BloostonLaw Telecom Update
Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP
[Selected portions reproduced here with the firm's permission.]
| Vol. 11, No. 9|| March 5, 2008 |
Comment Dates Set For USF Reform NPRMs
The FCC has established a comment cycle for its three Notices of Proposed Rulemaking (NPRMs) issued earlier this year to address the Federal-State Joint Board on Universal Service’s recommendations on high-cost Universal Service Fund (USF) reform (BloostonLaw Telecom Update, January 30, February 6, and February 13). Comments in this WC Docket No. 05-337 proceeding are due April 3, and replies are due May 5.
In the Joint Board NPRM, the Commission seeks comment on ways to reform the high-cost USF program. Specifically, it seeks comment on the Joint Board’s November 20, 2007, Recommended Decision. The Joint Board NPRM also incorporates the other two NPRMs:
The Identical Support Rule NPRM seeks comment on the Commission’s rules governing the amount of high-cost universal service support provided to competitive eligible telecommunications carriers (ETCs), and tentatively concludes that the FCC should eliminate the “identical support rule,” which provides competitive ETCs with the same per-line high-cost universal service support that incumbent local exchange carriers (LECs) receive.
The Reverse Auctions NPRM seeks comment on the merits of using reverse auctions (a form of competitive bidding) to determine the amount of high-cost universal service support provided to ETCs serving rural, insular, and high-cost areas. Support generally would be determined by the lowest bid to serve the auctioned area.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
DTV Consumer Education Order Imposes Reporting Requirements On 700 MHz Winners, USF Recipients
The FCC has released a DTV Consumer Education Order requiring television broadcasters, Multi-Channel Video Programming Distributors (MVPDs), telecommunications carriers, retailers, and manufacturers to promote awareness of the nation’s transition to digital television on February 17, 2009.
Included in the Order is the requirement that telecommunications companies participating in the Low Income Federal Universal Service Program provide notice of the transition in their monthly customer billing statements to their low income customers and potential customers.
Also included is the requirement that winners of the 700 MHz spectrum auction provide the Commission with regular updates on their consumer education efforts.
These requirements stem, in part, from a May 24, 2007, letter to the Commission from House Energy and Commerce Committee Chairman John Dingell (D-Mich.) and House Telecommunications & Internet Subcommittee Chairman Ed Markey (D-Mass.).
700 MHz Auction: The FCC will require winning bidders in the 700 MHz spectrum auctions (Auctions 73 and 76) to detail what, if any, DTV transition consumer education efforts they are conducting. The “Letter” from Dingell and Markey suggested that, “given the significant stake of 700 MHz auction winners in a successful transition, the Commission could require those entities to report their specific consumer outreach efforts.” The rule the FCC adopted conforms with this proposal, the Commission said. It added that no commenters expressed opposition to this proposal. Specifically, during the DTV transition the FCC said: “We will require each entity obtaining a 700 MHz license to file this report with the Commission on a quarterly basis, with the first such report due by the tenth day of the first calendar quarter following the initial grant of the license authorization that the entity holds.”
Universal Service: The FCC will require that all eligible telecommunications carriers (ETCs) that receive federal universal service funds provide DTV transition information in the monthly bills of their Lifeline/Link-Up customers. Similar to the requirements for MVPDs, the notice must be provided as a “bill stuffer” or as part of an information section on the bill itself. It must be noticeable, and state that on February 17, 2009, full-power analog broadcasting will end, and analog-only televisions may be unable to display full-power broadcast programming unless the viewer takes action. It must also note that viewers can get more information by going to www.DTV.gov, and more information about the converter box program by going to www.dtv2009.gov or calling the NTIA at 888-DTV-2009. The notice may also, at the ETC’s discretion, provide contact information for the DTV Transition Coalition. The notice should be provided in the same language or languages as the bill. If the ETC’s Lifeline/Link-Up customer does not receive paper versions of either a bill or a notice of billing, then that customer must be provided with equivalent monthly transition notices in whatever medium they receive information about their monthly bill. Finally, ETCs that receive federal universal service funds must provide this same basic information as part of any other Lifeline or Link-Up publicity campaigns. The customer bill notice requirement will run concurrently with the MVPD bill notice requirement (i.e., from 30 days after the effective date of these rules through March 2009), and the publicity requirement will run for the same period.
Commissioner Robert McDowell, in a separate statement, noted his “concerns about the First Amendment implications of these two parts of our order: first, requiring telephone companies that receive Universal Service funds to provide DTV transition information in the monthly bills of Lifeline/Link-up customers; and second, requiring winning bidders in the currently open 700 MHz spectrum auction to detail what, if any, consumer education efforts they are conducting. In both cases, the nexus between our governmental purpose and the means to achieve that purpose are quite remote. In the case of telephone companies, it is unclear whether there is a correlation between Lifeline and Link-up customers and over-the-air viewers. Our order makes no such correlation. Yet, the order requires phone companies to provide a message, on government’s behalf, that is unrelated to the services they provide. With respect to the winners of the 700 MHz auction, they will not provide service until after the digital transition ends, and when they do, the service may not be related to television. Given the infirmities in rationale for both of these requirements, I would have preferred not to adopt these mandates. Therefore, I must concur in these parts of the order.”
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
NTCA Asks D.C. Circuit For Stay Of FCC’s LNP Order
The National Telecommunications Cooperative Association (NTCA) has asked the U.S. Court of Appeals for the District of Columbia Circuit to stay the effectiveness of the FCC’s recent Order extending local number portability obligations to voice over Internet protocol (VoIP) providers and reinstating the intermodal (wireline-to-wireless) porting requirement for small carriers (BloostonLaw Telecom Update, February 27). NTCA’s request is limited to the reinstatement of the intermodal requirement, which responds to a 2005 stay of the FCC’s Intermodal Number Portability Order by the D.C. Circuit, which required the Commission to analyze the impact of its requirements on small entities under the Regulatory Flexibility Act (RFA).
As NTCA states in its Emergency Motion for Stay, its request is limited to a stay only insofar as it applies to wireline carriers that are considered “small entities” under the RFA. Without such a stay, small wireline carriers would be required to provide LNP to wireless carriers effective March 24. The stay would maintain the status quo until the FCC publishes a “lawful” final RFA (FRFA), NTCA said. It argues that the current FRFA does not comply with the Court’s instructions.
“The FCC has merely reiterated conclusions based on its assumption that the Intermodal Order imposes no new obligations on small carriers. As a result, the Order on Remand defies the Court’s finding that a new ‘location portability’ rule was promulgated in the Intermodal Order,” NTCA said.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
$5 MILLION “SLAMMING” FINE AGAINST HORIZON TELECOM
OF LAS VEGAS: The FCC has issued a Notice of Apparent
Liability for Forfeiture (NAL) in the amount of $5,084,000
against Horizon Telecom, Inc., a Las Vegas, Nevada, company that
provides long distance calling services for apparently willfully
or repeatedly failing to respond on a timely basis to 21 informal
complaints served on it by the Consumer & Governmental Affairs
Bureau (CGB). In addition, it apparently changed the preferred
carriers of 125 consumers without proper authorization, a practice
commonly known as “slamming.” Of the 21 complaints
at issue, Horizon failed to respond to 12. Moreover, Horizon’s
responses to the 9 remaining complaints were filed not only beyond
30 days of service, the time frame in which Horizon was given
to respond in all of these informal responses, but also beyond
an FCC Public Notice. The FCC concluded that Horizon apparently
willfully or repeatedly violated a Commission rule by failing
to timely provide a written response to 21 informal complaints.
It noted that each of the 125 consumers who filed complaints that
form the basis of this NAL maintain that they did not authorize
Horizon to change their preferred carriers, but that Horizon nevertheless
changed their preferred carriers to Horizon. Horizon states that
authorization was received and confirmed when a letter of agency
was signed and processed. However, the FCC found that Horizon
has failed to produce a preponderance of evidence that the complainants
authorized a carrier change. Apparently, Horizon used an inducement — two
free roundtrip airline tickets — but did not provide a means
or location for a consumer’s electronic signature, as required
by FCC rules. The FCC noted that such inducements are “in
apparent violation of our rules.” BloostonLaw contacts:
Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC PROPOSES $458,500 FINE FOR UNSOLICITED FAXES: The FCC has issued a Notice of Apparent Liability for Forfeiture (NAL) in the amount of $458,500 against SMC, LLC for apparently willfully or repeatedly violating Commission rules delivering at least 86 unsolicited advertisements to the telephone facsimile machines of at least 54 consumers. The NAL is based on evidence that the consumers received unsolicited fax advertisements from SMC after the Commission’s citation. The facsimile transmissions advertise affordable life insurance and polo shirts. Further, according to the complaints, the consumers neither had an established business relationship with SMC nor gave SMC permission to send the facsimile transmissions. The faxes at issue here therefore fall within the definition of an “unsolicited advertisement,” the FCC said. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
MARCH 31: 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 March 31 and covers lines served as of September 30, 2007. (Normally this filing is due March 30, but this year, March 30 falls on a Sunday.) Incumbent carriers filing on a quarterly basis must also file on July 31 (for lines served as of December 31, 2007); September 30 (for lines served as of March 31, 2008); and December 30 (for lines served as of June 30, 2008). BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
MARCH 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 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 current 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.
MARCH 31: FCC FORM 508, PROJECTED ANNUAL COMMON LINE REVENUE REQUIREMENT FORM: Section 54.903(a)(1) of the FCC's rules requires each rate-of-return incumbent telecommunications carrier to provide information needed to calculate the Projected Annual Common Line Revenue Requirement for each of its study areas in the upcoming funding year to the Universal Service Administrative Company (USAC). This information must be submitted on March 31 each year, in order for the carrier to be eligible to receive Interstate Common Line Support. This collection of information stems from the Commission's authority under Section 254 of the Communications Act. The data in the form will be used to calculate the amount of support, if any, that each reporting carrier is eligible to receive from the Interstate Common Line Support Mechanism. Carriers are permitted to submit a correction to their March 31 projected carrier common line revenue requirements and supporting data from April 1 until June 30 for the upcoming funding year (July 31, 2008, through June 30, 2009). Additionally, on June 30, carriers are permitted to submit an update to the projected data for the ICLS funding year ending on that date. Permitting these revisions to projected data for current and upcoming ICLS funding years will mitigate the lag between projected and actual data filings and give carriers more meaningful opportunities to revise projections to adjust ICLS where necessary. After the June 30 correction deadline each year, any corrections to projected common line revenue requirement and supporting data shall be made in the form of true-ups, using actual cost and revenue data that a carrier must report in FCC Form 509, Annual Common Line Actual Cost Data Collection Form. (This form is due December 31.) BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
MARCH 31: Last day to submit revisions to FCC Form 497, Lifeline and Link-Up Worksheet, for 2006. The Universal Service Administrative Company’s (USAC’s) administrative window for submitting revisions to Form 497 will close March 31 for all months prior to January 2007. This applies to submission of data on Form 497, including original (first-time) submissions and revisions of previously submitted data. USAC's administrative window for submitting data for the year 2005 is currently closed. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
1: FCC FORM 499-A, TELECOMMUNICATIONS REPORTING
WORKSHEET. This form must be filed by
all contributors to the Universal Service Fund
(USF) support mechanisms, the Telecommunications
Relay Service (TRS) Fund, the cost recovery mechanism
for the North American Numbering Plan Administration
(NANPA), and the shared costs of local number portability
(LNP). Contributors include every telecommunications
carrier that provides interstate, intrastate, and
international telecommunications, and certain other
entities that provide interstate telecommunications
for a fee. Even common carriers that qualify for
the de minimis exemption must file Form 499-A.
Entities whose universal service contributions
will be less than $10,000 qualify for the de minimis
exemption. De minimis entities do not have to file
the quarterly report (FCC Form 499-Q), which was
due February 1, and will again be due May 1. Form
499-Q relates to universal service contributions,
but not to the TRS, NANPA, and LNP mechanisms.
Form 499-A relates to all of these mechanisms and,
hence, applies to all providers of interstate,
intrastate, and international telecommunications
services. Form 499-A contains revenue information
for January 1 through December 31 of the prior
calendar year. And Form 499-Q contains revenue
information from the prior quarter plus projections
for the next quarter. The reporting requirements
for determining interconnected voice over Internet
protocol (VoIP) providers' contribution to the
shared costs of numbering administration and LNP
require interconnected VoIP providers to file an
annual FCC Form 499-A. Block 2-B of the Form 499-A
requires each carrier to designate an agent in
the District of Columbia upon whom all notices,
process, orders, and decisions by the FCC may be
served on behalf of that carrier in proceedings
before the Commission. Carriers receiving this
newsletter [not the Brad
Dye newsletter] may specify
our law firm as their D.C. agent for service of
process using the information in our masthead.
There is no charge for this service. BloostonLaw
contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy,
and John Prendergast.
APRIL 21: 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.
MAY 1: 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. The FCC has modified this form in light of its recent 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.
MAY 1: RATE INTEGRATION CERTIFICATION. Non-dominant inter-exchange carriers (IXCs) that provide de-tariffed domestic interstate services must certify that they are providing such services in compliance with their geographic rate averaging and rate integration obligations. An officer of the company must sign this annual certification under oath. The FCC has issued the following guidelines: (1) Any carrier that provides interstate services must charge its subscribers in rural and high-cost areas rates that do not exceed the rates that the carrier charges subscribers in urban areas; (2) to the extent that a carrier offers optional calling plans, contract tariffs, discounts, promotions, and private line services to its interstate subscribers in one state, it must use the same ratemaking methodology and rate structure when offering such services in any other state; (3) an interstate carrier may depart from geographic rate averaging when offering contract tariffs, Tariff 12 offerings, optional calling plans, temporary promotions, and private line services; and (4) carriers may offer optional calling plans on a geographically limited basis as part of a temporary promotion that does not exceed 90 days. But this limited exception does not exempt optional calling plans from geographic rate averaging requirements. Clients with questions about the FCC's de-tariffing or rate integration requirements should contact us. We have a model rate integration certification letter that may be printed on your letterhead. BloostonLaw contacts: Ben Dickens and Gerry Duffy.
MAY 31: FCC FORM 395, EMPLOYMENT REPORT. Common carriers, including wireless carriers, with 16 or more full-time employees must file their annual Common Carrier Employment Reports (FCC Form 395) by May 31. This report tracks carrier compliance with rules requiring recruitment of minority employees. Further, the FCC requires all common carriers to report any employment discrimination complaints they received during the past year. That information is also due on May 31. The FCC encourages carriers to complete the discrimination report requirement by filling out Section V of Form 395, rather than submitting a separate report. Clients who would like assistance in filing Form 395 should contact Richard Rubino.
JUNE 30: ANNUAL ICLS USE CERTIFICATION. Rate of return carriers and and CETCs must file a self-certification with the FCC and the Universal Service Administrative Company (USAC) stating that all Interstate Common Line Support (ICLS) and Long Term Support (LTS) will be used only for the provision, maintenance, and upgrading of facilities and services for which the support is intended. In other words, carriers are required to certify that their ICLS and LTS support is being used consistent with Section 254(e) of the Communications Act. Failure to file this self-certification will preclude the carrier from receiving ICLS support. We, therefore, strongly recommend that clients have BloostonLaw submit this filing and obtain an FCC proof-of-filing receipt for client records. BloostonLaw contacts: Ben Dickens and Gerry Duffy.