to reporting (i.e., beginning in July of 2008). We have prepared a HAC reporting template to assist our clients in keeping track of their HAC handset offerings, and other regulatory compliance efforts. ALL SERVICE PROVIDERS SUBJECT TO THE COMMISSION’S HAC RULES – INCLUDING COMPANIES THAT HAVE HERETOFORE QUALIFIED FOR THE DE MINIMIS EXCEPTION – MUST PARTICIPATE IN RECORDKEEPING AND ANNUAL HAC REPORTING. To the extent that your company is a provider of broadband PCS, cellular and/or interconnected SMR services, if you are a CMRS reseller and/or if you have plans to provide CMRS using newly licensed (or partitioned) AWS or 700 MHz spectrum, you and your company will need to be familiar with the Commission’s revised rules. With the recent Federal Register publication of the revised HAC rules, the most immediate compliance deadlines for Tier III wireless carriers become effective September 7, 2008. Under the new rules, service providers other than Tier I carriers must offer (for every air-interface, e.g., CDMA, GSM , TDMA) the lesser of 50% or eight (8) handsets that are rated M3-or better, and the lesser of 33% or three (3) handsets that are rated T3- or better. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Cary Mitchell, and Bob Jackson.

JANUARY 19: FCC FORM 497, LOW INCOME QUARTERLY REPORT. This form, the Lifeline and Link-Up Worksheet, must be submitted to the Universal Service Administrative Company (USAC) by all eligible telecommunications carriers (ETCs) that request reimbursement for participating in the low-income program. The form must be submitted by the third Monday after the end of each quarter. It is available at: www.universalservice.org. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.

JANUARY 30: REPORT OF EXTENSION OF CREDIT TO FEDERAL CANDIDATES. This report (in letter format) must be filed by January 30 and July 31 of each year, but ONLY if the carrier extended unsecured credit to a candidate for a Federal elected office during the reporting period. BloostonLaw contacts: Hal Mordkofsky and John Prendergast.

FEBRUARY 2: FCC FORM 502, NUMBER UTILIZATION AND FORECAST REPORT: Any wireless or wire-line carrier (including paging companies) that have received number blocks--including 100, 1,000, or 10,000 number blocks--from the North American Numbering Plan Administrator (NANPA), a Pooling Administrator, or from another carrier, must file Form 502 by February 2. (Normally, this filing is due February 1, but in 2009, February 1 falls on a Sunday, and FCC rules require the filing be submitted the next business day.) Carriers porting numbers for the purpose of transferring an established customer’s service to another service provider must also report, but the carrier receiving numbers through porting does not. Resold services should also be treated like ported numbers, meaning the carrier transferring the resold service to another carrier is required to report those numbers but the carrier receiving such numbers should not report them. Reporting carriers are required to include their FCC Registration Number (FRN). Reporting carriers file utilization and forecast reports semiannually on or before February 1 for the preceding six-month reporting period ending December 31, and on or before August 1 for the preceding six-month reporting period ending June 30. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.

FEBRUARY 2: FCC FORM 499-Q, TELECOMMUNICATIONS REPORTING WORKSHEET. All telecommunications common carriers that expect to contribute more than $10,000 to federal Universal Service Fund (USF) support mechanisms must file this quarterly form. (Normally, this filing is due February 1, but in 2009, February 1 falls on a Sunday, and FCC rules require the filing be submitted the next business day.) The FCC has modified this form in light of its decision to establish interim measures for USF contribution assessments. The form contains revenue information from the prior quarter plus projections for the next quarter. Form 499-Q relates only to USF contributions. It does not relate to the cost recovery mechanisms for the Telecommunications Relay Service (TRS) Fund, the North American Numbering Plan Administration (NANPA), and the shared costs of local number portability (LNP), which are covered in the annual form (Form 499-A) that was due April 1. BloostonLaw contacts: Ben Dickens and Gerry Duffy.

MARCH 2: CPNI ANNUAL CERTIFICATION. Carriers should modify (as necessary) and complete their “Annual Certification of CPNI Compliance” for 2008. The certification must be filed with the FCC by March 2. (Normally this filing would be due March 1, but this year March 1 falls on a Sunday; therefore, FCC rules require filing on the next business day.) For 2007, FCC Enforcement Bureau conducted a computerized audit to identify any non-filers, who may face sanctions. Note that the annual certification should include the following three required Exhibits: (a) a Statement Explaining How The Company’s Operating Procedures Ensure Compliance With The FCC’S CPNI Rules to reflect the Company’s policies and information; (b) a Statement of Actions Taken Against Data Brokers; and (c) a Summary of Customer Complaints Regarding Unauthorized Release of CPNI. A company officer with personal knowledge that the company has established operating procedures adequate to ensure compliance with the rules must execute the Certification, place a copy of the Certification and accompanying Exhibits in the Company’s CPNI Compliance Records, and forward the original to BloostonLaw for filing with the FCC by March 1 (March 2, this year). BloostonLaw is prepared to help our clients meet this requirement, which we expect will be strictly enforced, by assisting with preparation of their certification filing; reviewing the filing to make sure that the required showings are made; filing the certification with the FCC, and obtaining a proof-of-filing copy for your records. Clients interested in obtaining BloostonLaw's CPNI compliance manual should contact Gerry Duffy (202-828-5528) or Mary Sisak (202828-5554).

MARCH 2: FCC FORM 477, LOCAL COMPETITION AND BROADBAND REPORTING FORM. Three types of entities must file this form. (1) Facilities-based Providers of Broadband Connections to End User Locations: Entities that are facilities-based providers of broadband connections – which are wired “lines” or wireless “channels” that enable the end user to receive information from and/or send information to the Internet at information transfer rates exceeding 200 kbps in at least one direction – must complete and file the applicable portions of this form for each state in which the entity provides one or more such connections to end user locations. For the purposes of Form 477, an entity is a “facilities-based” provider of broadband connections to end user locations if it owns the portion of the physical facility that terminates at the end user location, if it obtains unbundled network elements (UNEs), special access lines, or other leased facilities that terminate at the end user location and provisions/equips them as broadband, or if it provisions/equips a broadband wireless channel to the end user location over licensed or unlicensed spectrum. Such entities include incumbent and competitive local exchange carriers (LECs), cable system operators, fixed wireless service providers (including “wireless ISPs”), terrestrial and satellite mobile wireless service providers, MMDS providers, electric utilities, municipalities, and other entities. (Such entities do not include equipment suppliers unless the equipment supplier uses the equipment to provision a broadband connection that it offers to the public for sale. Such entities also do not include providers of fixed wireless services (e.g., “Wi-Fi” and other wireless ethernet, or wireless local area network, applications) that only enable local distribution and sharing of a premises broadband facility.) (2) Providers of Wired or Fixed Wireless Local Telephone Services: Incumbent and competitive LECs must complete and file the applicable portions of the form for each state in which they provide local exchange service to one or more end user customers (which may include “dial-up” ISPs). (3) Providers of Mobile Telephony Services: Facilities-based providers of mobile telephony services must complete and file the applicable portions of this form for each state in which they serve one or more mobile telephony subscribers. A mobile telephony service is a real-time, two-way switched voice service that is interconnected with the public switched network using an in-network switching facility that enables the provider to reuse frequencies and accomplish seamless handoff of subscriber calls. A mobile telephony service provider is considered “facilities-based” if it serves a subscriber using spectrum for which the entity holds a license, that it manages, or for which it has obtained the right to use via lease or other arrangement with a Band Manager. On June 12, 2008, the FCC released a Report and Order (FCC 08-89) and an Order on Reconsideration (FCC 08-148) that together revise the Form 477 filing requirements. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.

FCC Meetings and Deadlines

Dec. 2 – Deadline for comments on Rural Cellular Association petition regarding exclusivity arrangements between commercial wireless carriers and handset manufacturers (RM-11497).

Dec. 2 – Deadline for comments on RTG petition seeking aggregation limit on commercial terrestrial spectrum below 2.3 GHz (RM-11498).

Dec. 15 – Deadline for reply comments on NOI regarding oversight of USF (WC Docket No. 05-195).

Dec. 15 – Deadline for reply comments on NPRM regarding collection of industry-wide data (WC Docket No. 08190).

Dec. 18 – FCC open meeting.

Dec. 22 – Deadline for reply comments on RTG petition seeking aggregation limit on commercial terrestrial spectrum below 2.3 GHz (RM-11498).

Dec. 30 – FCC Form 507, Universal Service Quarterly Line Count Update, is due.

Dec. 31 – FCC Form 525, Competitive Carrier Line Count Quarterly Report, is due.

Jan. 1 – Carriers must notify customers of “Do Not Call” options.

Jan. 12 – Auction 73 winners must file quarterly report covering DTV consumer education outreach efforts for period Oct.-Dec. 2008.

Jan. 12 – DTV Education Report is due.

Jan. 15 – HAC report is due. Note: CMRS resellers and MVNOs that offer two or fewer digital wireless handsets are exempt from the HAC handset requirements but must participate in the January 2009 HAC reporting requirements.

Jan. 19 – FCC Form 497, Low Income Quarterly Report, is due.

Jan. 30 – Report of extension of credit to Federal candidates is due.

Feb. 2 – FCC FORM 502, Number Utilization and Forecast Report , is due.

Feb. 2 – FCC FORM 499-Q, Telecommunications Reporting Worksheet, is due.

Mar. 2 – CPNI Annual Certification is due.

Mar. 2 – FCC FORM 477, Local Competition and Broadband Reporting Form, is due.

Apr. 10 – Auction 73 winners must file quarterly report covering DTV consumer education outreach efforts for period Jan.-Mar. 2009.

May 1 – FCC begins enforcement of Red Flag Rules.

This newsletter is not intended to provide legal advice. Those interested in more information should contact the firm.

Source: Blooston, Mordkofsky, Dickens, Duffy and Prendergast, LLP For additional information, contact Hal Mordkofsky at 202-828-5520 or halmor@bloostonlaw.com

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