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. 16|| April 21, 2010 |
House Passes Telecom Measures
The U.S. House of Representatives last week passed the following telecom measures:
1. The Radio Spectrum Inventory Act (H.R. 3125) which would require an inventory of radio spectrum bands managed by the National Telecommunications and Information Administration (NTIA) and the FCC.
Energy and Commerce Committee Chairman Henry Waxman (D-Calif.) said: “This timely, bipartisan legislation creates a process for the full inventory, mapping, and accounting of current spectrum use by federal and non-federal users. This measure will inject transparency into the way our government and the private sector utilizes this critical public resource. With the benefit of this inventory, we can make informed, rational, and deliberate decisions about how our spectrum is used in future decades to benefit the American people, American businesses, and American innovation.”
2. The Taxpayer Assistance Act (H.R. 4994). The Act includes the IRS listed property bill (H.R. 690), which would mean individuals who have a business-provided mobile device are no longer required to record: (1) the amount of such expense or other item, (2) the time and place of the use of the property, (3) the business purpose of the expense, and (4) the business relationship to the taxpayer of the persons using the property. CTIA lauds the bill because it belies that asking employees to log usage is a cost that outweighs benefits.
3. H.R. 1258, the Truth in Caller ID Act of 2010. The legislation would amend the Communications Act of 1934 to prohibit manipulation, or "spoofing," of caller identification information.
BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
INSIDE THIS ISSUE
- FCC launches USF reform with broadband NOI, NPRM.
- FCC clarifies non-rural USF support definitions in its response to court remand.
- NTIA extends Round 2 BTOP comment date until May 10.
- FCC takes steps to promote nationwide mobile connectivity.
- FCC opens inquiry into survivability of broadband networks.
FCC Launches USF Reform With Broadband NOI, NPRM
The FCC, at today’s open meeting, took its first step toward a transformation of the Universal Service Fund (USF) from supporting networks providing plain old telephone service (POTS) into what it called “an effective and efficient tool” for making affordable, high-quality broadband communications service available to all Americans.
The National Broadband Plan that the Commission sent to Congress last month identified the need for comprehensive universal service reform that does not unnecessarily burden consumers. Today’s Notice of Inquiry (NOI) and Notice of Proposed Rulemaking (NPRM) begin the work of implementing the Plan’s recommendations, which include cutting inefficiencies in existing support of voice services and creating a Connect America Fund (CAF) that directly supports broadband without increasing the size of the Universal Service Fund over the current baseline projection.
The NOI asks for public comment on the use of an economic model to precisely target support for areas where there is no private-sector business case for carriers to provide broadband and voice services. The economic model developed in the Plan estimates the gap between the cost of deploying broadband services to Americans living in unserved areas and the potential additional revenue generated from the broadband investment. The NOI seeks comment on how that model could be adapted to determine efficient levels of universal service support to provide all Americans with broadband access.
The NOI also seeks comment on how to quickly provide consumers in unserved areas with broadband access while the Commission is considering final rules to implement fully the new CAF funding mechanism.
The NPRM seeks comments on a number of proposals to cut legacy universal service spending in high-cost areas and to shift support to broadband communications. These proposals include capping the overall size of the high-cost program at 2010 levels; re-examining the current regulatory framework for smaller carriers in light of competition and growth in unregulated revenues; and phasing out support for multiple competitors in areas where the market cannot support even one provider.
At our deadline, the text of the WC Docket No. 10-90 items had not been released.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC Clarifies Non-Rural USF Support Definitions In Its Response To Court Remand
In 2005, the 10th U.S. Circuit Court of Appeals in Denver remanded the FCC’s rules regarding high-cost universal service support to non-rural carriers. Although a number of parties have asked the Commission to use this proceeding to consider comprehensive universal service reform, the FCC intends to consider such reform in separate proceedings. As a result, the scope of the current Order on Remand and Memorandum Opinion and Order responding to the 10th Circuit is narrow.
The 10th Circuit directed the Commission to address three issues. First, the court held that, in order to demonstrate that the Commission has met its statutory obligation to provide “sufficient” universal service support, the Commission “must articulate a definition of ‘sufficient’ that appropriately considers the range of principles” that Congress established in section 254(b). Second, to ensure that the existing support mechanism produces “reasonably comparable” rural and urban rates (as the Communications Act requires), the Commission “must define the term ‘reasonably comparable’ in a manner that comports with its concurrent duties to preserve and advance universal service.” Third, the Commission must “craft a support mechanism taking into account all the factors that Congress identified in drafting the Act and its statutory obligation to preserve and advance universal service.”
This Order on Remand responds to the court’s directive. First, the FCC defines “sufficient” under section 254(e) of the Communications Act as an affordable and sustainable amount of support that is adequate, but no greater than necessary, to achieve the goals of the universal service program. The FCC concludes that the current non-rural high-cost support mechanism, in conjunction with the Commission’s other universal service programs, provides sufficient support to achieve the universal service principles set forth in section 254(b).
Second, the FCC finds that rural rates are “reasonably comparable” to urban rates if they fall within a reasonable range of the national average urban rate. The Commission concludes that the current non-rural support mechanism produces rates that preserve and advance universal service.
Third, the Commission concludes, on the basis of undisputed empirical evidence in the record, that the current non-rural high-cost support mechanism comports with the requirements of section 254.
The FCC further finds that it would not serve the public interest to undertake broad reform of the non-rural high-cost support mechanism in this proceeding. The proposals for reform would substantially increase the size of the universal service fund, and, consequently, the contribution burden shouldered by consumers. Because the current non-rural support mechanism satisfies section 254 of the Act, and because the Commission will soon consider the National Broadband Plan’s recommendation to phase out the existing high-cost universal service support program, including the current non-rural high-cost universal service support mechanism, as part of comprehensive universal service reform, the FCC declines to make changes to the non-rural high-cost support mechanism in this proceeding.
In a separate Memorandum Opinion and Order, the FCC granted, with modifications, the joint petition filed by the Wyoming Public Service Commission and the Wyoming Office of Consumer Advocate for supplemental high-cost universal service support for rural residential customers of Qwest, Wyoming’s non-rural incumbent local exchange carrier. Consistent with Commission requirements for requests for additional support under the current non-rural mechanism, the FCC held that the Wyoming petitioners had established that Wyoming’s rural rates are not reasonably comparable to urban rates nationwide and that Wyoming has taken all practicable steps to achieve reasonable comparability through state action and existing federal support. Thus, the FCC found that the Wyoming petitioners have demonstrated that supplemental high-cost support is required under the current non-rural high-cost support mechanism to achieve reasonably comparable rates.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
NTIA Extends Round 2 BTOP Comment Date Until May 10
The National Telecommunications and Information Administration (NTIA) has announced that broadband service providers wishing voluntarily to provide information on the services they provide in the proposed funded service areas of any of the submitted Comprehensive Community Infrastructure (CCI) projects for the Broadband Technology Opportunities Program (BTOP) will have until 5 p.m. EDT on May 10, 2010. Thus, the window is now open on challenges to BTOP Round 2 applications, and the clock is ticking. This does not apply to Rural Utilities Service (RUS) applications, which will be posted in a separate notice.
Such BTOP information should include the broadband services they currently offer in their respective service territories by Census block group or tract. This comment period adds 10 days to the 15-day period originally provided in the BTOP Notice of Funds Availability for the second funding round (Second NOFA). Clients that would like our assistance in evaluating Round 2 proposals and preparing responses can contact Gerry Duffy, Mary Sisak and John Prendergast.
FCC TAKES STEPS TO PROMOTE NATIONWIDE MOBILE CONNECTIVITY: The FCC, at today’s open meeting, adopted an Order on Reconsideration that enhances mobile voice service through roaming agreements that provide consumers with access to other carriers’ networks. Also in a Second Further Notice of Proposed Rulemaking, the Commission seeks input on whether to extend roaming obligations to data services, such as mobile broadband and Internet access services. The Order on Reconsideration expands the availability of mobile voice services by eliminating a home roaming exclusion that the Commission found in many circumstances discouraged, rather than encouraged, facilities-based competition. By eliminating the exclusion, the Order encourages carriers of all sizes to reach commercially reasonable voice roaming agreements, and promotes competition, fosters innovation and empowers consumers, while creating a fair process for the Commission to handle disputes that may arise in an expedited and equitable manner. The Order on Reconsideration also affirms that carriers must provide push-to-talk roaming upon reasonable request. The Commission will address any disputes on a case-by-case basis, taking into consideration the totality of the circumstances presented to determine whether requiring a roaming agreement would best further the public interest goals. In the Second Further Notice of Proposed Rulemaking, the Commission opens a new phase in its examination of data roaming, seeking comment on whether to extend roaming obligations to data services such as mobile broadband and Internet access services. A more detailed and updated record will assist the Commission in developing policies for broadband data roaming that can encourage carriers to build out new networks and better ensure that consumers have access to mobile data networks anywhere in the United States. The texts of these WT Docket No. 05-265 items were not available at our deadline. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell.
FCC OPENS INQUIRY INTO SURVIVABILITY OF BROADBAND NETWORKS: At today’s open meeting, the FCC launched an inquiry on the ability of existing broadband networks to withstand significant damage or severe overloads as a result of natural disasters, terrorist attacks, pandemics or other major public emergencies, as recommended in the National Broadband Plan. Although core broadband networks are generally presumed to be quite resilient, there may be weaknesses closer to the network edge. Accordingly, today’s Notice of Inquiry (NOI) seeks comment, analysis and information on the present state of the resiliency and redundancy of broadband networks to withstand physical damage and severe network overload. This is a vitally important first step in ensuring that the FCC can take all necessary actions to ensure ongoing broadband communications in times of disaster or crisis. The NOI includes the following questions related to the resiliency of broadband networks:
- What are the major single points of failure in broadband architectures?
- What measures do communications providers already take to minimize the potential for single points of failure?
- What provisions are made by communications providers to ensure the survivability of cell sites relied on by first responders?
- What are the most effective and widely deployed physical security best practices?
- Should traffic to and from critical emergency response agencies and for critical services be prioritized on the networks during emergencies?
- What steps have been taken to ensure redundancy and diversity of physical network links to hardware?
- Is the capacity of residential access networks sufficient to handle sudden surges or overloads in traffic during, for example, a pandemic emergency?
- What network management practices are in place to handle overloads during emergencies?
The FCC says it looks forward to reviewing the record and exploring how best to further improve and secure America’s broadband infrastructure into the future. The deadline for comments on the issues presented by the PS Docket No. 10-92 NOI will be 45 days and reply comments 75 days after publication in the Federal Register. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
FCC DECLINES TO ADOPT NEW HIGH-COST SUPPORT MECHANISM FOR NON-RURAL INSULAR AREAS; ISSUES NPRM ON PUERTO RICO USF PROGRAMS: The FCC has concluded that dramatic increases in telephone subscribership in Puerto Rico over the last several years make it unnecessary to adopt a new high-cost support mechanism for non-rural insular carriers as proposed by Puerto Rico Telephone Company (PRTC). In 2005, the Commission considered creating a separate high-cost universal service support mechanism for non-rural insular areas. At that time, telephone subscribership in Puerto Rico (a non-rural insular area) was 73.8 percent, far below the national average of 94.8 percent. By 2008 – the most recent year for which data are available – subscribership in Puerto Rico had jumped to 91.9 percent. During the same period, Puerto Rico has experienced significant growth in disbursements from federal universal service support programs due in large part to changes the Commission made to its rules. Total high-cost support for Puerto Rico has risen from less than $140 million in 1998 to more than $215 million in 2008, an increase of nearly 54 percent, and low-income support has jumped from $1.16 million in 2001 to $23.4 million in 2008. Although subscription rates in Puerto Rico are still lower than the national average (98.2 percent in 2008), the substantial growth in universal service support and the commensurate increase in telephone subscribership represent significant changed circumstances since the FCC issued the NPRM in 2005. In light of these positive developments, the FCC finds that the existing non-rural high-cost support mechanism, operating in conjunction with the Commission’s other universal service programs, is successfully increasing telephone subscribership in Puerto Rico and satisfies the requirements of section 254 of the Communications Act of 1934, as amended (the Act), with respect to Puerto Rico. Telephone subscribership in Puerto Rico is not yet at the same level as in the mainland United States, but the data indicates that the gap is closing rapidly and may well be eliminated entirely in the near future. The Commission, moreover, recently adopted a Joint Statement on Broadband that recommends comprehensive reform of universal service, and delivered to Congress a National Broadband Plan that recommends, among other things, transitioning legacy high-cost universal service support to a new high–cost program that would support broadband as well as voice services. The FCC believes that the public would be best served by focusing on comprehensive universal service reform, rather than developing a new non-rural insular high-cost support mechanism within the existing legacy universal service system. Therefore, in the companion Notice of Proposed Rulemaking (NPRM), the FCC addresses this situation and proposes targeted rule changes to help eligible consumers in Puerto Rico take better advantage of existing universal service low-income support programs. Specifically, the FCC asks whether it should provide additional Link-Up support to help offset special construction charges incurred by consumers when facilities must be built to provide them with access to voice telephone service. By removing a remaining impediment to affordable voice telephone service, the FCC would hope to further close the gap in telephone subscribership between the Commonwealth and non-insular areas. Comments in this WC Docket No. 05-337, CC Docket 96-45, and WC Docket No. 03-109 proceeding will be due 30 days after publication of the item in the Federal Register, and replies will be due 15 days thereafter. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC SEEKS COMMENT ON INTRODUCTION OF CAP ALERTING PROTOCOL TO EAS: The FCC's Public Safety and Homeland Security Bureau (PSHSB) seeks informal comment regarding what, if any, changes to the Commission's rules governing the Emergency Alert System (EAS) might be necessitated by the introduction of the Common Alerting Protocol (CAP), as well as the Federal Emergency Management Agency's (FEMA) deployment of its Integrated Public Alert and Warning System (IPAWS). CAP is an open, interoperable, data interchange format for collecting and distributing all-hazard safety notifications and emergency warnings to multiple information networks, public safety alerting systems, and personal communications devices. In conjunction with appropriate alert transmission architectures, CAP will allow FEMA, the National Weather Service (NWS), a State Governor, or any other authorized initiator of a public alert and warning to automatically format and geo-target a particular alert simultaneously to the public over multiple media platforms such as television radio, cable, cell phones and electronic highway signs. CAP will also allow an alert initiator to send alerts specifically formatted for people with disabilities and for non-English speakers. Comments in this EB Docket No. 04-296 proceeding are due May 17, and replies are due June 14. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino.
GENACHOWSKI SAYS FCC HAS AUTHORITY TO IMPLEMENT NATIONAL BROADBAND PLAN: In his testimony to the Senate Commerce Committee last week, FCC Chairman Julius Genachowski said: “Notwithstanding the decision last week in the Comcast case, I am confident that the Commission has the authority it needs to implement the broadband plan. Whatever flaws may have existed in the specific actions and reasoning before the court in that case, I believe that the Communications Act — as amended in 1996 — enables the Commission to, for example, reform universal service to connect everyone to broadband communications, including in rural areas and Native American communities; help connect schools and rural health clinics to broadband; take steps to ensure that we lead the world in mobile; promote competition; support robust use of broadband by small businesses to drive productivity, growth, job creation and on-going innovation; protect and empower all consumers of broadband communications, including thorough transparency and disclosure to help make the market work; safeguard consumer privacy; work to increase broadband adoption in all communities and ensure fair access for people with disabilities; help protect broadband communications networks against cyber attack and other disasters; and ensure that all broadband users can reach 911 in an emergency.” BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
This newsletter is not intended to provide legal advice. Those interested in more information should contact the firm.