BloostonLaw Telecom Update
Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP
[Reproduced here with the firm's permission.]
| Vol. 14, No. 45 || November 30, 2011 |
Mark Your Calendar
Deadlines for CAF/ICC Further Notice
As we reported last week, the FCC has released the text of its voluminous Connect America Fund (CAF)-Intercarrier Compensation (ICC) Report & Order and Further Notice of Proposed Rulemaking (FNPRM). This is to remind clients to mark their calendars regarding the comment cycle for the FNPRM.
Sections A-K of the FNPRM focus on universal service issues, while Sections L-R deal with intercarrier compensation, and the FCC’s proposal to transition to “bill and keep.” Comment dates in this WC Docket No. 10-90, et al. proceeding are as follows:
Comments are due January 18, and replies are due February 17, on Section XVII, Parts A-K (Broadband public interest obligations; CAF for rate-of-return or RoR carriers; Interstate RoR prescription; Eliminating support for areas with an unsubsidized competitor; Limiting reimbursable capital and operating costs for RoR carriers; ETC service obligations; accountability; Annual reporting requirements for mobile service providers; Mobility Fund (Phase II); Reverse auctions; and Remote Areas Fund).
Comments are due February 24, and replies are due March 30, on Section XVII, Parts L-R (ICC—transitioning to Bill & Keep; Implementation of Bill & Keep; Reform of end user charges and CAF ICC support; IP-to-IP interconnection; Further call signaling rules for Voice over Internet Protocol or VoIP; and New ICC rules). BloostonLaw will be identifying issues and proposed positions in the comment cycles, and we invite clients to submit their concerns.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
INSIDE THIS ISSUE
- CAF/ICC Order published in Federal Register; most rules effective Dec. 29: Clock starts for Recon and appeals.
- FCC says it will use 2010 census tracts for Form 477 Local Competition and Broadband Reporting.
- FCC OKs withdrawal of AT&T/DT Transfer of Control applications for proposed T-Mobile merger.
- FCC allocates 413-457 MHz spectrum for Medical Micropower Networks.
CAF/ICC Order Published In Federal Register; Most Rules Effective December 29
Clock Starts for Recon and Appeals
The FCC has published its Connect America Fund (CAF)/Intercarrier Compensation (ICC) Report & Order (R&O) in the Federal Register. The Order amends the Universal Service Fund (USF) and ICC systems (BloostonLaw Telecom Update, November 23), with very damaging results for the entire rural telephone industry, as we reported previously. The Order will become effective December 29, except for those sections subject to information collection requirements that must be approved by the Office of Management and Budget (OMB).
BloostonLaw is working to identify reviewable issues for reconsideration, and appeal. We encourage clients to assess the impact of the USF and ICC reforms for purposes of evaluating possible reconsideration and/or issues for appeal. Petitions for Reconsideration of the Order are due December 29. The last day for appeal in a Circuit Court of Appeals is January 30.
Those sections of the R&O, which are subject to OMB review and, therefore, not effective on December 29, are as follows:
- Sec. 1.21001(b) through (d), which involve participation in competitive bidding for support. Specifically, this includes (b) application contents; (c) financial requirements for participants; and (d) application processing;
- 1.21002(c) and (d), which involve prohibitions on certain communications during the competitive bidding process. Specifically, this includes (c) duty to report potentially prohibited communications; and (d) procedures for reporting such communications.
- 1.21004(a), which involves a winning bidder’s obligation to apply for support through a timely and sufficient application.
- 51.907(b)(1), (c)(1), and (d) through (h), which involve the transition of price-cap carrier access charges.
- 51.909(b)(1), and (c) through (k), which involve the transition of rate of return (RoR) carrier access charges.
- 51.911(b) and (c), which involve access reciprocal compensation rates for competitive local exchange carriers (CLECs).
- 51.915(e)(5) and (f)(7), which involve the recovery mechanism for price cap carriers.
- 51.917(e)(6) and (f)(3), which involve revenue recovery for RoR carriers.
- 51.919, which involves reporting and monitoring requirements for both price cap and RoR carriers.
- 54.304—“Administration of Connect America Fund Intercarrier Compensation Replacement.”
- 54.312(b)(3)—CAF for price cap territories, phase 1.
- 54.313(a)(7) through (a)(11); 54.313(b) through (h)—annual reporting requirements for high-cost recipients.
- 54.314—certification of support for eligible telecommunications carriers (ETCs).
- 54.320(b)—compliance and record keeping for high-cost program.
- 54.1003—provider eligibility for Mobility Fund support.
- 54.1004(a), (c), and (d)—service to Tribal Lands.
- 54.1005(a) and (b)—application process for Mobility Fund phase 1 support.
- 54.1006(a) through (e)—public interest obligations.
- 54.1007(a) and (b)—rules for letters of credit.
- 54.1008(d) and (e)—Mobility Fund phase 1 disbursements.
- 54.1009(a) through (c)—annual reports
- 54.1010—record retention for Mobility Fund phase 1.
- 61.3(bbb)(2)—definitions related to access stimulation.
- 69.3(e)(12)—filing of access service tariffs.
Following OMB approval, the FCC will publish a notice in the Federal Register regarding the effective date of the above sections.
At our deadline, the Further Notice of Proposed Rule-making (FNPRM) accompanying the R&O had not yet been published in the Federal Register.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC Says It Will Use 2010 Census Tracts For Form 477 Local Competition And Broadband Reporting
ALL ILECs AND MOBILE TELEPHONY PROVIDERS MUST FILE IN ADDITION TO BROADBAND PROVIDERS
The FCC has issued a Public Notice regarding changes to FCC Form 477, the Local Competition and Broadband Reporting Form, due March 1, 2012. The Commission requires facilities-based wired, terrestrial fixed wireless, and satellite broadband service providers to report on FCC Form 477 the number of broadband subscribers they have in each census tract they serve. The Census Bureau changed the boundaries of some census tracts as part of the 2010 Census.
In response to informal inquiries from broadband service providers, the FCC noted that broadband service providers must use the revised census tracts (i.e., the 2010 census tracts) to report broadband subscribership information in the FCC Form 477 filing that is due no later than March 1, 2012. That filing will collect information about the filers’ operations as of December 31, 2011. The FCC said that broadband service providers also will use the 2010 census tracts in subsequent FCC Form 477 reports pending further revisions in census tract boundaries by the Census Bureau.
The Commission said that this is a change from earlier Form 477 filings in which entities reported broadband subscribership information using the census tract boundaries that the Census Bureau employed in the 2000 Census.
To facilitate the transition to reporting based on the 2010 census tracts, the FCC’s Wireline Competition Bureau (WCB) staff is modifying the Form 477 electronic filing system. The Commission said these modifications will be largely transparent to filers.
- For submissions of information as of December 31, 2011 and subsequent data-collection dates, the system will recognize as valid only the census tract codes that were valid for the 2010 Census.
- For revisions of information as of June 30, 2011 and earlier data-collection dates, the system will continue to recognize as valid only the census tract codes that were valid for the 2000 Census.
To provide additional guidance on use of 2010 census tracts, the staff is updating the explanatory materials on the “Form 477 Resources for Filers” webpage located at http://transition.fcc.gov/form477/ .
The Bureau expects system modifications and website changes to be completed by early January 2012. The “Census Tract Information” link, within the “Form 477 Resources for Filers” webpage located at http://transition.fcc.gov/form477/ , will be updated to include the 2010 census tract codes that the online filing system will accept as valid for broadband information as of December 31, 2011 and later dates.
WHO MUST FILE FORM 477?
This annual form is due March 1 and September 1 annually. Specifically, 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, BRS 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.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC OKs Withdrawal Of AT&T, DT Transfer Of Control Applications For Proposed T-Mobile Merger
The FCC has granted the AT&T Inc. and Deutsche Telekom AG (DT) request to withdrawn their applications for “Consent To Assign or Transfer Control of Licenses and Authorizations” from T-Mobile to AT&T in WT Docket No. 11-65, without prejudice. The AT&T/DT request for withdrawal of the applications stemmed from the FCC indicating last week that it was circulating an order to designate the proposed T-Mobile transaction for a hearing by an Administrative Law Judge (ALJ), following a Commission staff determination that the merger would not be in the public interest (BloostonLaw Telecom Update, November 23).
On November 23, AT&T and Deutsche Telekom electronically withdrew without prejudice the pending applications listed in the Public Notice released by the FCC on April 28, 2011 in that proceeding. AT&T said that associated manual notification of withdrawal filings also are being made. AT&T’s filing immediately sparked speculation that the FCC may not allow the withdrawal, or may dismiss the application “with prejudice”, meaning that the parties could not refile later. Instead, the FCC allowed the withdrawal without prejudice, but took the unusual step of publicly chastising the proposed merger as anticompetitive, in the order granting the withdrawal.
In its November 29 Order approving the withdrawal of applications, the FCC noted that AT&T and DT have indicated that they intend to pursue the transaction, after dealing with antitrust concerns expressed by the Department of Justice (DoJ) in its court challenge. Therefore, the FCC indicated that it felt compelled to voice its concerns about the transaction.
In fact, AT&T and Deutsche Telekom said they are continuing to pursue the sale of T-Mobile to AT&T and are taking this “application withdrawal” step to facilitate the consideration of all options at the FCC and to focus their continuing efforts on obtaining antitrust clearance for the transaction from the [DoJ] either through the litigation pending before the U.S. District Court for the District of Columbia, Case No. 1:11-cv-01560 (ESH) or alternate means. As soon as practical, AT&T said, it and Deutsche Telekom intend to seek the necessary FCC approval.
As a result, AT&T expects to recognize a pretax accounting charge of $4 billion ($3 billion cash and $1 billion book value of spectrum) in the fourth quarter of 2011 to reflect the potential break up fees due Deutsche Telekom in the event the transaction does not receive regulatory approval.
A report by Bloomberg suggests that AT&T is considering an asset sale that might include as much as 40% of T-Mobile’s assets. There is also speculation that the asset sale would include a higher percentage of customers, rather than spectrum, because AT&T needs the capacity, according to Bloomberg . It added that the asset sale proposal is an attempt to address DoJ’s concerns about the merger.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Cary Mitchell, and Richard Rubino.
FCC ALLOCATES 413-457 MHz SPECTRUM FOR MEDICAL MICROPOWER NETWORKS: At its November 30 open meeting, the FCC adopted a Report and Order that allocates spectrum in the 413-457 MHz band and adopts service and technical rules for Medical Micropower Networks, which rely on new types of implanted medical devices that use functional electric stimulation to, among other things, restore sensation, mobility, and function to paralyzed limbs and organs. Additionally, the Commission staff provided a presentation on the Commission’s recent broadband adoption efforts, including a first-of-its-kind national effort to address the barriers to broadband adoption, digital literacy, and the employment skills gap. Clients still operating paging or dispatch operations in the 454/459 MHz band will want to make sure they report any interference that may be received from the new devices. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
FCC REVISES INSTRUCTIONS FOR CIPA FORMS 479, 486: The FCC’s Wireline Competition Bureau (WCB) has announced that the Office of Management and Budget (OMB) has approved the revised instructions accompanying the FCC Form 479 (Certification by Administrative Authority to Billed Entity of Compliance with the Children’s Internet Protection Act), and FCC Form 486 (Receipt of Service Confirmation Form). These forms are filed by service providers for reimbursement for eligible services provided to schools and libraries under the E-rate program, and to c. Applicants are required to make their Children’s Internet Protection Act (CIPA) certifications on these forms. While the forms themselves have not changed, the instructions to these forms have been updated to include a new certification from the Protecting Children in the 21st Century Act which will be required of applicants starting July 1, 2012. Pursuant to these updates, the instructions to FCC forms 479 and 486 state “[b]eginning July 1, 2012, when schools certify their compliance with CIPA, they will also be certifying that their Internet safety policies have been updated to provide for educating minors about appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms and cyberbullying awareness and response.” The instructions to the forms are dated August 2011 and the forms retain the date April 2007. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
COMMENT SOUGHT ON REQUEST TO PREEMPT FCC’s “OVER-THE-AIR RECEPTION DEVICES RULE”: The FCC has asked for comment on the Satellite Broadcasting & Communications Association’s Petition for Declaratory Ruling asking the Commission to determine whether an antenna installation ordinance of the City of Philadelphia is preempted by Section 1.4000 of the Commission’s rules (the “Over-the-Air Reception Devices Rule”). The City’s ordinance seeks to limit installation of antennas between the building façade and the street. Comments in this proceeding are due December 22, 2011, and replies are due January 6, 2012. Commenters should refer to the case identifier, CSR-8541-O. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino.
COMMENT SOUGHT ON ADDITIONAL MEASURES TO IMPROVE TRANSPARENCY, EFFICIENCY IN FCC PROCEEDINGS: The FCC has issued a Public Notice requesting comment on additional procedures to improve transparency and efficiency in Commission proceedings. In particular, the FCC seeks comment on whether it should require commenters to file materials they cite in pleadings submitted in rulemaking proceedings, so that those materials are more easily accessible to all interested parties. In some proceedings, particularly large and complicated rulemakings, staff may analyze materials that parties have not submitted in the record, including materials such as state statutes, academic articles, blog posts, and company financial reports, the FCC said. This material may or may not contribute to the Commission’s final decision, and seeking comment specifically on all the sources viewed by staff would greatly enlarge the record and tax the time and resources of the Commission and parties, with potentially little benefit. In an effort to balance these considerations, staff has submitted collections of materials into the record of at least two major proceedings.
In the Preserving the Open Internet proceeding, staff added the full text of various sources including FCC working papers, transcripts from FCC workshops, comments submitted in other Commission rulemaking proceedings, public financial filings, academic literature, news articles, blog posts, corporate and non-profit research reports, material from industry participants’ websites, and investment firm conference call transcripts. In the Connect America Fund proceeding, staff added citations to similar materials, including material from other federal and state government entities, books, and data already released by the Commission or the Universal Service Administrative Company. In many instances, filings that the Commission staff placed in the record had been cited by commenters in their filings, and the staff’s submission was intended to make the materials more accessible. In both proceedings, however, a small number of commenters voiced concern that such submissions, toward the end of the proceeding, might not serve their intended purpose of promoting transparent decision making and might, indeed, limit opportunities for meaningful responsive comment.
In light of these developments, the FCC seeks comment on filing requirements that may improve transparency and informed decision making in future rulemaking proceedings. In particular, it seeks comment on requiring parties to submit full copies of any materials cited in their pleadings or ex parte submissions. Such a requirement may be viable under the Commission’s current electronic filing processes, when it would not previously have been feasible. Further, it could help to ensure that the record timely and unambiguously includes those materials that parties to our proceedings believe to be germane and informative, the FCC said. However, the proposed requirement could make many filings unwieldy and make participation in rulemakings more burdensome. Comments in this GC Docket No. 10-44 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: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
COMMENT SOUGHT ON NANC PROPOSAL FOR CUSTOMER SERVICE RECORD REQUESTS: On October 3, 2011, the North American Numbering Council (NANC) submitted a report on local number portability (LNP) Best Practice 70. The Report notes that there is currently no industry-wide standard on what information the transferring service provider may require from a new service provider when the new provider requests a Customer Service Record (CSR). Best Practice 70 provides that the transferring service provider may only require the following information when the new service provider requests a CSR: any working telephone number associated with the customer’s account; a positive indication that the new service provider has the authority from the customer; and the date the customer gave that authority. The FCC seeks comment on Best Practice 70 and on whether the Commission should adopt it as a rule. Comments in this WC Docket No. 07-244 proceeding will be due 30 days after publication of the item in the Federal Register, and replies will be due 30 days thereafter. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FOUR ARRESTED IN PHILIPPINES REGARDING HACKING OF AT&T CUSTOMERS: Reuters reports that the FBI and Philippine police have arrested four people in connection with a hacking operation that targeted customers of AT&T to funnel money to a Saudi Arabia-based militant group. Those arrested last week in Manila were reportedly paid by the same group the FBI says funded the November 2008 attacks in Mumbai, Reuters said. It added that the hacking resulted in almost $2 million in losses incurred by AT&T. The hackers targeted customers and not AT&T itself. They broke into the phone systems of some AT&T customers and made calls to expensive international premium-rate services, Reuters said. Apparently, hackers make calls to the numbers from hacked business phone systems or mobile phones then collect their cash and move on before the activity is identified, Reuters said. Telecommunications carriers often end up footing the bill for the charges.
CANADA SEEKS FREQUENCY COORDINATION FOR CERTAIN EARTH STATIONS: The government of Canada has requested frequency coordination for certain Canadian earth stations operating in the 3700-4200 MHz and 5925-6425 MHz frequency bands. Comments in this proceeding are due December 27. If no adverse comments are received by that date, these earth stations will be considered satisfactorily coordinated with the USA and Canada will be so advised. Commenters should refer to Report No. SPB-238. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino.
IOWA COMMUNICATIONS NETWORK TO GO UP FOR SALE: Iowa Communications Network’s (ICN’s) statewide fiber optics network apparently will be up for sale or lease, according to various media reports. Iowa’s governor and the state legislature reportedly have established a special committee to formulate bid specifications for soliciting offers by June 30, 2013. Bids for the ICN backbone system and its 8,661 miles of fiber optic cable will be considered from private vendors. The governor has stated that he believes the ICN network, which was built in the 1990s with federal money using public transportation rights of way and is based in the Iowa National Guard’s command center, can be transferred into private hands under the right circumstances, and he said he would entertain any viable offer that might materialize when requests for proposals (RFPs) go out. The network was constructed primarily to deliver distance-learning programs to Iowa schools.
This newsletter is not intended to provide legal advice. Those interested in more information should contact the firm.