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. 4|| x January 27, 2010 |
FCC Announces Tentative Agenda For February 11 Open Meeting
FCC Chairman Julius Genachowski has announced that the following items will be on the tentative agenda for the next open meeting scheduled for Thursday, February 11, 2010:
- E-Rate: 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 ex parte rules.
- Procedural Reform: 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.
BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
INSIDE THIS ISSUE
- FCC proposes tougher TCPA restrictions for “Robocalls.”
- FCC announces Auction 87 procedures, deadlines.
- Reminder that BTOP/BIP applicants must meet certain obligations.
- FCC issues order to promote competition in video distribution market.
- FCC affirms waiver for whole body scanning imaging system.
FCC Proposes Tougher TCPA Restrictions For “Robocalls”
The FCC has proposed revisions to its rules under the Telephone Consumer Protection Act (TCPA) to further empower residential telephone subscribers to avoid unwanted telephone solicitations. The proposals would require sellers and telemarketers to obtain written consent from recipients before making prerecorded telemarketing calls, commonly referred to as “robocalls,” even when the caller has an established business relationship with the consumer. Additionally, the FCC proposes to make it easier to opt out of receiving robocalls.
These new restrictions would harmonize the FCC’s rules with the Federal Trade Commission’s (FTC’s) recent amendments to its Telemarketing Sales Rule. Because the majority of entities that use prerecorded telemarketing calls are subject to both agencies’ telemarketing regulations, most regulated entities must comply with the FTC’s current, more restrictive standards. However, entities outside the FTC’s jurisdiction, such as telephone companies, airlines, banks, and insurance companies, are currently subject to less restrictive standards.
Key revisions proposed by the FCC include:
- Requiring sellers and telemarketers to obtain telephone subscribers’ express written consent (including electronic methods of consent) to receive prerecorded telemarketing calls, even when there exists an established business relationship between the caller and the consumer;
- Requiring that prerecorded telemarketing calls include an automated, interactive mechanism by which a consumer may “opt out” of receiving future prerecorded messages from a seller or telemarketer; and,
- Exempting certain federally regulated healthcare-related calls from the general prohibition on prerecorded telemarketing calls to residential telephone lines. (These calls are currently not specifically exempted from the prerecorded message rules.)
- The Commission asks for comments on whether these proposed revisions would benefit consumers and industry by creating greater symmetry between the FCC and FTC regulations and by extending the FTC’s standards to regulated entities that are not currently subject to FTC rules.
The Commission noted that the proposed rule changes would not affect categories of prerecorded message calls that are not currently covered by its TCPA rules. Those categories include calls by or on behalf of tax-exempt non-profit organizations; calls for political purposes, such as those made by politicians or political campaigns; calls for other noncommercial purposes; and commercial calls that do not contain unsolicited advertisements, for example, calls that deliver purely “informational” messages notifying recipients of a flight cancellation. Furthermore, because the TCPA’s restrictions on prerecorded messages do not apply to calls initiated for emergency purposes, the proposed rule revisions would not affect messages sent to consumers to alert them to emergency situations.
Comments in this CG Docket No. 02-278 proceeding will be due 30 days after publication of the item in the Federal Register, and replies will be due 30 days thereafter. The item was adopted at the FCC’s January 20 open meeting.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC Announces Auction 87 Procedures & Deadlines
The FCC has announced the procedures and minimum opening bid amounts for the upcoming auction of 9,603 licenses for lower and upper paging bands spectrum. This auction, which is designated as Auction 87, is scheduled to commence on May 25, 2010. The key deadline is for filing a “short form” application to participate in the auction, which is set for March 16, 2010.
Auction 87 will offer 9,603 paging licenses consisting of 7,752 licenses in the lower paging bands (35 MHz, 43 MHz, 152 and 158 MHz, 454 and 459 MHz) and 1,851 licenses in the upper paging bands (929 MHz and 931 MHz). The paging channels to be auctioned can be used for commercial or internal mobile dispatch and other operations, with appropriate waivers from the FCC. We have successfully helped several clients obtain paging channels and the appropriate rule waivers for internal dispatch operations in prior auctions.
Auction 87 will include licenses that remained unsold from a previous auction, licenses on which a winning bidder in a previous auction defaulted, and licenses for spectrum previously associated with licenses that cancelled or terminated. In a few cases, the available license does not cover the entire geographic area due to an excluded area or previous partitioning. The relevant deadlines for this auction are as follows:
- Auction Tutorial Available (via Internet): March 4, 2010
- Short-Form Application (FCC Form 175) Filing Window Opens: March 4, 2010; 12:00 noon ET
- Short-Form Application (FCC Form 175) Filing Window Deadline : March 16, 2010; prior to 6:00 p.m. ET
- Upfront Payments (via wire transfer): April 23, 2010; 6:00 p.m. ET
- Mock Auction: May 21, 2010
- Auction Begins: May 25, 2010
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino.
Reminder That BTOP/BIP Applicants Must Meet Certain Obligations
This is to remind clients who receive grants and/or loans in the National Telecommunications and Information Administration (NTIA) Broadband Technology Opportunities Program (BTOP) and/or the Rural Utilities Service (RUS) Broadband Initiative Program (BIP) that they must meet various obligations and requirements. Since these requirements can carry severe penalties for non-compliance, it is vital that the grant/loan winners fully understand the record-keeping and reporting requirements and abide by them precisely. BloostonLaw is available to help grantees in this regard.
Clients should note that there are three layers of compliance rules:
- the government-wide general administrative requirements for grant recipients;
- the American Recovery and Reinvestment Act (ARRA)-specific requirements; and
- the program requirements specific to the BTOP and BIP programs.
The general administrative requirements vary based on the type of entity, be it for profit, non-profit, higher education, hospital, etc., and are often governed by separate documents. These rules require specific methods of accounting, reporting, and document retention.
Beyond the general government requirements, the ARRA itself contains specific requirements that entail certain additional reporting duties, as well as requiring adherence to the Buy American provisions, §1606 Wage Rate Requirements, and the National Environment Policy Act and the National Historic Preservation Act environmental assessment requirements.
In addition, award recipients must also follow further specified quarterly reporting and audit requirements based on the projects they are involved in, as outlined in the Notice of Funding Availability (NOFA).
Applicants must also be aware of the restrictions on the sale or lease of project assets that the NOFA puts in place.
The compliance protocols also require an agreement to submit to periodic auditing. Awardees will be required to submit annual audit reports pertaining to their use of government funds, and all documents related to the funded project must be made available to NTIA, RUS, and the Office of the Inspector General upon request.
Records must be contemporaneous to the actions they describe, rather than a report or accounting made long after the transaction occurred.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, John Prendergast, and Mary Sisak.
FCC ISSUES ORDER TO PROMOTE COMPETITION IN VIDEO DISTRIBUTION MARKET: The FCC has established a process for considering, on a case-by-case basis, complaints about the availability of terrestrially delivered, cable-affiliated programming, addressing what is commonly referred to as the “terrestrial loophole.” These new rules allow direct broadcast satellite (DBS) providers, telcos and other competitors to obtain more of the “must have” programming they need to offer viable alternative video packages to consumers and an opportunity to file complaints if the programming is withheld. The Order concludes the Commission has authority under Section 628(b) of the Communications Act to take action if a cable operator engages in unfair acts with respect to terrestrially delivered, cable-affiliated programming that significantly hinder a multichannel video programming distributor from providing satellite cable programming to consumers. The Commission adopts a rebuttable presumption that an unfair act involving a terrestrially delivered, cable-affiliated regional sports network has the purpose or effect set forth in Section 628(b). The Order adopts rules permitting complainants to pursue program access claims similar to the claims they may pursue involving satellite-delivered, cable-affiliated programming. Because the claims involving terrestrial programming require an additional factual inquiry regarding whether the unfair act significantly hinders the complainant from providing satellite cable programming to consumers, additional time will be given to present rebuttal information. The Commission has before it a number of specific complaints alleging that cable operators have significantly hindered competition by withholding from their rivals terrestrially delivered regional sports networks. The Order does not decide those complaints but describes how they can be handled going forward. It provides that complainants may continue to pursue their complaints as filed. If, instead, a complainant wants a currently pending complaint to be considered under the new rules, it may submit a supplemental filing alleging that the defendant has engaged in an unfair act after the effective date of the rules. The Order also establishes procedures for the Commission’s consideration of requests for a temporary standstill of the price, terms, and other conditions of an existing programming contract by a program access complainant seeking renewal of such a contract. BloostonLaw contact: Gerry Duffy.
FCC AFFIRMS WAIVER FOR WHOLE BODY SCANNING IMAGING SYSTEM: The FCC has affirmed a rule waiver permitting the certification and subsequent marketing and operation of L-3 Communications SafeView Inc. ProVision 100 security portal full-body imaging devices. This system is used to detect weapons or contraband carried on an individual’s person, including non-metallic objects or explosives, which might otherwise require intrusive manual searches or be missed entirely by existing metal detectors. The Office of Engineering and Technology (OET) first waived the rules for this device in 2006 when it issued an Order granting a waiver of the Part 15 rules for unlicensed devices to L-3 Communications Safeview Inc. By its Order, it permitted the measurement of radio frequency emissions from the ProVision 100 security portal with the frequency sweeping active (as in its normal operation), rather than with the sweep disabled, as prescribed by the rules. OET found that there would be no increase in the interference risk by performing the measurements with the sweep active. In September 2009, OET modified the waiver to allow more time for sale of the 300 units permitted under the waiver. In the current Memorandum Opinion and Order (MO&O), the Commission rejects arguments made by FiberTower Corporation with regard to the potential for interference to certain fixed microwave systems and accordingly denies its petition for reconsideration of the 2006 Order in most respects. It does grant FiberTower’s request regarding the maintenance of ProVision 100 installation records by clarifying that L-3 SafeView must continue to maintain a list of all installed ProVision devices and update it following changes in device location and/or transfer of ownership to third parties subsequent to an initial sale. This list will be available to the Commission and the National Telecommunications and Information Administration upon request. The Commission’s decision today will allow continued marketing and operation of the L-3 Communications SafeView Inc. ProVision 100 security portal system. “National security is one of the Commission’s top priorities and the agency has an important role in promoting the development of innovative technologies to ensure the safety of the public,” said Chairman Julius Genachowski. “With this action, we are helping to ensure that security personnel have access to the most cutting-edge equipment for protecting the public, while still preventing interference to other vital interests.” BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino.
HOUSE PANEL MARKS UP SPECTRUM INVENTORY & SPECTRUM RELOCATION BILLS: The House Sub-committee on Communications, Technology and the Internet has marked up and passed legislation that would create a spectrum inventory and a bill designed to speed the process of clearing federal users from spectrum that the government has already reallocated for commercial use. Under the provisions of the Radio Spectrum Inventory Act (HR 3125), after the inventory is completed the National Telecommunications and Information Administration (NTIA) and the FCC would be required to report the results to Congress and to create a Website to make the inventory publicly available. The report would include a description of information that could not be made publicly available for national security reasons. The sub-committee also approved the Spectrum Relocation Improvement Act (HR 3019), designed to speed the process of clearing federal users from spectrum that the government has reallocated for commercial use. Law-makers are concerned that winners of the FCC's 2006 advanced wireless services spectrum still not do not have full use of the spectrum (AWS). Both bills have been referred to the full House Energy and Commerce Committee. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell.
NTIA AWARDS BROADBAND EXPANSION GRANTS TOTALING $63 MILLION: The National Telecommunications and Information Administration (NTIA) has announced grants totaling $63 million to expand broadband access and adoption in Massachusetts, Michigan and North Carolina. Funded by the American Recovery and Reinvestment Act, NTIA’s Broadband Technology Opportunities Program (BTOP) provides grants to support the deployment of broadband infrastructure in unserved and underserved areas, enhance and expand public computer centers, and encourage sustainable adoption of broadband service. These investments will help bridge the technological divide, boost economic growth and create jobs. The grants include the following:
Massachusetts, University of Massachusetts-Lowell: $780,000 broadband adoption grant with an additional $196,000 in applicant-provided matching funds to promote broadband awareness and computer literacy among vulnerable populations, including the nation’s second largest Cambodian population, low-income and at-risk youth, the unemployed, residents without college degrees, and seniors in Lowell and Merrimack Valley. As part of the program, University of Massachusetts–Lowell students will work in local computer centers with at-risk youth and seniors to develop appropriate training and outreach materials.
Michigan, Merit Network, Inc.: $33.3 million infrastructure grant with an additional $8.3 million in matching funds to build a 955-mile advanced fiber-optic network through 32 counties in Michigan’s Lower Peninsula. The project also intends to directly connect 44 community anchor institutions and will serve an area covering 886,000 households, 45,800 businesses, and an additional 378 anchor institutions.
Michigan, Michigan State University: $895,000 public computer center grant with an additional $235,000 in matching funds to expand 84 existing library computer centers and establish four new computer centers. Computer center sites were selected by targeting under-served and high-unemployment population areas and then focusing on those libraries with the greatest need for additional computing capacity. The project will add 500 new workstations at these targeted public computer centers throughout the state and serve nearly 13,000 additional users per week.
North Carolina, MCNC: $28.2 million infrastructure grant with an additional $11.7 million in matching funds and in-kind contributions to build a 494-mile middle-mile broadband network passing almost half the population of North Carolina in 37 counties. The network will build new rings in the western and eastern regions of the state, which will connect to 685 miles of existing infrastructure in the urbanized central region, expanding the reach of the North Carolina Research and Education Network (NCREN), an established broadband service for community anchor institutions in the state.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, John Prendergast, and Mary Sisak.
FCC SEEKS ETF INFORMATION FROM WIRELESS CARRIERS: The FCC has sent letters to AT&T, Google, Sprint Nextel, T-Mobile, and Verizon Wireless to gather facts and data on the consumer experience with wireless early termination fees (ETFs). In general, the FCC asked the carriers to (1) describe how their ETFs apply to their service plans; (2) identify amounts, discounts, and variations in ETFs; (3) explain the rationale for differences in rates and terms for different plans; and (4) various other questions. The Commission asked that the carriers respond by February 23. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell.
OBITUARY: Former FCC Commissioner James H. Quello, 95, died Sunday at his home in Alexandria, Virginia. He served for 24 years as a commissioner and as acting Chairman in 1993. In a statement, FCC Chairman Julius Genachowski said: "Commissioner Quello’s long life was packed with accomplishment. He was born April 21, 1914, in Laurium, Michigan — eleven years before the first public demonstration of television and two decades before the creation of the FCC. He served his country with great valor and distinction in World War II, surviving six amphibious landings and earning multiple decorations and campaign ribbons. He spent his first career as a broadcaster, finding ways to serve local communities in the early days of the medium. And he went on to serve the FCC as Commissioner from 1974 until 1997, receiving numerous honors and earning widespread respect and affection.”