BloostonLaw Telecom Update
Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP
[Portions reproduced here with the firm's permission.]
| Vol. 14, No. 24|| June 15, 2011 |
Senate Panel OKs Public Safety Communications Bill
The Senate Commerce Committee last week voted 21-4 to approve the Public Safety Spectrum and Wireless Innovation Act (S. 911). The legislation was introduced by committee Chairman John D. Rockefeller IV (D–W.Va.) and Ranking Member Kay Bailey Hutchison (R–Texas). Key provisions of the legislation include:
- Establishing a framework for the deployment of a nationwide, interoperable, wireless broadband network for public safety.
- Allocating 10 MHz of spectrum, known as the “D-block,” to public safety.
- Directing the FCC to establish standards that allow public safety officials, when not using the network, to lease capacity on a secondary but pre-emptible basis to non-public safety entities.
- Providing the Commission with incentive auction authority, which allows existing spectrum licensees to voluntarily relinquish their airwaves in exchange for a portion of the proceeds of the commercial auction of their spectrum.
- Directing the National Science Foundation and the National Institute of Standards and Technology to conduct cutting-edge research into transformative wireless technologies.
- Directing surplus revenue from spectrum auctions, estimated to be more than $10 billion, to the U.S. Treasury for deficit reduction.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell.
INSIDE THIS ISSUE
- Executive Order creates White House Rural Council.
- FCC report focuses on info needs of communities.
- High Court backs FCC on LEC interconnection rules.
- Court invites FCC to file brief in UNE leasing case.
- FCC proposes 14.4% contribution factor for third quarter.
Executive Order Creates White House Rural Council
President Obama has issued an executive order establishing a White House Rural Council. The order states that 16% of the American population lives in rural counties, and that strong, sustainable rural communities are essential to winning the future and ensuring American competitiveness in the years ahead. “These communities supply our food, fiber, and energy, safeguard our natural resources, and are essential in the development of science and innovation. Though rural communities face numerous challenges, they also present enormous economic potential. The Federal Government has an important role to play in order to expand access to the capital necessary for economic growth, promote innovation, improve access to health care and education, and expand outdoor recreational activities on public lands,” according to the President.
The purpose of the new rural council is to better coordinate Federal programs and maximize the impact of Federal investment to promote economic prosperity and quality of life in rural communities. The council be chaired by the Secretary of Agriculture and will include the heads of all other cabinet-level executive branch departments (Treasury, Defense, Justice, etc.); certain Federal agencies (FCC, OMB, etc.); and other offices such as the National Economic Council, Council of Economic Advisors, etc. Funding will come from the Agriculture Department.
Mission and Function of the Council. The council shall work across executive departments, agencies, and offices to coordinate development of policy recommendations to promote economic prosperity and quality of life in rural America, and shall coordinate the Administration's engagement with rural communities.
addition, the council shall:
(a) make recommendations to the President, through the Director of the Domestic Policy Council and the Director of the National Economic Council, on streamlining and leveraging Federal investments in rural areas, where appropriate, to increase the impact of Federal dollars and create economic opportunities to improve the quality of life in rural America;
(b) coordinate and increase the effectiveness of Federal engagement with rural stakeholders, including agricultural organizations, small businesses, education and training institutions, healthcare providers, telecommunications services providers, research and land grant institutions, law enforcement, State, local, and tribal governments, and nongovernmental organizations regarding the needs of rural America;
(c) coordinate Federal efforts directed toward the growth and development of geographic regions that encompass both urban and rural areas; and1
(d) identify and facilitate rural economic opportunities associated with energy development, outdoor recreation, and other conservation related activities.
(a) The heads of executive departments and agencies shall assist and provide information to the Council, consistent with applicable law, as may be necessary to carry out the functions of the Council. Each executive department and agency shall bear its own expense for participating in the Council.
(b) Nothing in the President’s order shall be construed to impair or otherwise affect:
(i) authority granted by law to an executive department, agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(c) The order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) The order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
FCC Report Focuses On Info Needs Of Communities
The FCC Working Group on the Information Needs of Communities has delivered an analysis of the current state of the media landscape along with a broad range of recommendations. The staff-level report, titled “Information Needs of Communities: The Changing Media Landscape in a Broadband Age” was delivered to the FCC at last week’s open meeting.
FCC Chairman Julius Genachowski said that while the report’s findings and recommendations identify and celebrate the potential of new communications technologies, it also highlights important gaps that threaten to limit that potential and harm communities. “Foremost is the disruptive impact the Internet has had on local news gathering. This is an emerging gap in local news coverage that has not yet been fully filled by other media. And the less quality reporting we have, the less likely we are to learn about government misdeeds.”
The report was produced by a group of journalists, scholars, entrepreneurs and government officials, led by Steven Waldman, a digital media entrepreneur and former journalist. Waldman worked for Newsweek, U.S News & World Report and WallStreetJournal.com. He was also the cofounder and CEO of Beliefnet.com, which won the National Magazine Award for General Excellence Online and was later acquired by FOX Networks Group.
Key findings and recommendations include:
Fueled primarily by broadband-enabled innovation, the news and information landscape is more vibrant than ever before. Digital technology is creating a world of opportunity to keep the public informed in ways unimaginable just a few short years ago.
The disruptive impact of the Internet has enabled an unprecedented free exchange of ideas and information. Breakthroughs in hyper-local news and citizen journalism are on the rise, empowering individuals with a wealth of new information to better inform decision-making and engender more accountable government.
There are nonetheless serious gaps, including in local accountability reporting. These deficits increase the likelihood of corruption, wasted tax dollars, worse schools and other problems for communities.
Accelerate move from paper to online disclosure. Disclosure information required by the FCC should be moved online from filing cabinets to the Internet so the public can more easily gain access to valuable information. FCC should eliminate burdensome rules and replace the current system with a streamlined web-based disclosures focused on providing information about local programming.
Remove barriers to innovation and online entrepreneurship by pushing for universal broadband deployment and adoption. Achieving this goal would remove cost barriers, strengthen online business models, expand consumer pools and ensure that the news and information landscape serves communities to the maximum possible benefit of citizens.
Target existing federal spending at local media. Existing government advertising spending, such as military recruiting and public health ads, should be targeted toward local media whenever possible. Each year, the federal government spends roughly $1 billion in advertising without maximizing potential benefits to local media.
Over the course of a year, the group conducted more than 600 in-depth interviews, received thousands of public comments, held several open workshops, examined thousands of pages of existing research, and made numerous site visits to newsrooms across the country. The working group’s report will complement a Federal Trade Commission (FTC) report expected to be issued later this year, which will examine the transformation and new competitive dynamics of the news business.
BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
High Court Backs FCC On LEC Interconnection Rules
The U.S. Supreme Court has reversed a lower court order, holding that the FCC has advanced a reasonable interpretation of its Triennial Review Order regulations—i.e., that to satisfy its duty under Section 251(c)(2) of the Telecommunications Act, an incumbent local exchange carrier (LEC) must make its existing entrance facilities available to competitors at cost-based rates if the facilities are to be used for interconnection—and the Supreme Court defers to the FCC's views. In Talk America v. Michigan Bell dba AT&T Michigan, the court noted that the Act requires incumbent LECs to share their physical networks with competitive LECs at cost-based rates in two ways.
First, an incumbent LEC can lease "on an unbundled basis"—i.e., a la carte—network elements specified by the FCC to allow a competitor to create its own network without having to build every element from scratch. In identifying those elements, the FCC must consider whether access is "necessary" and whether failing to provide it would "impair" the competitor's provision of service.
Second, Section 251(c)(2) mandates that incumbent LECs "provide ... interconnection" between their networks and competitive LECs' to ensure that a competitor's customers can call the incumbent's customers, and vice versa. The interconnection duty is independent of the unbundling rules and not subject to impairment analysis.
In its 2005 Triennial Review Remand Order, the FCC said that cost-based unbundled access to such facilities need not be provided under Section 251(c)(3). Treating entrance facilities as network elements, the FCC concluded that competitive LECs are not impaired without access to such facilities. The FCC again emphasized that competitive LECs' Section 251(c)(2) right to obtain interconnection had not been altered.
In the Remand Order's wake, respondent AT&T notified competitive LECs that it would no longer provide entrance facilities at cost-based rates for either backhauling or interconnection, but would instead charge higher rates. Competitive LECs complained to the Michigan Public Service Commission that AT&T was unlawfully abrogating their right to cost-based interconnection. The Michigan Public Service Commission agreed and ordered AT&T to continue providing entrance facilities for interconnection at cost-based rates. AT&T challenged the ruling. Relying on the Remand Order, the Federal District Court ruled in AT&T's favor. The 6th U.S. Circuit Court of Appeals in Cincinnati affirmed, declining to defer to the FCC's argument that the order did not change incumbent LECs' interconnection obligations, including the obligation to lease entrance facilities for interconnection.
As noted above, the Supreme Court reversed the 6th Circuit, noting that it “defers to the FCC's views.”
According to the high court, the FCC proffers a three-step argument why its regulations require AT&T to provide access at cost-based rates to existing entrance facilities for interconnection purposes.
(1) Interpreting Section 51.321(a) of its rules, the FCC first contends that an incumbent LEC must lease "technically feasible" facilities for interconnection.
(2) The FCC contends, second, that existing entrance facilities are part of an incumbent LEC's network, Section 51.319(e), and therefore are among the facilities that an incumbent LEC must lease for interconnection, if technically feasible.
(3) Third, the FCC says, it is technically feasible to provide access to the particular entrance facilities at issue in these cases—a point AT&T does not dispute.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
COURT INVITES FCC TO FILE BRIEF IN UNE LEASING CASE: The 10th U.S. Circuit Court of Appeals in Denver has invited the FCC to file an amicus curiae (“friend of the court”) brief in Qwest v. Colorado Public Utilities Commission, a case involving Federal rules requiring incumbent local exchange carriers (ILECs) to lease certain parts of their telecommunications networks to competitive local exchange carriers (CLECs) on an unbundled basis, in order to facilitate competition in the local telephone service market. The court noted that ILECs are relieved of this obligation if the number of “business lines” in a wire center reaches a certain threshold. The term “business line” and the method of determining the number of business lines in a wire center are defined in 47 C.F.R. § 51.5. The parties offer differing interpretations of that regulation. In particular, they disagree as to which unbundled network element (UNE) loops are included in a wire center’s business line count. The defendants have asked the 10th Circuit to refer this matter to the FCC pursuant to the doctrine of primary jurisdiction. The court declined to do this and, instead, invited the Commission to file its brief. In particular, the court invited the FCC to address the following questions: (1.) Does the business line count in 47 C.F.R. § 51.5 include only UNE loops that serve business customers? (2.) Does the business line count in 47 C.F.R. § 51.5 include only UNE loops that are connected to switches? The Commission has 30 days to file its brief. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC PROPOSES 14.4% USF CONTRIBUTION FACTOR FOR THIRD QUARTER: The FCC’s Office of Managing Director (OMD) has proposed a universal service contribution factor of 0.144 or 14.4% for the third quarter of 2011. This is down slightly from the 14.9% factor in the second quarter, and down from the record 15.5% contribution factor in the first quarter of this year. This 3Q 14.4% USF contribution factor is up from 12.9% in the fourth quarter; 13.6% for the third quarter; and down from the former record 15.3% figure for the second quarter of 2010. And it compares with 14.1% for the first quarter of 2010; 12.3% for the fourth quarter of 2009; and 12.9% for the third quarter of 2009. If the Commission takes no action by June 28, the 14.4% contribution factor for the third quarter of 2011 will be deemed approved by the Commission. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC SETS COMMENT DATES FOR NPRM PROPOSING TO EXTEND OUTAGE REPORTING REQUIREMENTS TO VOIP, BROADBAND PROVIDERS: The FCC has established a comment cycle for its Notice of Proposed Rulemaking (NPRM) seeking comment on a proposal to extend the Commission's communications outage reporting requirements to interconnected Voice over Internet Protocol (VoIP) service providers and broadband Internet Service Providers (ISPs). The NPRM is expected to help ensure that current and future 9-1-1 systems are as reliable and resilient as possible, and assist national preparedness for man-made or natural disasters, such as Hurricane Katrina (BloostonLaw Telecom Update, May 18). Comments in this PS Docket No. 11-82 proceeding are due August 8, and replies are due October 7. The NPRM would allow the Commission, and other Federal agencies, to track and analyze information on outages affecting broadband networks. The availability of this information would also help the Commission determine the extent of the problem nationwide, identify recurring problems, determine whether action can be taken immediately to help providers recover or prevent future outages, and ensure to the extent possible that broadband networks are prepared for disasters. The FCC said its proposed action will allow it to use the same process it currently uses with wireline and wireless providers to refine best practices to prepare broadband communications networks better for emergency situations. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
VERIZON WIRELESS, USCC SEEK TO EXCHANGE CERTAIN PCS, LOWER 700 MHz BAND LICENSES: Verizon Wireless and United States Cellular Corporation-Central Illinois (USCC-CI) have filed four applications seeking to exchange certain Broadband Personal Communications Service (PCS) and Lower 700 MHz Band B and C Block licenses. In particular, USCC-CI will assign to Verizon Wireless two 10 megahertz PCS licenses in Illinois and Indiana, and Verizon Wireless will assign to USCC-CI 13 Lower 700 MHz Band B Block licenses and five Lower 700 MHz C Block licenses in Idaho, Illinois, Indiana, Kansas, Nebraska, Oklahoma, Oregon, and Washington. The proposed assignment of licenses from USCC-CI to Verizon Wireless involves licenses covering 14 counties in five Cellular Market Areas (CMAs), and the proposed assignment of licenses from Verizon Wireless to USCC-CI involves licenses covering 95 counties in 18 CMAs. The Applicants state that the PCS spectrum to be assigned to Verizon Wireless will allow Verizon Wireless to expand capacity and improve its services offerings in the relevant markets, and the Lower 700 MHz Band spectrum to be assigned to USCC will allow USCC to expand into new markets, and improve network capacity and upgrade voice and data services in its existing markets. Petitions to deny are due June 21; oppositions are due July 1; and replies are due July 11. All filings should refer to ULS File No. 0004697471, 0004697504, 0004698676, and/or 50004CWAA11, as appropriate. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell.
NENTC SEEKS TO TRANSFER TWO NEBRASKA LOWER 700 MHz C-BLOCK LICENSES TO USCC: USCC Nebraska/Kansas, LLC (USCC-NK), an indirect wholly-owned subsidiary of United States Cellular Corporation, and Northeast Nebraska Telephone Company (NENTC) have filed an application to assign two Lower 700 MHz C Block licenses from NENTC to USCC-NK. The Applicants state that the additional spectrum will enable USCC to offer innovative services in the Nebraska 3-Knox and Nebraska 5-Boone Cellular Market Areas (CMAs) and to improve and enhance its voice and data service offerings. The FCC said preliminary review of the application indicates that across these two CMAs, USCC-NK would hold, post transaction, up to 61 megahertz of spectrum below 1 GHz. Petitions to deny the application are due June 21; oppositions to such pleadings are July 1; And replies to oppositions are due July 11. All filings should refer to ULS File No. 0004707845. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell.
COMMENT CYCLE EXTENDED FOR SPECTRUM TASK FORCE’s REQUEST FOR INPUT ON DEVELOPING 2 GHz BAND: The FCC’s Spectrum Task Force has extended the comment and reply deadlines regarding its 2 GHz Range Public Notice seeking technical input on approaches to encourage the growth of terrestrial mobile broadband services in the 2 GHz spectrum range that is allocated for fixed and mobile use (BloostonLaw Telecom Update, May 25). Comments in this ET Docket No. 10-142, WT Docket Nos. 04-356, 07-195 proceeding are now due July 8, and replies are due July 22. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell.
FCC SETS FIRST NATIONWIDE EAS TEST FOR NOVEMBER 9: The FCC has announced that the first nationwide test of the Emergency Alert System (EAS) is scheduled for November 9, at 2 PM EST. Last February 2, the FCC amended its Part 11 rules governing the EAS to provide for national testing of the EAS and the collection of data from such tests. The purpose of the test is to assess the reliability and effectiveness of the EAS as a mechanism to alert the public of emergencies. Although EAS participants currently participate in state-level monthly tests and local-level weekly tests, there has never been a nationwide test of the system. The Commission, along with the Federal Emergency Management Agency (FEMA), will use the results of this test to assess what works within the EAS and what does not and working together with EAS stakeholders will make improvements to the system as appropriate. The Commission’s Public Safety and Homeland Security Bureau will continue to provide additional information concerning the first nationwide test of the EAS, through the release of further public notices. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell.
FCC REQUIRES NONDOMINANT CARRIERS TO USE ELECTRONIC FILING FOR TARIFFS: As part of its Data Innovation Initiative and an agency-wide transition from paper to electronic filing, the FCC has expanded electronic filing of information about rates, terms, and conditions of telecommunications services. The FCC said this reform will improve public access to information and reduce burdens on carriers. Although dominant local carriers have filed their tariffs electronically since 1998, competitive local providers and other non-dominant carriers still submit hundreds of filings annually on paper and computer diskette. Enabling use of the FCC’s existing Electronic Tariff Filing System (ETFS) for all tariff filings will create a uniform system of online access that not only increases transparency for consumers and reduces burdens on industry, but also eases tariff enforcement and facilitates tracking of industry trends, the Commission said. Under the new electronic filing rules, non-dominant carriers will be required to make their initial electronic filings no more than 60 days after the rules become effective. The WC Docket No. 10-141 rules become effective 120 days after publication in the Federal Register, or after approval by the Office of Management and Budget, whichever date is later. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC EXTENDS PLATINUMTEL’s FORBEARANCE REQUEST UNTIL SEPTEMBER 30: The FCC has extended by 90 days—until September 30—the date by which the petition requesting forbearance filed by PlatinumTel Communications, LLC, shall be deemed granted in the absence of a Commission decision that the petition fails to meet the standards for forbearance under section 10(a) of the Communications Act. PlatinumTel’s petition requests that the Commission forbear from applying the requirements of section 214(e)(1)(A) of the Act, to the extent that those provisions require a common carrier designated as an eligible telecommunications carrier (ETC) to offer services supported by the federal universal service support mechanisms using either its own facilities or a combination of its own facilities and another carrier’s services. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC FINDS NORTHERN VALLEY’s TARIFF UNLAWFUL IN COMPLAINT PROCEEDING: The FCC has resolved a formal complaint proceeding that represents the latest chapter in the ongoing dispute between interexchange carriers (IXCs) and local exchange carriers (LECs) involving “access stimulation.” Qwest Communications had filed a complaint against Northern Valley Communications, LLC, alleging that Northern Valley’s interstate access service tariff violates section 201(b) of the Act and requesting that the Commission order Northern Valley to withdraw the tariff. The FCC found that Northern Valley’s tariff is unlawful. As Qwest argues, and Northern Valley does not dispute, the FCC said, Northern Valley’s tariff purports to allow Northern Valley to impose tariffed switched access charges on IXCs for calls placed or received by individuals or entities to whom Northern Valley offers free services. The tariff therefore violates Commission Rule 61.26 as clarified by the CLEC Access Charge Reform Reconsideration Order, and accordingly also violates section 201(b) of the Act. Thus, the FCC granted Qwest’s complaint and directed Northern Valley to revise its tariff. Northern Valley’s tariff previously defined “End User” to mean “any Customer of an Interstate or Foreign Telecommunications Service that is not a carrier.” Northern Valley revised that definition by adding the statement that “an End User need not purchase any service provided by [Northern Valley].” In its Complaint, Qwest argued that the Tariff is unlawful because this new language purports to allow Northern Valley to impose tariffed charges on Qwest for terminating calls to entities to whom Northern Valley offers free service. The FCC agreed. It also determined that the Tariff is unlawful, because the Commission’s access service rules and orders establish that a CLEC may tariff access charges only if those charges are for transporting calls to or from an individual or entity to whom the CLEC offers service for a fee. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
APPLICATIONS FILED TO TRANSFER CONTROL OF GLOBAL CROSSING TO LEVEL 3: Global Crossing Limited (GCL) and Level 3 Communications, Inc., have filed a series of applications seeking approval for the transfer of control of GCL and its subsidiaries. Specifically, Applicants seek approval to transfer control of domestic and international section 214 authorizations, cable landing licenses, and satellite earth station licenses held by various subsidiaries of GCL to Level 3. Level 3 also filed a petition requesting a declaratory ruling that indirect foreign ownership of certain common carrier wireless licenses held by two of its subsidiaries is in the public interest. Comments or petitions to deny are due July 11; oppositions are due July 21; and replies are due July 28. All filings should refer to DA 11-1019 and IB Docket No. 11-78, as well as the specific file numbers of the individual applications or other matters to which the filings pertain. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC APPROVES USAC’s FY 2011 E-RATE PIA PROCEDURES: The FCC has notified the Universal Service Administrative Company (USAC) that it has approved the Schools and Libraries Funding Year (FY) 2011 Program Integrity Assurance (PIA) FCC Form 471 Review Procedures, dated January 18, 2011. The approval is subject to the substantive edits as provided in a confidential attachment, which is being withheld pursuant to Exemptions 5 and 7(E) of the Freedom of Information Act. In addition, the FCC said USAC should provide, on an ongoing basis, the Wireline Competition Bureau with USAC’s proposed PIA procedures 30 days prior to the opening of the filing window, beginning with the procedures for Funding Year 2012. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
COMMERCE REPORT PROPOSES CYBERSECURITY ENHANCEMENTS: The U.S. Department of Commerce has released a report that proposes voluntary codes of conduct to strengthen the cybersecurity of companies that increasingly rely on the Internet to do business, but are not part of the critical infrastructure sector. The report, Cybersecurity, Innovation and the Internet Economy, focuses on the “Internet and Information Innovation Sector” (I3S) – these are businesses that range from small and medium enterprises and bricks-and-mortar firms with online services, to social networking sites and Internet-only business, to cloud computing firms that are increasingly subject to cyber attacks. The report addresses the growing economic importance of strengthening cybersecurity protection and preserving consumer trust in the Internet. Global online transactions are currently estimated by industry analysts at $10 trillion annually. As Internet business grows, so has the threat of cybersecurity attacks. The number of Internet malware threats was estimated to have doubled between January 2009 and December 2010. In 2010, an estimated 55,000 new viruses, worms, spyware and other threats were bombarding the Internet daily. The report, developed by the Department’s Internet Policy Task Force, makes a number of specific recommendations for reducing I3S vulnerabilities:
- Establish nationally recognized but voluntary codes of conduct to minimize cybersecurity vulnerabilities. For example, the report recommends that businesses employ present-day best practices, such as automated security, to combat cybersecurity threats and that they implement the Domain Name System Security (DNSSEC) protocol extensions on the domains that host key Web sites. DNSSEC provides a way to ensure that users are validly delivered to the web addresses they request and are not hijacked.
- Developing incentives to combat cybersecurity threats. The report also recommends exploring and identifying incentives that could include reducing “cyber insurance” premiums for companies that adopt best practices and openly share details about cyber attacks for the benefit of other businesses.
- Improve public understanding of cybersecurity vulnerabilities through education and research. Programs like the National Initiative for Cybersecurity Education should target awareness and training to the I3S and develop methods for cost/benefit analyses for cybersecurity expenditures.
- Enhance international collaboration on cybersecurity best practices to support expanded global markets for U.S. products. This should include enhanced sharing of research and development goals, standards, and policies that support innovation and economic growth.
In order to gather additional stakeholder input and refine the report’s preliminary recommendations, the Commerce Department will seek public comment and publish questions from the report in a Federal Register notice later this week. The Commerce Department’s Internet Policy Task Force will also continue to work with others in government to engage the domestic and global privacy community, and will consider publishing a refined set of policy recommendations in the future. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
BloostonLaw Telecom Update
Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP
[Portions reproduced here with the firm's permission.]
| Vol. 14, No. 25|| June 22, 2011 |
FCC Sets Tentative
Agenda For July 12
The FCC has released its tentative agenda for its July 12 open meeting. The following items are scheduled for consideration:
- Low Power FM and FM Translator Stations Third Further Notice of Proposed Rulemaking: A Notice of Proposed Rule Making seeking comment on the impact of the Local Community Radio Act on the future licensing of low power FM and FM translator stations.
- Cramming Notice of Proposed Rulemaking: A Notice of Proposed Rulemaking designed to empower consumers to prevent and detect unauthorized telephone bill charges (“mystery fees” or “cramming”) by improving the disclosure of third-party charges on wireline telephone bills.
- E911 Location Accuracy Third Report and Order, Second Further Notice of Proposed Rulemaking, and Notice of Proposed Rulemaking: A Report and Order enabling a more effective emergency response system by ensuring that 911 call centers continue to receive precise wireless E911 location information, and a Second Further Notice of Proposed Rulemaking and a Notice of Proposed Rulemaking seeking to improve E911 location accuracy and reliability for existing and new voice communications technologies, including Voice over Internet Protocol (VoIP).
- BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
INSIDE THIS ISSUE
- FCC adopts Lifeline, Rural Health Care reforms.
- FCC proposes multi-million dollar fines for “cramming.”
- LightSquared proposes GPS fix
- Cable, electric interests challenge FCC’s new pole attachment rules.
- FCC extends comment dates for signal booster NPRM.
- House restores $6 million to RUS broadband loan program.
FCC Adopts Lifeline, Rural Health Care Reforms
After determining that some subscribers have Lifeline-subsidized phone service from multiple carriers, the FCC has clarified its rules to expressly bar more than one benefit per Lifeline subscriber, and will notify consumers with multiple subsidies that they are only allowed to have one. The FCC believes this action will save “millions of dollars per year” in the fight against waste, fraud, and abuse, and help reform and modernize the Lifeline/Link-Up programs (BloostonLaw Telecom Update, March 9).
Separately, the Commission adopted an interim rule permitting health care providers that are located in a “rural area” under the definition used by the Commission prior to July 1, 2005, and that have received a funding commitment from the rural health care program prior to July 1, 2005, to continue to be treated as if they are located in “rural” areas for purposes of determining eligibility for all universal service rural health care programs.
Additionally, the FCC adopted a Notice of Proposed Rulemaking (NPRM), seeking comment on whether to make these “grandfathered” providers permanently eligible for discounted services under the rural health care program. Grandfathered providers do not currently qualify as “rural,” but play a key role in delivering health care services to surrounding regions that do qualify as “rural” today. Thus, the FCC said it took these actions to ensure that health care providers located in rural areas can continue to benefit from connecting with grandfathered providers, and thereby provide health care to patients in rural areas.
Lifeline Program. Under the Commission’s Report & Order:
(1) The Universal Service Administrative Company (USAC) must notify consumers receiving multiple Lifeline benefits that they are allowed to have only one Lifeline-subsidized phone service;
(2) Consumers have 30 days to choose which subsidized phone service to keep;
(3) The company or companies not chosen by the consumer must de-enroll the consumer from Lifeline within five days after notification by USAC of the consumer’s choice; and
(4) At the end of the process, consumers will have no more than one Lifeline phone service.
In a separate statement, Commissioner Mignon Clyburn, who supported the item, said: “There is no doubt that the Lifeline program is ripe for reform and modernization. It is important that we not take too long to address the issues teed up in our outstanding Notice of Proposed Rulemaking. That record is now complete, and we should act promptly so we can avoid having to take additional stop gap measures to fix the current program rules. Moreover, like the high-cost program, Lifeline needs to be modernized to reflect the current service needs of low-income consumers. We know that one-third of Americans have not adopted broadband, and affordability is the most significant reason why consumers have not subscribed. For low-income consumers, the cost of service and equipment is especially acute, as adoption for this segment of the population lags significantly. While private sector broadband adoption programs are promising, this Commission has a role to play in ensuring that low-income consumers can be connected. I believe the proposals for reforming the Lifeline program to support broadband service should be fully considered sooner rather than later, so that we may best meet the broadband needs of all American consumers.”
Earlier, Rep. Dennis Kucinich (D-Ohio) sent a letter to FCC Chairman Julius Genachowski requesting that access to Lifeline and Link-Up be protected for all Americans regardless of income. Kucinich urged the FCC not to make “any reduction in, or impose any limitations on” the programs that provide vulnerable citizens access to phone services in emergency situations.
Implemented in 1984, the programs have over the past few years, due to the economic crisis, seen an increase in demand and enrollees. As a result, the cost of the program has increased.
“This is not a bad result — it is a good result. More people who need the benefits of the program are taking advantage of them. And the entire cost of the programs is paid by fees charged to the companies that provide wireless service,” wrote Kucinich. “We should not be talking about putting a ‘cap’ on the cost of the programs,” he said. “We should be talking about how we can increase participation so that everyone who qualifies for the benefits enjoys those benefits.”
Broadband Affordability Act: In a related matter, Rep. Doris Matsui (D-Calif.) has introduced HR 2163, the Broadband Affordability Act “to promote the adoption of broadband service by all people of the United States while recognizing that the price of broadband service is one of the barriers to adoption for low income households.” Under the bill, the broadband program would be similar in structure to the Lifeline program for basic telephone service. The bill also directs the Commission to adopt regulations to prevent duplicative broadband lifeline subsidies being awarded for an individual eligible household. Due to the interstate nature of broadband service, the Commission would determine, in consultation with the Federal-State Joint Board, whether State matching funds must be provided as a condition of eligibility for low-income households within such State. Further, in calculating the amount of support to be provided to each low-income household, the FCC shall routinely study the prevailing market price for broadband service and the prevailing speed of broadband service adopted by households, according to the bill.
Rural Health Care Order: Under the FCC’s order, absent further extension of the grandfathering period or a change in the rules, grandfathered providers will become ineligible for discounted services after June 30, 2011. Currently, there are approximately 235 grandfathered providers. These providers, in the aggregate, received less than $1.4 million in discounted services from the universal service fund annually between 1998 and 2009 (or less than $6,000, on average, per provider per year).
NPRM: The FCC proposes to permanently grandfather the approximately 235 health care providers that are located in a “rural area” as defined by the Commission prior to July 1, 2005, and received a funding commitment from the rural health care program prior to July 1, 2005. Under the proposed rule, these health care providers would continue to be treated as if they are located in “rural” areas for the purposes of determining eligibility for all universal service rural health care programs.
The FCC seeks comment on petitioners’ and commenters’ assertions that permanently grandfathering these providers will promote the goal of advancing access to broadband connectivity for health care purposes. The FCC believes that discontinuance of discounted services would jeopardize the ability of grandfathered providers to continue offering essential health care services to rural areas. The FCC said that grandfathered health care providers are not located in large urbanized areas, and the record indicates that grandfathered providers provide valuable services to areas identified as experiencing health care shortages. In some states, grandfathered health care providers are hub hospitals that play a central role in connecting rural providers and patients to a statewide or regional telehealth network. The FCC believes that a permanent grandfather is consistent with its broad discretion to define the term “rural.”
Comments in this WC Docket No. 02-60 proceeding will be due 30 days after publication in the Federal Register, and replies will be due 15 days thereafter.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC Proposes Multi-Million Dollar Fines For “Cramming”
The FCC has proposed a total of $11.7 million in penalties against four companies that appear to have unlawfully billed tens of thousands of consumers for unauthorized charges — a practice known as “cramming.” The proposed penalties were issued against Main Street Telephone ($4,200,000); VoiceNet Telephone, LLC ($3,000,000); Cheap2Dial Telephone, LLC ($3,000,000); and Norristown Telephone, LLC ($1,500,000).
“Cramming” occurs when a company places charges on a consumer’s phone bill without authorization. These mystery fees typically range from $1.99 to as much as $19.99 per month. They are often buried in multipage phone bills and have misleading labels that make it difficult for a consumer to detect them. The cramming party can be the customer’s own carrier or an unaffiliated third party. The charges can be from carriers for additional phone services, voice mail and similar services, but they may also be from non-carriers for unrelated products and services such as chat lines, diet plans, and cosmetics. The FCC has found that cramming is an “unjust and unreasonable” practice that violates section 201(b) of the Communications Act.
As a result, the FCC has issued Notices of Apparent Liability (NALs) to each of the four companies for apparently charging thousands of customers for “dial-around” long distance service that they had not ordered. The Enforcement Bureau’s investigation revealed that only a tiny fraction of the affected consumers (about one-tenth of one percent) actually used the services for which they were charged. Nevertheless, the apparently unlawful billing continued for months and sometimes years.
The FCC found that the four carriers involved had apparently engaged in constructive fraudulent activity as part of a plan to place charges on consumers’ phone bills for services that the consumers neither requested nor authorized. The Commission found the violations to be particularly egregious because of the number of consumers affected, and because the companies either knew or reasonably should have known that the consumers did not request, authorize, or use the services, based on the numerous consumer inquiries and complaints they received. Some of the companies were apparently billing thousands of consumers, the vast majority of whom had never heard of the companies, were unfamiliar with the services they offered, and never used the services for which they were billed.
In addition, the FCC issued an “Enforcement Advisory,” reminding carriers that they should be mindful of the Commission’s Truth-in-Billing Rules, which require that the billing carrier use clear, non-misleading, plain language in describing services for which a consumer is charged. The descriptions of charges must be specific enough so that customers can assess whether they were billed correctly for services they requested and received. The carrier also must identify the service provider associated with each charge and must display on the bill a toll-free number that a consumer can call to ask about or dispute any charge on the bill.
The FCC noted that it has jurisdiction under the Communications Act to police the practices of carriers, and the FTC has jurisdiction under the Federal Trade Commission Act to address cramming by non-carriers. The FCC said it coordinates with the FTC to ensure that all entities involved in third-party billing only charge for legitimate services that were authorized by consumers.
The FCC said it encourages businesses to review section 201(b) of the Act, as well as agency orders that relate to the placement of charges on phone bills. The Commission said businesses should consult their own legal counsel with any questions pertaining to their particular operations. BloostonLaw is available to assist clients in this matter.
The FCC said it expects its Advisory will lead to greater compliance with the Act in the charging and billing for telecommunications services. At the same time, however, the FCC emphasized that section 201(b) provides important consumer protections and that it intends to continue to strictly enforce it.
The Commission also intends to consider a Notice of Proposed Rulemaking (NPRM) to improve the disclosure of third-party charges on wireline telephone bills at its July 12 open meeting (see story on Page 1).
Senate Commerce Committee Chairman Jay Rockefeller (D-W.Va.) said he was pleased to hear that the FCC is making progress in the fight against mystery fees on phone bills. “However,” he added, “I don’t believe it will be enough to stop the problem. For the past year, my Committee has examined cramming and third-party billing on telephone bills. What we’ve found is troubling. We know that the telephone companies’ voluntary guidelines have failed to stop mystery fees. We know that additional disclosure requirements on telephone bills haven’t fixed the problem. As I announced last month, the Committee will hold a hearing and release a report on this issue shortly so that we can work to end this problem once and for all.”
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
LightSquared Announces Plan to Avoid Interference to GPS, Deal with Sprint PCS
In the face of significant opposition, LightSquared Subsidiary LLC has announced that it will move its operations to a portion of the satellite band spectrum that is not immediately adjacent to GPS operations, to implement a more meaningful avoidance of interference to GPS, according to Fierce Wireless and other sources.
At the same time, LightSquared announced that it has reached a network sharing agreement with Sprint PCS. Fierce Wireless reports that a letter from LightSquared backer Harbinger Capital partners indicates LightSquared and Sprint will jointly develop, deploy and operate LightSquared's LTE network, and Sprint will become a significant customer of the network.
Representatives of numerous industries (including the GPS Industry Council, the Alarm Industry Communications Committee and John Deere, among others) have opposed the FCC’s grant of authority for LightSquared to operate a terrestrial wireless system in the L-Band, a portion of the spectrum in which GPS satellites also operate. LightSquared originally planned to deploy its system (with 40,000 transmitters) directly adjacent to GPS bands. The company claimed it has developed filters to stop its signal from bleeding into GPS service, but many major GPS stakeholders, including the Defense Department, fear that widespread GPS dead zones are inevitable if LightSquared’s network goes live. This concern was only bolstered by a June 1 article in the Wall Street Journal indicating that interference is being encountered up to 22 miles from LightSquared’s New Mexico test operation, and the GPS interference problem may be contributing to other issues plaguing LightSquared. The proposal of LightSquared to move its operation to a portion of its spectrum that is further removed from the GPS spectrum may help to address the interference concerns, clearing the path for LightSquared to become a more significant competitive force in the marketplace. Its deal with Sprint will further LightSquared’s position as both a source of wholesale service and a competitive threat to smaller wireless carriers.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino.
Cable, Electric Interests Challenge FCC’s New Pole Attachment Regulations
The National Cable & Telecommunications Association (NCTA), COMPTEL, and tw telecom inc. have filed a petition for reconsideration or clarification of one aspect of the FCC’s pole attachment rules (BloostonLaw Telecom Update, April 13). Specifically, the petitioners ask that the rules be clarified or amended by specifying the cost allocator to be applied based upon the number of attaching entities. The Coalition for Concerned Utilities also sought reconsideration of the rules (see below). Oppositions to both WC Docket No. 07-245 petitions are due July 5, and replies are due July 15.
NCTA, COMPTEL, and tw telecom said they commended the Commission for its pro-consumer action on pole attachments, which represent one of the key building blocks for promoting the continued deployment of broadband services across the nation. In particular, they said, the Commission’s expressed intent of providing rate parity between telecommunications providers and cable operators by amending the telecommunications formula to produce rates comparable to the cable formula—thereby removing the threat of potential rate increases associated with new services and reducing the incentives for pole owners to dispute the legal classification of communications services—will provide much-needed regulatory certainty that will permit broadband providers to extend their networks to unserved communities while fairly compensating pole owners.
The petitioners said that the Wireline Competition Bureau (WCB), in its order rejecting a request to stay the new pole attachment rules, stated that there are significant public interest benefits of the Commission’s action to create rate parity—i.e., that “the Commission recognized the effects the disparate telecom and cable rates had on cable operators’ incentives to use their existing networks to provide new, advanced services, some of which potentially could be classified as telecommunications services.”
The WCB had noted that “reducing the telecom rate to be lower and closer to uniform with the cable rate ‘will better enable providers to compete on a level playing field, will eliminate distortions in end-user choices between technologies, and lead to provider behavior being driven more by underlying economic costs than arbitrary price differentials.’”
Thus, the petitioners asserted: “As the Commission explained in the 2011 Pole Attachment Order, modifying the telecommunications formula to produce rates comparable to cable pole attachment rates is consistent with statutory requirements, and represents sound policy because the cable rate has been found to provide just compensation to pole owners, is widely used by state public service commissions for pole rent calculations, and has been endorsed by the National Association of State Utility Consumer Advocates (NASUCA), which represents the interests of utility ratepayers. Allocating costs within the telecommunications formula to produce rates that are comparable to those produced through the cable formula also is appropriate because the record demonstrates that the previous method of determining ‘cost’ under section 224(e) significantly overstates the true economic carrying costs for providing space on a pole. If capital costs are included in the calculation of that cost, and the capital cost and operating expense inputs are measured in accordance with accepted principles of cost causation and cost allocation, a more accurate measure of costs for providing space on a pole produces a rate that is equal to or less than the cable rate.”
The petitioners said, however, there is one aspect of the Commission’s rules that may result in unintended departures from the Commission’s stated goal of producing telecom rates that “generally will recover the same portion of pole costs as the current cable rate.” Specifically, the petitioners said that the Commission’s newly adopted section 1.1409(e)(2) provides that the telecommunications pole attachment rate should be the higher of the “lower bound” rate (with capital costs excluded) and a “just and reasonable telecom rate,” with both capital and operating costs included but adjusted so by establishing a rate identical or similar to the Commission’s cable rate formula down to approximate the cable rate.
The petitioners stated that in the 2011 Pole Attachment Order, the new formula adjusts the cost basis to 66 percent in urban service areas and to 44 percent in rural service areas. When paired with the presumptions that there are five entities attached on urban poles and three entities on rural poles,18 the illustrative calculation almost exactly equals the cable rate, and ensures that all cable and telecom attaching entities will contribute roughly 7.4 percent of the costs of the pole to the pole owner, the petitioners said.
The petitioners asserted that the Commission wrote the illustration into rule, essentially addressing only the cases of the presumed three and five attaching entities. However, the presumptive number of attachers can be, and often is, rebutted by the pole owner, the petitioners said. They added that Information submitted in the record suggests that there may be fewer, and in the case of urban areas, significantly fewer attaching entities than are accounted for by the Commission’s presumptions. In that case, the revised telecom rate formula would not yield rates that approximate the cable rate. For example, the petitioners said, using 2.6 as the number of attaching entities, as one utility recently has done in calculating its telecom pole attachment rates, the rate formula adopted by the Commission would result in a telecom rate that is 70 percent higher than the cable rate for most poles.
Without clarification or revision, the petitioners asserted, “the rule would leave in place the very rate increases, uncertainty and incentives for dispute that the Commission intended to remove. To achieve the Commission’s goal of providing pole attachment rates that are as close to uniform as possible, and to ensure that all attachers contribute similar costs to pole owners, the telecom rate formula should be expanded to include not only instances where there are three and five attaching entities, but should also provide the corresponding cost adjustments scaled to other entity counts.”
Specifically, NCTA, COMPTEL, and tw telecom requested that the rules be clarified or amended by specifying the cost allocator to be applied based upon the number of attaching entities. The proposed language scales the cost allocator from 0.661 in service areas where the number of attaching entities is five, down to 0.309 in service areas where the number of attaching entities is two, the petitioners said. They added that this approach increases the certainty that pole rates will be as close as possible to the cable rate, meets the Commission’s intended purposes, and makes the calculation more readily administrable by eliminating the need to distinguish urbanized and non-urbanized areas.
In the alternative, the petitioners said, the Commission could adopt the proposal in the 2010 Pole Attachment FNPRM to establish the maximum just and reasonable rate as the higher of the rate yielded by the cable rate pursuant to section 1.1409(e)(1) or the “lower bound” telecom rate obtained by excluding capital costs from the definition of “cost of providing space” in the existing telecom rate formula of section 1.1409(e)(2).25 The record demonstrates that a rule setting the telecom rate based on the higher of the two calculations satisfies the “just and reasonable” requirements of section 224(b), while also implementing the language of section 224(e).
Coalition of Concerned Utilities’ Petition
The Coalition of Concerned Utilities also filed a petition for reconsideration of the FCC’s April 7 Pole Attachment Order. The Coalition members serve more than 17.5 million electric customers in 10 states and the District of Columbia and owns, in whole or in part, approximately 8.1 million electric distribution poles. The Coalition urged the Commission to reconsider its Order because “many utilities will be unable as a practical matter to comply with the Commission’s new pole attachment requirements without serious adverse impact to the safety and reliability of electric service provided to the public. Numerous complaints likely will be filed with the Commission, the Coalition said. Specifically, the Coalition argued the following:
Make-Ready Deadlines. According to the Coalition, the new and unprecedented make-ready deadlines are unworkable and unwise and should be fundamentally reconsidered by the Commission or at a minimum revised to better recognize utility operational constraints. To bring the make-ready deadlines more into line with the reality of electric utility operations, the Coalition proposes that the lower limit on the number of attachment requests subject to the deadlines be reduced from 300 to 100 poles, and the upper limit reduced from 3,000 to 500 poles. Both limits should apply to attachment requests made by all attaching entities per month, not just by a single attaching entity, the Coalition said. It added that the deadlines should not apply to the extent that make-ready work would require any attacher that is not a cable television system or telecommunications service provider (e.g., municipality) to move its facilities, or to pole re-placements or the installation of new poles necessary to accommodate additional attachments. The Commission should expand the grounds to “stop the clock” and toll the make-ready deadlines (e.g., seasonal storms, government permits, private property easements, preexisting safety violations) and should delay the implementation of the deadlines established in the April 7 Order by one hundred and eighty (180) days and thereafter provide for a graduated phase-in of the make-ready deadlines, the Coalition said.
Safety Issues. The Coalition said the Commission should allow utility pole owners to impose penalties for safety violations in the amount of $200 per violation, consistent with Oregon’s rules. Utilities should be free to restrict future use of boxing and extension arms by imposing a policy applicable to all attaching entities going forward, regardless of whether the utility has chosen to do so in the past, the Coalition said. It added that utilities also should be entitled to disallow any wireless pole top attachment by a communications attacher to the extent a utility disallows any wireless antenna of any type, including its own, to be installed on pole tops.
Attacher Rearrangement Issues. The Coalition said that a number of related decisions in the April 7 Order should be reconsidered in light of the real world of electric utility operations (e.g., use of electronic notification systems, reimbursement for costs incurred by pole owners in moving attachments, limitations on liability for mandatory relocation of existing attachments).
Joint Pole Owner Issues. Both owners of a jointly-owned pole — not just one — should be permitted to require separate permitting and payment processes, the Coalition said.
Refunds. To avoid an unexpected and unjust result, refunds should not be allowed prior to the effective date of the Commission’s April 7 Order, the Coalition said. All of the Coalition’s members, like other electric utilities across the country, are responsible for the safe and efficient delivery of electric services to their consumers. None is in a position to sacrifice electric system safety and reliability as a cost of making its distribution poles available on an expedited basis for use by communications attachers, the Coalition said.
Copper wire theft
In an unrelated matter, Pacific Gas and Electric (PG&E) has revealed that a thief or thieves stole an entire transformer from a power pole in Antioch, Calif., according to CBS. The theft was in addition to the knocking down of an estimated 300 power poles, stripping them of their lucrative copper wiring. There is copper wiring in the transformer, as well. PG&E noted that such a theft is risky “because it’s energized electrical wiring that’s being taken,” CBS said. In fact, people have been electrocuted or otherwise seriously injured attempting to lift the wiring. It will cost PG&E tens of thousands of dollars to replace the downed power poles and stolen transformer. The price tag to replace just one power pole and its missing transformer: $12,000.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC EXTENDS COMMENT DATES FOR SIGNAL BOOSTER NPRM: The FCC has extended the comment deadlines for its Notice of Proposed Rulemaking (NPRM) proposing rules to develop and facilitate well-designed signal boosters (BloostonLaw Telecom Update, April 13). Comments in this WT Docket No. 10-4 proceeding are now due July 25, and replies are due August 24. On the one hand, the proposed signal booster rules could make it easier to improve signal coverage in rural communities and other areas with marginal coverage. On the other hand, the FCC’s proposed rules could potentially have an adverse impact on client operations, particularly if the consumer use of signal boosters causes harmful interference to broad band communications (e.g., SMR, Cellular, Broadband PCS, 700 MHz and AWS Services) and public safety operations. As the FCC has recognized, fixed and mobile signal booster applications could be used in both rural and suburban/urbanized areas, where signal coverage and/or building penetration is weak in order to improve signal coverage. BloostonLaw has drafted comments to urge the Commission to approve only carrier specific signal boosters due to the inherent interference issues that are created by signal boosters that are capable of transmitting over all CMRS frequencies (rather than just the intended carrier’s spectrum). Additionally, we have recommended that signal booster equipment be regulated in the same manner as handsets and air-cards so that carriers have (a) sufficient control over the deployment of signal booster devices and (b) the ability to disable a signal booster if it malfunctions and causes harmful interference to wireless carriers or public safety entities. It is also important to note, especially with mobile signal boosters, that E911 location technology can be adversely affected and that steps must be taken in order to ensure that public safety answering points (PSAPS) are able to locate callers in a timely manner. Finally, the Comments urge the FCC not to grandfather any existing non-compliant signal booster installations and to undertake a public education program so that these non-compliant installations can be eliminated. If you wish to participate in the comments, please contact the firm. BloostonLaw contacts: Hal Mordkofsky and Richard Rubino.
FCC SEEKS COMMENT ON IMPROVING COLLISION AVOIDANCE RADAR FOR CARS IN 76-77 GHz BANDS: The FCC has set comment dates on its Notice of Proposed Rulemaking (NPRM) proposing to amend its rules to enable enhanced vehicular radar technologies in the 76-77 GHz band to improve collision avoidance and driver safety. Vehicular radars can determine the exact distance and relative speed of objects in front of, beside, or behind a car to improve the driver's objects under bad visibility conditions or objects that are in blind spots. These modifications to the rules will provide more efficient use of spectrum, and enable the automotive and fixed radar application industries to develop enhanced safety measures for drivers and the general public. The Commission took this action in response to petitions for rulemaking filed by Toyota Motor Corporation and Era Systems Corporation. Comments in this ET Docket Nos. 11-90 and 10-28 proceeding are due July 18, and replies are due August 1. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino.
NEW PROCEDURES FOR “UP FRONT” REGULATORY FEES TAKE EFFECT: The FCC’s procedures for wireless service applications that include “up front” regulatory fees took effect yesterday, June 21. Previously, when regulatory fees were required “up front” to cover the term of a license, both application fees and regulatory fees were included under a single fee payment type code as a single line item on FCC Form 159, Remittance Advice (Form 159). Effective June 21, application fees and regulatory fees will have separate fee payment type codes, respectively, and must be listed as separate line items on the Form 159. Parties that file applications for new authorizations or renew existing applications in wireless services where application fees and regulatory fees are collected at the time of the application filing are affected by these changes. Payments should continue to be made the same way. If a party chooses to make a payment by check, a single check is still required even though the application fees and regulatory fees are now listed as separate line items on the Form 159. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino.
FCC SETS COMMENT DATES ON WHETHER TO TERMINATE MANY “STALE” PROCEEDINGS: The FCC’s Consumer and Governmental Affairs Bureau (CGB) has set comment dates for its Public Notice, seeking comment on whether certain docketed Commission proceedings should be terminated as dormant (BloostonLaw Telecom Update, June 8). The Commission's procedural and organizational rules, which were recently revised to streamline and improve the agency's docket management practices, delegate authority to the Chief, CGB to periodically review all open dockets and, in consultation with the responsible Bureaus or Offices, to identify those dockets that appear to be candidates for termination. The Public Notice lists nearly 100 pages of proceedings that could be subject to termination. The Commission stated that this list may include dockets in which no further action is required or contemplated as well as those in which no pleadings or other documents have been filed for several years, but it specified that proceedings in which petitions addressing the merits are pending should not be terminated, absent the parties’ consent. The termination of a dormant proceeding also includes dismissal as moot of any pending petition, motion, or other request for relief that is procedural in nature or otherwise does not address the merits of the proceeding. Comments in this CG Docket No. 11-99 are due July 20, and replies are due August 4. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
FCC SETS COMMENT CYCLE FOR FNPRM PROPOSING CHANGES TO EAS SYSTEM: The FCC has established a comment cycle for its Third Further Notice of Proposed Rulemaking (FNPRM) seeking comment on proposed changes to its rules governing the Emergency Alert System (EAS). The FNPRM includes proposals to codify the obligation to process alert messages formatted in the Common Alerting Protocol (CAP) and to streamline and clarify these rules generally to enhance their effectiveness. Comments in this EB Docket No. 04-296 proceeding are due July 20, and replies are due August 4. The Third FNPRM seeks comment on a wide range of tentative conclusions and proposed revisions to the Part 11 rules that would codify the CAP-related mandates adopted in the Second Report and Order, and modernize and streamline the Part 11 rules by eliminating outdated technical and procedural requirements. The FCC tentatively concludes that, for the time being, the existing legacy EAS, including utilization of the EAS Protocol, will be maintained. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
HOUSE RESTORES $6 MILLION TO RUS BROADBAND LOAN PROGRAM: The U.S. House of Representatives has partially reinstated the Rural Utilities Service (RUS) Broadband Loan Program in the Agriculture Appropriations bill, H.R. 2112. The House voted 221–198 in favor of an amendment that includes restoring $6 million to the program for Fiscal Year 2012. The National Telecommunications Cooperative Association (NTCA) was instrumental in helping to procure the amendment. House members Rep. Chris Gibson (R–N.Y.) and Rep. Bill Owen' (D–N.Y.) proposed the amendment. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC REMINDS VIDEO PROGRAMMING DISTRIBUTORS TO MAKE EMERGENCY INFO AVAILABLE TO PERSONS WITH DISABILITIES: In light of the flooding in the south, the tornadoes in various parts of the country, and the already active storm season, the FCC has issued a Public Notice to remind video programming distributors – including broadcasters, cable operators, satellite television services, and “any other distributor of video programming [for example, over fiber] for residential reception that delivers such programming directly to the home” – of their obligation to make emergency information accessible to persons with hearing and vision disabilities in accordance with section 79.2 of the Commission’s rules. Under section 79.2, emergency information encompasses “critical details” regarding the emergency and how to respond to the emergency. It also provides information for consumers about how to contact their video programming distributor (VPD) or the Commission regarding compliance with the rule. The FCC stressed that the need to comply with section 79.2 and make the critical details of emergency information accessible is not always limited to the immediate geographic areas affected by the emergency because, for example, information about the relocation of individuals outside that immediate geographic area also falls within the rule’s mandate. Accordingly, compliance with section 79.2 could include providing information to non-impacted areas sheltering individuals displaced by a large-scale disaster, such as that which occurred recently with the tornado devastation of Joplin, Missouri or in 2005 when Hurricane Katrina struck the south. In these cases, the need to comply with section 79.2 has extended to areas throughout the country where evacuees were temporarily relocated. In addition, the FCC noted that there are times when the airing of emergency information pertaining to a matter of national importance will also be of local concern, and therefore should be made accessible. BloostonLaw contact: Gerry Duffy.
REP. BENISHEK ASKS FCC TO RESOLVE “UNASSIGNED AREAS” ISSUE IN MICHIGAN: U.S. Rep. Dan Benishek (R-Mich.) has asked FCC Chairman Julius Genachowski to resolve issues pertaining to “unassigned areas” so that citizens there can receive telecommunications service. In his letter to the Chairman, Benishek said several residents of Michigan's First Congressional District have been waiting to receive telecommunication services for years. These people live in "unassigned" areas, meaning they are unable to access 911 services, basic telephone systems, and have been disenfranchised from participating in the digital economy, Benishek said. He noted that the reason for the delay appears to be rooted in the FCC's failure to resolve a docket that was initiated more than three years ago—CC Docket 96-45: In the Matter of Osirus Communications, Inc. Petition for Waivers of the Commission's Rules to Participate in NECA Pools and Tariffs and to Obtain Accelerated Universal Service Fund Support. The proceeding involves three companies that have requested to serve all, or part, of the unassigned areas, Benishek said. “Based on my office's research,” he said, “it appears that all of these companies are prepared to bring service to these homes and are waiting for the FCC's to assign an incumbent local exchange carrier (ILEC) to these areas.” Benishek asked that this proceeding “not be allowed to languish any longer, regardless of the company chosen. The households being denied access to even the most basic telephone services have waited long enough.” BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
LANDRIEU EXPRESSES CONCERNS ABOUT FCC’s USF/ICC REFORM PROPOSALS: Sen. Mary Landrieu (D-La.) has expressed concern that the FCC’s proposals for Universal Service Fund (USF) and intercarrier compensation (ICC) reform “may hamper both current and future investment in rural communities in Louisiana.” In a letter to FCC Chairman Julius Genachowski, Landrieu acknowledged the need for wireless and other advanced services in rural areas, and noted that “recent reform proposals at the FCC include new program restraints, benchmarks and formulas intended to make universal service more efficient and implement a new intercarrier compensation system.” She said that “any reforms must protect existing investments, provide predictable support systems for small rural carriers, and promote broadband adoption in rural areas.” BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
LOCATION PRIVACY BILLS INTRODUCED IN BOTH HOUSE & SENATE: The Location Privacy Protection Act, which would propose new restrictions on how government agencies and private firms can collect and implement user location data, has been introduced in Congress. Specifically, the bill would require companies to obtain express consent from smartphone and tablet users before sharing information with third parties. The bill was introduced by Sen. Al Franken (D-Minn.), chairman of the Judiciary Subcommittee on Privacy, Technology and the Law, and Sen. Richard Blumenthal (D-Conn.). A second bill, the Geolocation Privacy and Surveillance (GPS) Act, was introduced by Sen. Ron Wyden (D., Ore.) and Rep. Jason Chaffetz (R., Utah). This bill would require law enforcement agencies to get a warrant to track a citizen's location via mobile phone or special tracking device. There would be exceptions, such as emergency responders who could access such information, and parents, who would be allowed to track their kids’ devices. The bill also wouldn't apply to intelligence investigations like those covered by the Patriot Act. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
ESHOO INTRODUCES “NEXT GENERATION WIRELESS DISCLOSURE ACT”: Rep. Anna G. Eshoo (D-Calif.) has introduced the Next Generation Wireless Disclosure Act, which aims to ensure that consumers have complete and accurate information about the speed of 4G service before committing to a plan. The bill also helps consumers understand network reliability, coverage and pricing. Specifically, the legislation would provide consumers with the following information at the point of sale and in all billing materials: (1) guaranteed minimum data speed; (2) network reliability; (3) coverage area maps; (4) pricing; (5) technology used to provide 4G service; and (6) network conditions that can impact the speed of applications and services used on the network. The legislation also requires the FCC to evaluate the speed and price of 4G wireless data service provided by the top ten U.S. wireless carriers in order to provide consumers with access to a side-by-side comparison in their service area. The bill has been referred to the House Energy & Commerce Committee. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell.
FCC REMINDS STATES, TRS PROVIDERS TO FILE ANNUAL CONSUMER COMPLAINT LOG BY JULY 1: The FCC’s Consumer and Governmental Affairs Bureau (CGB) reminds states and providers of interstate telecommunications relay services (TRS) that they must submit their annual consumer complaint log summaries covering the 12-month period from June 1, 2010 to May 31, 2011, by Friday, July 1, 2011. To assist the Commission in monitoring the service quality of TRS providers, the Commission requires state TRS programs and interstate TRS providers to collect and maintain a log of consumer complaints that allege violations of the federal TRS mandatory minimum standards. State TRS programs are required to log all complaints made to the state agency, as well as those made to the state’s TRS provider. Both states and interstate TRS providers must file summaries of these complaint logs with the Commission annually. These summaries are intended to provide an early warning to the Commission of possible service quality issues. This information also allows the Commission to determine whether a state or interstate TRS provider has appropriately addressed consumer complaints, and to spot national trends that may lend themselves to coordinated solutions. Moreover, the information enables states to learn how other states are resolving complaints. Complaint log summaries should include information pertaining to complaints including the total number of interstate relay calls by type of TRS (i.e., traditional TRS, speech-to-speech (STS), captioned telephone service (CTS), Internet protocol (IP) CTS, IP Relay, video relay service (VRS)), the number of complaints alleging a violation of the federal TRS mandatory minimum standards, the date of the complaint, the nature of the complaint, the date of its resolution, and an explanation of the resolution. State Complaint Log Summary filings must reference CG Docket No. 03-123. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC POSTPONES 800 MHz REBANDING “TRUE-UP” DEADLINE TO DECEMBER 31: The FCC has issued an Order that (1) postpones the 800 MHz rebanding financial reconciliation “true-up” date from June 30 to December 31, and (2) requires the 800 MHz Transition Administrator (TA) to file a report by Nov 15, with its recommendation on whether the true-up date should occur on December 31, or be further postponed. The Commission established the true-up in the 800 MHz Report and Order to assess the total creditable rebanding costs incurred by Sprint Nextel for both 800 MHz rebanding and relocating of Broadcast Auxiliary Service (BAS) licensees in the 1.9 GHz band, and to compare these costs to the value of the 1.9 GHz spectrum that the Commission awarded to Sprint. If the true-up shows that the value of the 1.9 GHz spectrum exceeds Sprint’s combined 800 MHz and BAS relocation costs, Sprint must pay the difference in an “anti-windfall” payment to the U.S. Treasury. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell.
NORTEL POSTPONES PATENT AUCTION UNTIL JUNE 27: Bankrupt Nortel Networks has postponed its sale of its portfolio of patents, citing a "significant level of interest" from prospective buyers, according to FierceBroadbandWireless (FBW) and Telecoms.com. The company had planned to put its 6,000 patents up for auction June 20 but has delayed the auction until June 27.
Last week, according to FBW and Telecoms.com, the Department of Justice (DoJ) approved Google's proposed bid of $900 million for Nortel's patents, which includes Long Term Evolution (LTE) patents. DoJ concluded that Google's potential ownership of the portfolio would not cause major anticompetitive concerns. The approval comes as a handful of major technology and wireless companies—including Microsoft, HP, Motorola, and Nokia—filed complaints with the bankruptcy court overseeing the proceedings about the way the auction rules have been written, FBW reported. It added that Microsoft said it holds worldwide, perpetual, royalty-free access to Nortel's patents via a cross-licensing deal the companies signed in 2006. It argued that any prior agreements should be transferred to the new owner of the patents. Reports have indicated in recent months that Ericsson and Research In Motion may bid for the patents. RPX Corp., a patent-buying firm, has confirmed it is interested in the portfolio. 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.