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. 4|| January 26, 2011 |
Rockefeller Says Senate Commerce Will Focus on USF, Broadband
Senate Commerce Committee Chairman Jay Rockefeller (D-W.V.) has announced his panel’s priorities for the 112th Congress—a focus on jobs, economic security, and growth. He emphasized bolstering U.S. infrastructure through:
- Improving transportation in the highway, rail, pipeline, and maritime sectors;
- Making necessary investments in our nation’s aviation infrastructure and air service development; and
- Broadband deployment and Universal Service Fund reform.
While the list of priorities encompasses a broad range of topics, the following areas may be of interest to our clients:
- Enacting comprehensive cybersecurity legislation and ensuring the necessary public safety communications resources for our nation’s first responders.
- Continuing oversight of important federal agencies, such as the Federal Trade Commission, the Consumer Product Safety Commission, the Surface Transportation Board, and the Federal Communications Commission.
- Protecting consumer information and privacy on the Internet.
- Cracking down on consumer fraud, including online billing scams
- Boosting the accuracy and effectiveness of forensic science by employing the National Institute of Standards and Technology and National Science Foundation scientific and standards expertise.
BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
INSIDE THIS ISSUE
- Verizon asks D.C. Circuit to review FCC’s Net Neutrality Order.
- FCC adopts order, FNPRM for interoperable public safety broadband network.
- Comcast, DIRECTV, News Corp. seek ruling that “Liberty Order” does not authorize third-party subpoenas.
- FCC clarifies how to resolve duplicate Lifeline claims for ETCs.
- Proposal to ban “texting while walking”????
Verizon Asks D.C. Circuit To Review Net Neutrality Order
Appeal Is Based On “Modification”
Of Company’s Wireless Licenses
Verizon last week filed an appeal of the FCC’s new “Net Neutrality” rules with the U.S. Court of Appeals for the District of Columbia Circuit. (MetroPCS filed a similar appeal in the D.C. Circuit early this week). Generally, the Net Neutrality rules require all broadband providers to publicly disclose network management practices, restrict broadband providers from blocking Internet content and applications, and bar fixed broadband providers from engaging in unreasonable discrimination in transmitting lawful network traffic (BloostonLaw Telecom Update, December 22, 2010).
Interestingly, Verizon filed its appeal before the rules were published in the Federal Register. Also, Verizon did not challenge the new rules directly. Instead, it asserted in its appeal that the FCC’s Order changes the terms of its existing wireless licenses. In this way, Verizon could bypass the jurisdiction of a federal district court, and bring its complaint to the appellate court on procedural grounds. Moreover, Verizon would be taking its complaint to the D.C. Circuit, the same Court that had struck down the FCC’s efforts to exercise its authority to regulate broadband Internet access in Comcast v. FCC (BloostonLaw Telecom Update, April 7, 2010).
In its January 20 Notice of Appeal, Verizon stated that in its Net Neutrality Order, the FCC is responding to the D.C. Circuit’s Comcast Order “and [is] again attempt[ing] to justify its assertion of regulatory authority over broadband Internet access services.”
Verizon asserted that “this Court [the D.C. Circuit] possesses exclusive jurisdiction over Verizon’s challenge to the Order because Verizon ‘hold[s]’ wireless spectrum ‘license[s] which ha[ve] been modified. . . by the Commission.’ In the Order, the Commission expressly relied on its claimed authority to ‘change the license . . .terms,’ and ‘to impose new requirements on existing licenses beyond those that were in place at the time of grant,’ in order to mandate compliance with the new rules adopted therein, The Order thus ‘modified’ Verizon’s licenses and is subject to appeal under Section 402(b)(5) [of the Communications Act].”
Verizon said it seeks relief on the grounds that the Net Neutrality Order: (1) is in excess of the Commission’s statutory authority; (2) is arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act; (3) is contrary to constitutional right; and (4) is otherwise contrary to law. Accordingly, Verizon requests that the Court “hold unlawful, vacate, enjoin, and set aside the Order, and provide such additional relief as may be appropriate.”
Reaction: House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) and other GOP lawmakers on his committee, said they "welcome" Verizon's effort to block the FCC's "misguided attempt to regulate the Internet." The lawmakers have vowed to also try to block the FCC's Net Neutrality Order through legislation. According to a statement from Upton, Communications Subcommittee Chairman Greg Walden (R-Ore.), and Rep. Lee Terry (R-Neb.): "At stake is not just innovation and economic growth, although those concerns are vital. Equally important is putting a check on an FCC that is acting beyond the authority granted to it by Congress. Between our legislative efforts and this court action, we will put the FCC back on firmer ground."
Senate Commerce Committee Chairman Jay Rockefeller (D-W.V.) and House Energy and Commerce Committee Ranking Member Henry Waxman (D-Calif.) issued a very brief statement: “Verizon has the legal right to do this, but we are disappointed that they filed suit. We support the FCC’s efforts because they will protect consumers and provide companies with the certainty they need to make investments in our growing digital economy.“
Several public interest groups criticized the Verizon appeal, according to the National Journal. Harold Feld, legal director for Public Knowledge, noted that by filing the case with the D.C. federal appeals court, Verizon was "trying to be too cute in trying to pick not only the venue for the challenge to the rules, but also to pick the judges to hear it."
Free Press, which has criticized the FCC's net neutrality rules as not going far enough to protect the Internet's openness, said Verizon's appeal "demonstrates that even the most weak and watered-down rules aren't enough to appease giant phone companies."
BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
FCC Adopts Order, FNPRM For Interoperable Public Safety Broadband Network
Fate of 700 MHz D Block Not Yet Final
The FCC, at its January 25 open meeting, adopted a Third Report and Order and Fourth Further Notice of Proposed Rulemaking (FNPRM) to ensure that the public safety broadband network is interoperable nationwide. The rules adopted in the Order, and additional rules proposed in the FNPRM, are expected to support the buildout of robust, dedicated and secure mobile broadband networks that will enable public safety broadband users to share information, videos, photos and emails across departments and jurisdictions nationwide for day-to-day operations and during large-scale emergencies, according to the staff presentation at the meeting. However, it does not appear that the FCC has made a final decision concerning the disposition of the 700 MHz D Block, which is sought by the public safety and private sectors alike.
The Order and FNPRM require all 700 MHz public safety mobile broadband networks to use a common air interface, specifically Long Term Evolution (LTE), to support roaming and interoperable communications and seek comment on additional rules to enable nationwide interoperability. The new rules and proposed further rules will thus affect all of our clients that have won 700 MHz licenses at auction. The FCC’s actions build on the technical requirements that state and local 700 MHz broadband waiver recipients are already subject to in the early buildout of their regional public safety broadband networks.
The FNPRM seeks public comment on, among other things:
- The architectural vision of the network;
- The effectiveness of open standards;
- Interconnectivity between networks;
- Network robustness and resiliency;
- Security and encryption;
- Coverage and coverage reliability requirements;
- Roaming and priority access between public safety broadband networks; and
- Interference coordination and protection.
The deadlines for public comments and reply comments on the FNPRM are 45 days and 75 days, respectively, after publication in the Federal Register.
FCC Chairman Julius Genachowski said that “in addition to interoperability, a mobile broadband public safety network will also advance our Next Generation 911 goals. It will allow emergency responders to receive pictures, video or information that is sent via text to NG911 systems….While selecting a common technology platform is the exception and not the rule at the FCC, in order to ensure nationwide interoperability for public safety communications there’s widespread agreement that a common air interface is desirable and necessary to enable nationwide interoperability.”
Commissioner Michael Copps said: “By adopting a common technology platform, Long Term Evolution (LTE), we are hopeful that public safety organizations will be able to reap the benefits of the economies of scale and the continuing innovation in standards development resulting from ongoing private sector investment in the 700 MHz band. Better promoting the safety and protection of the American people today means, in large measure, realizing the potential of new and evolving technologies. We also propose further technical rules to support interoperability, public safety-to-public safety roaming, and use of the 700 MHz band by Federal government public safety entities.”
Commissioner Robert McDowell said: “While I support our decision to require use of the LTE standard given the presence of a unique set of circumstances, I appreciate that we are seeking further comment on how future technology platforms would fit into this paradigm. In addition, I am pleased that the Commission remains committed to relocating those narrowband voice incumbents presently operating in the broadband public safety allocation. Down the road, I hope that we will examine and analyze ideas for ensuring that the full 24 megahertz block may be used more flexibly to support a complement of broadband uses and accommodate the ongoing rapid innovation in the mobile broadband sector. After all, the Commission undertook the design of this spectrum band more than a decade ago. Much has changed since then.
I hope, therefore, that interested parties will continue to educate us on this important ‘big picture’ issue.
“In a perfect world, we would have already finalized an order setting forth auction and service rules for the D Block spectrum. Perhaps we would have already concluded an auction of this spectrum, and public safety entities would be in a position to elect to partner with these auction winners. I am eager to move to this step, which I urge that we undertake sooner rather than later.”
At our deadline, the text of the WT Docket No. 06-150 items had not been released.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell.
COMCAST, DIRECTV, NEWS CORP. SEEK RULING THAT “LIBERTY ORDER” DOES NOT AUTHORIZE THIRD-PARTY SUBPOENAS: On January 12, 2011, Comcast, DIRECTV, and News Corp. filed a joint petition requesting that the FCC issue a declaratory ruling regarding arbitration-related conditions of certain Commission merger orders. Petitioners asked the FCC to rule that (i) the Federal Arbitration Act (FAA) and state laws do not govern arbitrations brought pursuant to Commission merger orders, including the Liberty Order (i.e., the FCC’s order approving the Liberty Media-DirectTV merger); (ii) an arbitrator appointed under these merger orders has no jurisdiction or authority to compel third-party participation in the arbitration proceeding, through discovery, pre-hearing or hearing testimony, or otherwise; and (iii) the arbitration conditions in these merger orders authorize only limited party discovery and do not authorize third-party subpoenas to or discovery of Petitioners. Petitioners contended that the requested ruling is necessary because of an arbitrator’s recent decision to issue subpoenas to Petitioners requiring them to produce highly confidential documents and other information and to present substantive testimony about those materials. Petitioners also expressed concern that arbitrators will take similar actions in other proceedings brought pursuant to current or future Commission merger orders that include arbitration conditions. Comments in this MB Docket No. 11-14 proceeding are due February 7, and replies are due February 17. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC CLARIFIES HOW TO RESOLVE DUPLICATE LIFELINE CLAIMS FOR ETCs: The FCC has sent a letter to the Universal Service Administrative Company (USAC) to provide informal guidance on how to resolve duplicate Lifeline claims, whereby more than one eligible telecommunications carrier (ETC) seeks support from USAC for the same eligible consumer or household. This question was raised in the Alltel Low-Income Audit Appeal and in subsequent discussions with USAC regarding the requirement, set forth in Commission orders, that eligible consumers may seek low-income support only for a single telephone line in their principal residence. The Wireline Competition Bureau sought comment on this issue in the Alltel Audit Public Notice. The FCC directs USAC to take specific steps to resolve duplicate claims for Lifeline support.
When it implemented the Lifeline program, the Commission determined that “qualifying subscribers may receive assistance for a single telephone line in their principal residence.” This requirement is commonly referred to as the “one-per-household rule” for Lifeline support. To ensure compliance with this requirement, some ETCs require consumers applying for Lifeline support to certify that they do not already receive Lifeline benefits at their current residential address. While Commission orders clearly set forth the “one-per-household” requirement, it is difficult for ETCs to make an independent determination that a subscriber is receiving only one Lifeline. There is no comprehensive database in place for ETCs to determine whether an eligible consumer is enrolled in Lifeline with another ETC, and ETCs are not in the position to share customer information with one another. ETCs therefore lack the data needed to prevent the occurrence of duplicate Lifeline claims.
Further, Commission orders and rules do not provide ETCs and USAC with a process to follow when they learn that a customer has received duplicate Lifeline support. In the past, when USAC determines a customer has received duplicate support, its practice has been to inform both ETCs of the issue and direct them to resolve the conflict. Under this approach, ETCs may lack the incentive to resolve such conflicts, as neither carrier is likely to willingly forego Lifeline support for an enrolled subscriber. For these reasons, this administrative practice may not be effective in reducing the number of claims for duplicate Lifeline support or swiftly remedy known cases of duplicate support.
When a duplicate claim is uncovered, the FCC directs USAC to notify the ETCs involved and direct those ETCs to stop including the duplicate subscribers among the subscribers claimed for Lifeline support on the form 497. USAC shall inform the ETCs at issue in writing and direct them to notify the customer by phone, and in writing where possible, that he or she has 30 days to select one Lifeline provider or face de-enrollment from the program. Once the customer selects a Lifeline provider by signing a new certification, the chosen ETC must notify USAC and the ETC who had previously served the customer of the customer’s selection. Once the chosen ETC notifies USAC and the competing ETC of the customer’s choice, the selected ETC may seek reimbursement for the customer, while the other ETC must de-enroll the customer from its Lifeline service and may not seek reimbursement for that customer going forward. In instances where multiple customers in a single household are receiving support from two or more ETCs, USAC should direct the ETCs to educate the subscribers on the Commission’s “one-per-household” requirement and require the subscribers to make a single Lifeline provider selection for the household or they will be de-enrolled from the program. The FCC said it believes this approach will not only protect the fund against waste, fraud and abuse upon a finding of duplicate support, but would also provide an incentive for ETCs to better educate their customers about the Lifeline program, and increase their due diligence prior to initiating service to a low-income consumer.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
RTG OPPOSES AT&T’s PROPOSED PURCHASE OF WINDSTREAM’s PENNSYLVANIA 700 MHz PROPERTIES: The Rural Telecommunications Group (RTG) has filed comments opposing AT&T Mobility's proposed purchase of six 700 MHz C Block licenses in Pennsylvania from Windstream, arguing that the transaction would keep smaller competitors out of the markets. Specifically, RTG asked the FCC to impose a spectrum ownership cap, and to require AT&T to provide data roaming services, as reported by Fierce Wireless. RTG argued AT&T's proposed transaction would "drastically reduce the number of potential roaming partners for rural carriers and the rural consumers they serve and further consolidate the already scarce amount of spectrum below 2.3 GHz into the hands of the nation's second largest mobile operator while simultaneously removing yet another potential competitor in rural markets that are already heavily-consolidated." RTG said that, if the FCC approves AT&T's transaction, "AT&T and Verizon Wireless will control all of the paired spectrum in the lower 700 MHz band" in three of the six Pennsylvania markets included in the proposed transaction. RTG said: “The threat of excessive market concentration and the corresponding removal of yet another potential competitor to AT&T is antithetical to the public interest. Before the Commission takes any action on the proposed transaction between AT&T and Windstream it must first do a comprehensive review of the much larger AT&T-Qualcomm proposed transaction. Should the Commission grant the licenses, it should only do so where no licensee, post-transaction, controls more than 110 megahertz below 2.3 GHz. Additionally, any grant of licenses should be accompanied with conditions that (1) prohibit the continued use of exclusivity agreements between carriers and device manufacturers, (2) require all devices in the Lower 700 MHz Band to be fully interoperable on all blocks within that band, and (3) extend automatic roaming obligations to data services.” The issue follows AT&T's proposed purchase of Qualcomm's 700 MHz FLO TV spectrum for $1.9 billion, which also is awaiting FCC approval. RTG urged the FCC to impose similar conditions on that transaction. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell.
PROPOSAL TO BAN “TEXTING WHILE WALKING” ????: New York state Sen. Carl Kruger (D) wants to introduce legislation that would ban “texting while walking.” In fact, he has been trying to do this since 2007. According to Fox News, he hopes to ban the use of mobile phones, iPods, and other “distracting” devices by pedestrians while they cross streets in major cities. Forget distracted drivers! Kruger said a series of accidents in his Brooklyn district made him concerned about the number of pedestrians he saw paying closer attention to their devices than to what was in front of them. Under his proposal, it would be illegal for pedestrians to use “distracting gadgets” while crossing streets in major New York cities with a population of 1 million or more. Violators would face a $100 fine. The proposed restriction came as safety advocates say they are worried about an increase in the number of pedestrian fatalities. The Governors Highway Safety Association this month reported that pedestrian fatalities rose slightly in the first half of 2010 compared with the same period in 2009, and if the second half of the year shows no change it would mark an end to four years of decreases. Arkansas Sen. Jimmy Jeffress backed a similar proposal to Kruger’s – one that would make it illegal for pedestrians and bikers to wear headphones near or on streets – before retracting his plans Tuesday afternoon. Jeffress told Fox16.com that he was inspired to draft a proposal after reading about a traffic accident in Little Rock. Jeffress later told the Associated Press he received many e-mails opposing the bill and admitted that the proposal didn’t have a chance of passing, but felt he was successful in voicing the issue.
This newsletter is not intended to provide legal advice. Those interested in more information should contact the firm.