BloostonLaw Telecom Update
Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP
[Portions reproduced here with the firm's permission.]
Vol. 13, No. 5
February 3, 2010
FCC Postpones Open Meeting Until Feb. 18 Due To Snowstorm
The FCC has postponed its February 11 open meeting until 3 p.m.,
due to the D.C. snowstorm. It also announced that the following items will be on the meeting agenda:
An Order and Notice of Proposed Rulemaking to enable schools that receive funding from the E-Rate program to allow members of the general public to use the schools’ Internet access during non-operating hours at no additional cost to the Universal Service Fund. This order and notice do not permit or require any changes to E-Rate applications due on February 11, 2010.
Ex Parte Reform:
A Notice of Proposed Rulemaking to improve the transparency and effectiveness of the FCC’s decision-making process by reforming the
A Notice of Proposed Rulemaking to enhance the efficiency, openness, and transparency of the Commission’s proceedings by improving and modernizing certain organizational and procedural rules.
National Broadband Plan Status Report:
Commission staff will report on the status of the National Broadband Plan, providing a framework for the national purposes portion of the Plan.
Congress Affected Too:
All House Energy and Commerce Committee hearings scheduled this week have been postponed due to inclement weather. No new dates have been determined.
BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
INSIDE THIS ISSUE
Congress begins to probe proposed Comcast/NBC deal.
Info collection mandated by NET 911 Improvement Act.
“Closed” Broadcast Construction Permit Auction (No. 88) set for July 20.
California Commission seeks direct access to NORS database.
Congress Begins To Probe Proposed Comcast/NBC Deal
House Energy and Commerce Committee Chairman
Henry Waxman (D-Calif.)
opened a February 4 subcommittee hearing on the proposed Comcast/NBC Universal merger, noting that “We should ask hard questions, but we should also keep an open mind.” Mr. Waxman stated up front his basic concerns: “Will Comcast be a better long-term steward of NBC News than the current owner? Will Comcast be more committed to the development of quality, original programming? Will Comcast invest necessary resources to promote localism and diversity and support free over-the-air broadcasting? One important issue is whether Comcast, as the nation’s largest residential broadband provider — and a potential owner of NBC’s valuable content — will help protect intellectual property. The theft of content online is a serious issue for the creative community; it is unlawful and it is a serious drain on our economy. This problem deserves more attention and better efforts by broadband providers. We also need to know what Comcast will do to ensure that independent writers, directors, and producers won’t be harmed.”
Rick Boucher (D-Va.), Chairman of the Subcommittee on Communications, Technology, and the Internet, who conducted the hearing, said that scrutiny of the proposed merger boils down to three basic questions:
“First, assuming the combination is approved, what benefits will consumers see a year after the merger that they do not get today?
“Second, what, if anything, are consumers receiving today that will they not be getting a year after the merger?
“Finally, are there conditions that regulators should consider imposing on approval of the merger to ensure it serves consumers, and if so, what are they?”
In a joint statement, Brian Roberts, Chairman & CEO of Comcast, and Jeff Zucker, President & CEO of NBC Universal, said: “The new NBCU will benefit consumers and will encourage much-needed investment and innovation in the important media sector. How will it benefit consumers? First, the new venture will lead to increased investment in NBCU by putting these important content assets under the control of a company that is focused exclusively on the communication and entertainment industry. This will foster enhanced investment in both content development and delivery, enabling NBCU to become a more competitive and innovative player in the turbulent and ever changing media world. Investment and innovation will also preserve and create sustainable media and technology jobs. Second, the transaction will promote the innovation, content, and delivery that consumers want and demand. The parties have made significant commitments in the areas of local news and information programming, enhanced programming for diverse audiences, and more quality educational and other content for children and families. And finally, Comcast's commitment to sustain and invest in the NBC broadcast network will promote the quality news, sports, and local programming that have made this network great over the last 50 years.”
The same day, February 4, the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy, and Consumer Rights held a hearing on the proposed merger, with many of the same witnesses and statements. Lawmakers appeared to be more skeptical of the proposed merger than their counterparts on the House telecom subcommittee. Antitrust Subcommittee Chairman Herb Kohl (D-Wis.), for example, said: "This acquisition will create waves throughout the media and entertainment marketplace and we don't know where the ripples will end." Kohl said that Comcast’s voluntary conditions would not be enough and that they were only a starting point. He criticized the cable industry for their price increases and what he believed were existing hurdles to competitors’ access to programming. He said that many fear those things would be exacerbated by a merged Comcast and NBC. Kohl listed his four major areas of concern:
(1) Comcast's ability to deny must-have programming or make rivals pay unreasonable prices;
(2) the potential move of NBC programming to cable;
(3) the ability of independent nets to get carriage on Comcast systems; and
(4) the effect on video competition.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
Info Collection Mandated By NET 911 Improvement Act
The New and Emerging Technologies 911 Improvement Act of 2008 (NET 911 Act) became law on July 23, 2008, requiring Internet Protocol (IP) enabled voice service providers to provide 911 and enhanced 911 (E911) services, and requiring various regulatory undertakings by the FCC. Pursuant to Section 101 of the NET 911 Act, the Commission must collect information regarding any fees collected by the states or other jurisdictions in connection with 911/E911 services, specifically, information “detailing the status in each State of the collection and distribution of such fees or charges, and including findings on the amount of revenues obligated or expended by each State or political subdivision thereof for any purpose other than the purpose for which any such fees or charges are specified.” Section 101 of the NET 911 Act further requires the Commission to file “within 1 year after the date of enactment of the [NET 911 Act], and annually thereafter” a report with the Congress “detailing the status in each State of the collection and distribution of such fees or charges, and including findings on the amount of revenues obligated or expended by each State or political subdivision thereof for any purpose other than the purpose for which any such fees or charges are specified.”
On July 22, 2009, the Commission submitted to Congress its first annual “Report to Congress On State Collection and Distribution of 911 and Enhanced 911 Fees and Charges.” Pursuant to Office of Management and Budget (OMB) authorization, the FCC’s Public Safety and Homeland Security Bureau seeks the following specific information in order to prepare the next annual report and fulfill its continuing obligations under Section 101 of the NET 911 Act:
A statement as to whether or not the state or other entity as defined by Section 6(f)(1) of the NET 911 Act has established a funding mechanism designated for or imposed for the purposes of 911 or E911 support or implementation (including a citation to the legal authority for such mechanism).
The amount of the fees or charges imposed for the implementation and support of 911 and E911 services, and the total amount collected pursuant to the assessed fees or charges, for the annual period ending December 31, 2009.
A statement describing how the funds collected are made available to localities, and whether the state has established written criteria regarding the allowable uses of the collected funds, including the legal citation to such criteria.
A statement identifying any entity in the state that has the authority to approve the expenditure of funds collected for 911 or E911 purposes, and a description of any oversight procedures established to determine that collected funds have been made available or used for the purposes designated by the funding mechanism, or otherwise used to implement or support 911 or E911.
A statement whether all the funds collected for 911 or E911 purposes have been made available or used for the purposes designated by the funding mechanism, or otherwise used for the implementation or support of 911 or E911.
A statement identifying what amount of funds collected for 911 or E911 purposes were made available or used for any purposes other than the ones designated by the funding mechanism or used for purposes otherwise unrelated to 911 or E911 implementation or support, including a statement identifying the unrelated purposes for which the funds collected for 911 or E911 purposes were made available or used.
Any other comments the respondent may wish to provide regarding the applicable funding mechanism for 911 and E911.
Letters seeking the information described here will be mailed to the Office of the Governor of each state and territory, and Tribal Government of each Native American Reservation. Copies also will be sent to the Secretary of State, Public Utility Commission Chairman, and 911 Director of each state and equivalent offices in the territories and reservations.
Consistent with Section 101 of the NET 911 Act, the Commission requests that state officials report the information identified in this Public Notice with respect to fees and charges collected in connection with the implementation and support of 911 or E911 services within their state, including any political subdivision thereof, Indian tribe and/or village and regional corporation serving any region established pursuant to the Alaska Native Claims Settlement Act that otherwise lie within their state boundaries. In addition, consistent with the definition of “State” set out in 47 U.S.C. 153(40), the Commission will collect this information from states as well as the District of Columbia, and the inhabited U.S. Territories and Possessions.
Information submitted pursuant to this information collection should be submitted in the NET 911 electronic drop box located at
https://esupport.fcc.gov/actonline, and should be submitted no later than March 23, 2010. Filers should reference OMB Control Number 3060-1122.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
“CLOSED” BROADCAST CONSTRUCTION PERMIT AUCTION (No. 88) SET FOR JULY 20:
The FCC has announced a “closed” auction of certain broadcast FM, AM, and FM Translator construction permits, and seeks comment on the procedures to be used for this auction, designated as Auction No. 88. The Commission also establishes a deadline for the submission of an FCC Registration Number (FRN) by each applicant to permit access to the Commission’s electronic short-form application filing and auction bidding systems, and provides for dismissal of those application(s) where the applicant fails to provide its FRN by March 12, 2010. This auction (Auction 88) is scheduled to commence on July 20, 2010. As noted, Auction 88 will be a “closed” auction. Auction 88 will resolve pending closed groups of mutually exclusive applications for full-power FM and FM translator construction permits, that have been the subject of various Commission and judicial decisions. Included in these groups are 12 applications that were recently amended to specify operation as commercial broadcast stations. Auction 88 will also resolve mutual exclusivity between applications for new AM stations on 640 kHz and 1230 kHz in the Terre Haute, Indiana, area. The 13 FM application groups and the two FM Translator application groups (all of which are former Mixed Groups), and three closed AM applications.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell.
CALIFORNIA COMMISSION SEEKS DIRECT ACCESS TO NORS DATABASE:
The FCC has asked for comment on the California Public Utilities Commission’s (CPUC’s) that the Commission grant State public utilities commissions direct access to the Network Outage Reporting System (NORS) database. The CPUC also informally requests, pursuant to Section 1.41 of the Commission's rules, that the Commission act to allow the CPUC password-protected access to the NORS database that is limited to California-specific disruption and outage data. NORS is the Web-based filing system through which certain communications providers submit reports to the Commission of disruptions to communications as required by part 4 of the Commission's rules. Reports of service disruptions filed in NORS are presumed to be confidential. Currently, the Commission shares NORS data only with the Department of Homeland Security (DHS). CPUC states that the Commission found that mandatory reporting of network outages was “the only reliable way to collect this important information for use by this Commission and, where appropriate, for other government entities.'' The CPUC asserts that, during the part 4 rulemaking proceeding, no State public utility commission requested access to the part 4 service disruption data and the Commission did not address whether it should or would grant State public utilities commissions the same direct access to the NORS reports that it provided to DHS. CPUC states that because the public health and safety, as well as California's economy, depend heavily on reliable and well functioning wireline and wireless voice and data communications networks, it is critical that the CPUC have access to the same level of service outage detail found in NORS reports in order to effectively analyze the data. CPUC adds that State commissioners, like the FCC, are responsible for overseeing the reliability and security of their State's respective communications infrastructures and, in times of crisis, local and State authorities are often the first responders. CPUC states that, because of this, California has adopted “the FCC's NORS requirements” and implemented safeguards to ensure the confidentiality of the information received. CPUC asserts that its goal is to obtain the data necessary to perform its “traditional role of protecting public health and safety through monitoring of communications network functionality'' without requiring duplicative reporting by telecommunications providers. Acknowledging national security concerns, it seeks to allow states access to the NORS database if they can show that appropriate protections are in place that would ensure that the confidentiality of the data is maintained. Comments in this ET Docket No. 04-35 proceeding are due March 4, and replies are due March 19.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.