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. 22|| June 1, 2011 |
Cell Phone Brain Cancer Issue Emerges Again
The World Health Organization (WHO) has determined that the numerous studies purporting to show a link between cell phone use and brain cancer support the conclusion that there may be a “risk,” especially for “heavy” users. The WHO’s International Agency for Research on Cancer (IARC) said yesterday that numerous studies “showed a link between heavy cell phone users and glioma, a malignant type of brain cancer and that the agency would assign cell phone radiofrequency electromagnetic fields as category 2B: possibly carcinogenic to humans,” according to the Washington Post. The “2B classification” is the same category as the pesticide DDT, gasoline engine exhaust and coffee, according to The AP. The IARC said that while the evidence is “still accumulating,” it is strong enough to support the “2B classification,” which means there “could be some risk,” the Post reported. Classifying agents as “possibly carcinogenic” doesn't mean they automatically cause cancer and some experts said the ruling shouldn't change people’s cellphone habits, AP reported. The same cancer research agency, AP said, lists alcoholic drinks as a known carcinogen and night shift work as a probable carcinogen. Anyone’s risk for cancer depends on many factors, from genetic makeup to the amount and length of time of an exposure. CTIA-The Wireless Association responded that the IARC “categorized radiofrequency fields from cellphones as ‘possibly’ carcinogenic based on ‘limited evidence.’ IARC conducts numerous reviews and in the past has given the same score to, for example, pickled vegetables and coffee. This IARC classification does not mean cellphones cause cancer. Under IARC rules, limited evidence from statistical studies can be found even though bias and other data flaws may be the basis for the results. The IARC working group did not conduct any new research, but rather reviewed published studies.” BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, Cary Mitchell, and Bob Jackson.
INSIDE THIS ISSUE
- AT&T’s full-court “press” to promote proposed T-Mobile merger creates conflict.
- FCC rules that LECs must interconnect exchange traffic with competitors, despite rural exemption.
- FCC seeks comment on changes to BRS, EBS bands.
- FCC seeks comment on proposed EAS changes.
- Senate panel approves “Protect IP Act,” but Wyden is holding it up.
AT&T’s Full-Court “Press” To Promote Proposed T-Mobile Merger Creates Conflict
AT&T’s full-court “press” (pun intended) to promote its proposed $39 billion merger with T-Mobile may very well backfire, because the company’s extensive media blitz continues to draw mounting opposition. In a nutshell, AT&T has been sending its top executives to meetings and conferences during the past two weeks, to highlight the “positive” reasons for consummating the deal, which must be approved by the FCC and the Department of Justice (DoJ) (BloostonLaw Telecom Update, March 23).
But the more AT&T speaks, the more other carriers and groups in the industry seem to be lining up to oppose the deal. As we reported last week, Leap Wireless joined Sprint-Nextel, Cellular South, and MetroPCS in voicing its opposition to the deal. And we noted that the National Telecommunications Cooperative Association (NTCA) has joined an informal coalition of industry and public interest groups to oppose the merger (BloostonLaw Telecom Update, May 25). Now the Rural Cellular Association (RCA) and Consumers Union (CU) have added their opposing voices through Congressional testimony at last week’s hearing conducted by the House Subcommittee on Intellectual Property, Competition and the Internet.
Before addressing this testimony, however, see AT&T’s core “Talking Points” on the proposed merger:
1. T-Mobile was going to be sold anyway—either to AT&T or Sprint.
2. The merger could have a positive impact on prices and service quality. (AT&T asserts that wireless prices declined 33% from 1999-2011 despite significant mergers.)
3. AT&T is a union shop, and the inclusion of some 20,000 non-union T-Mobile workers will protect jobs (a provision supported by the Communications Workers of America or CWA).
4. The merger will expand access to high-speed wireless Internet to 97% of the U.S. population, because T-Mobile has no current plans to bring 4G Long Term Evolution (LTE) to its 34 million customers.
5. AT&T is in the process of buying other properties to bring 4G LTE to an additional 55 million customers.
6. The deal would be good for rural America because LTE expansion would help achieve the FCC’s goal of providing broadband to everyone.
With respect to AT&T’s assertion that the proposed merger is necessary so that the company will have adequate spectrum to build out its network, the FCC has asked for “proof,” according to FierceWireless, Bloomberg News, and the Wall Street Journal. The Commission reportedly wants all of AT&T's presentations to bankers as well as details of a breakup fee if the deal doesn't go through. AT&T will have to pay T-Mobile parent Deutsche Telekom a breakup fee of $3 billion, according to a filing with the Securities and Exchange Commission.
In his Congressional testimony last week, as reported by FierceWireless, Steven Berry, president and CEO of RCA, argued that the smaller carriers will face higher roaming costs if the merger is approved. He also warned that the FCC likely will tighten its oversight of the wireless industry if the merger is approved, leading to additional and possibly stifling federal oversight of the wireless industry. Berry concluded that "this takeover cannot be conditioned into acceptance," asserting that divestitures won't lessen the market effect of a combination of AT&T and T-Mobile.
In general, opponents of the proposed merger, including the “No Takeover Project,” argue that the deal would:
1. Reduce competition. If AT&T takes over T-Mobile, AT&T and Verizon would have over four-and-a-half times the market share of the next biggest competitor. This proposed takeover creates a clear AT&T/Verizon duopoly that will dramatically reduce competition in the wireless industry, giving them leverage to raise prices and potentially slow disruptive products from reaching the market at the expense of the consumer.
2. Not add new spectrum. Acquiring T-Mobile won't increase AT&T's geographic reach — the networks almost entirely overlap. T-Mobile is the most spectrum-constrained of any nationwide carrier. AT&T already has ample spectrum, holding on average more than 40 MHz of prime broadband-capable 700 MHz, AWS and WCS spectrum that has yet to be built out.
3. Hurt the industry. The takeover of T-Mobile by AT&T would eliminate the competitive market forces that help regulate price and encourage innovation, putting the smaller and regional carriers at the mercy of the duopolists. It would also further leverage AT&T’s control over backhaul and special access services, which are critical inputs to providing mobile broadband service. Rural, small and regional GSM carriers would be forced to deal with a GSM monopoly: the new bigger AT&T.
4. Hurt the U.S. economy. The proposed takeover will eliminate stores, jobs, back offices and marketing spending. This is not only a loss of jobs for T-Mobile and AT&T workers, but for every business with ties to the wireless telecom industry.
On the other hand, AT&T argues that the deal will allow it to continue competing in the U.S. wireless market by supplying the carrier with needed spectrum and capacity.
During last week’s Congressional hearing, AT&T Chairman & CEO Randall Stephenson emphasized that, “LTE will give businesses located in rural America the same powerful tools enjoyed by those located in major cities. And, rural consumers will particularly benefit from real-time access to a wide range of resources.” Stephenson said that expanding broadband to rural America “will revolutionize telemedicine, allowing doctors to have real-time interactions with patients remotely and provide much more robust, accurate and immediate assessments with patients remotely from monitoring devices and data intensive tools like MRIs.”
In this regard, AT&T Mobility announced that it will launch LTE service in its first five markets—Atlanta, Chicago, Dallas, Houston, and San Antonio— as the summer gets under way.
AT&T Buying Spree: As noted above, AT&T is also acquiring 700 MHz band spectrum to support its LTE rollout. Last week, the FCC sought comment on the transfer of 700 MHz licenses from Qualcomm, 700 MHz LLC, and Knology of Kansas to AT&T (BloostonLaw Telecom Update, May 25).
Additionally, the FCC has asked for comment on an application to transfer control of the 22 Lower 700 MHz B- and C-Block licenses held by Redwood Wireless Corp., a wholly-owned subsidiary of Redwood 700, to AT&T. These licenses cover 72 counties in Wisconsin and Minnesota. Petitions to deny the application are due June 7. Oppositions to such petitions are due June 17, and replies to the oppositions are due June 24. All filings should refer to ULS File No. 0004643747.
The FCC also has requested comment on an application to assign two lower 700 MHz B-Block licenses held by Windstream Iowa Communications and Windstream Lakedale. These licenses cover 78 counties in Iowa, Illinois, and Minnesota. Petitions to deny the application are due June 9. Oppositions to such petitions are due June 20, and replies to the oppositions are due June 27. All filings should refer to ULS File No. 0004681771 and/or 0004681773, as appropriate.
AT&T is not without its supporters for the proposed merger with T-Mobile. As noted last week, the Communications Workers of America (CWA) favors the proposed merger with non-unionized T-Mobile because it thinks the deal would be good for the union. And more recently, the National Rural Health Association (NRHA) voiced its support for the deal, primarily because it believes telemedicine in rural and remote areas would be improved. The NAACP also supports the proposed merger.
Nevertheless, AT&T and its most vocal big-carrier opponent, Sprint, have also taken the battle to the states. AT&T argues that the governors of Arkansas, Georgia, Idaho, Louisiana, Maine, Michigan, Oklahoma, Texas, and South Carolina have sent letters to the FCC urging the agency to approve the deal.
Sprint, on the other hand, notes that the Louisiana Public Service Commission voted 4-1 to open a formal proceeding on the AT&T/T-Mobile transaction, a move Sprint said AT&T opposed. Sprint notes that similar proceedings against the proposed merger are beginning in California and West Virginia. AT&T clearly opposes any state scrutiny of the proposed merger.
Petitions to deny the AT&T/T-Mobile applications were due yesterday, May 31. Oppositions to such pleadings must be filed no later than June 10, 2011. Replies to such pleadings must be filed no later than June 20, 2011. All filings should refer to DA 11-799 and WT Docket No. 11-65, as well as the specific file numbers of the individual applications or other matters to which the filings pertain.
As of yesterday, the first 10,000 records in WT Docket No. 11-65 posted on the FCC’s website are overwhelming from individuals, who, according to a random sample, all appear to state the following brief paragraph:
“AT&T's takeover of T-Mobile would stifle choice and innovation in the market, harm consumers, and lead to higher prices and fewer jobs nationwide. Don't let AT&T put our mobile future at risk. Please stand with me and reject such reckless consolidation of the mobile industry.”
BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
FCC Rules That LECs Must Interconnect Exchange Traffic With Competitors, Despite Rural Exemption
The FCC has released an Order clarifying that local exchange carriers (LECs) are obligated to interconnect exchange traffic, even if the LEC has a rural exemption from the obligations set forth in section 251(c) of the Communications Act. The Commission said its intent is to promote competition and spur investment, particularly in rural areas, by encouraging deployment of facilities-based voice services.
The FCC concluded requests made to incumbent LECs for interconnection and services under sections 251(a) and (b) are subject to state commission arbitration and that section 251(f)(1) does not exempt rural ILECs from the compulsory arbitration process established in that provision. The Order is a result of petitions filed by CRC Communications of Maine, Time Warner Cable, and Oklahoma Western Telephone Co., all of which the Commission denied.
In its Declaratory Ruling, the FCC reaffirmed basic interconnection rights for competitive providers of voice services. The FCC said the purpose of the ruling is to clarify statutory rights under section 251 of the Communications Act, in light of apparently conflicting determinations in several states.
The FCC said its decision will promote competition and spur investment in communications networks and services, particularly in rural areas, by encouraging the deployment of facilities-based voice services. The decision will also give competitors the opportunity to offer “triple-play” services (voice, video, and data) by providing interconnection with incumbent carriers in the same area, the Commission added. Moreover, the FCC said its decision will provide clarity and guidance to incumbent LECs, competitive providers, and state commissions about the rights and obligations regarding negotiation and arbitration under section 251.
The FCC also clarified that the rural incumbent LECs’ obligations under sections 251(a) and (b) can be implemented through the state commission arbitration and mediation provisions in section 252 of the Act. Finally, the Commission reaffirmed that providers of wholesale telecommunications services enjoy the same rights as any other telecommunications carrier under sections 251(a) and (b) of the Act. The FCC said it believed that the guidance provided in its Declaratory Ruling is necessary to remove substantial uncertainty regarding the scope of sections 251 and 252 in state commission proceedings.
The FCC noted that CRC Communications and Time Warner had asked the Commission to preempt an order by the Maine Public Utilities Commission (PUC) addressing issues similar to the ones addressed in the Declaratory Ruling. The Oklahoma Western Telephone Company had filed a Petition for Clarification asking “that the Commission clarify that the determination of an exempt rural carrier’s interconnection, reciprocal compensation and other duties imposed by section 251(a) and (b) of the Act are not subject to the mandatory negotiation and arbitration procedures respectively specified in sections 251(c) and section 252 of the Act.”
In declining to grant these petitions, the FCC found that its Declaratory Ruling will clarify parties’ rights and obligations under sections 251 and 252 and that preemption is unnecessary. The Commission said that CRC and TWC may submit a request for interconnection under section 251(a) and (b) and may invoke the arbitration procedures of section 252 if the parties are unable to reach a negotiated agreement. The FCC said it also recognized that state commissions have the responsibility in the first instance for determining whether, and the extent to which, the provisions in section 251(f) apply in a particular context.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC Seeks Comment On Changes To BRS, EBS Bands
The FCC has issued a Fourth Further Notice of Rulemaking (NPRM), seeking comment on a proposal to use wider channel bandwidths for the provision of broadband services in certain spectrum bands. Specifically, the NPRM seeks comment on proposed changes to the out-of-band emission limits for mobile Broadband Radio Service (BRS) and Educational Broadband Service (EBS) devices operating in the 2496-2690 MHz band (2.5 GHz band). The FCC said the proposed changes may permit operators to use spectrum more efficiently, and to provide higher data rates to consumers, thereby advancing key goals of the National Broadband Plan. The changes would also promote greater harmonization of FCC requirements with global standards for mobile devices in the 2.5 GHz band, potentially making equipment more affordable and furthering the development of mobile broadband devices, the Commission said. It seeks comment on whether the proposed changes can be made without increasing the potential for harmful interference to existing users in the 2.5 GHz band and adjacent bands.
Currently, the 2.5 GHz band is used by Clearwire and other operators to provide wireless broadband service using the Worldwide Interoperability for Microwave Access (WiMAX) version 802.16e standard. WiMAX can support fixed and nomadic, as well as portable and mobile, wireless broadband applications. Current WiMAX deployments typically use maximum channel bandwidths of 10 megahertz. Clearwire reports that average usage for its mobile services is more than 7 GB/month. Wireless broadband data usage is projected to increase by a factor of at least twenty from 2009 to 2014. One way of making more efficient use of spectrum is to increase channel bandwidth. Long Term Evolution (LTE)-Advanced and WiMAX2 contemplate channel bandwidths up to 40-100 megahertz.
WCAI Petition: On October 22, 2010, the Wireless Communications Association International (WCAI) filed a petition for rulemaking asking the Commission to revise the out-of-band emission limits for mobile digital stations operating in the BRS and EBS band to accommodate channel bandwidths of 20 megahertz and wider. WCAI argues that these changes are necessary to permit operators to realize the full benefits of 4G technologies. WCAI asserts that it is currently difficult for BRS/EBS devices to meet the out-of-band emission limits for 10 megahertz channels because of the limits of power amplifier efficiency inherent in current technology, and states that developing a smartphone that would fully use a 20 megahertz channel bandwidth that complies with the current out-of-band emission limits would be very difficult or impossible.
The FCC found that facilitating the use of wider channels in the 2.5 GHz spectrum band would greatly enhance spectrum efficiency and throughput in wireless broadband systems operating in the band. It also found that the opportunity to harmonize the Commission’s rules with international standards could benefit both operators and consumers by encouraging the development of mobile broadband equipment for the 2.5 GHz band at lower cost. Thus, it initiated its Fourth FNPRM based on a Wireless Communications Association International (WCAI) proposal to change the out-of-band emission limits for mobile devices for BRS and EBS. In particular, the FCC seeks comment on whether the proposed rule change is necessary to permit mobile devices to operate in the 2.5 GHz band using channel bandwidths wider than 10 megahertz. In addition, the FCC seeks comment on whether, in connection with the proposed rule changes, it should consider adopting additional measures of protecting against interference to adjacent bands.
Comments in this WT Docket No. 03-66 proceeding will be due 30 days after publication in the Federal Register, and replies will be due 15 days thereafter.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino.
FCC Seeks Comment On Proposed EAS Changes
The FCC has adopted a Third Further Notice of Proposed Rulemaking (FNPRM), seeking comment on proposed changes to its Part 11 rules governing the Emergency Alert System (EAS) 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.
The FCC said these proposed Part 11 rule revisions seek to integrate CAP-based alert messaging into the existing EAS while laying the foundation for transitioning to next generation alert mechanisms. The Commission also seeks comment on several proposed rule revisions unrelated to CAP that are designed to modernize and streamline the Part 11 rules by eliminating outdated technical and procedural requirements, and more generally, improve the overall effectiveness of the EAS. Among other things, in the FNPRM, the FCC seeks comment on and render tentative conclusions in the following areas:
Scope of Part 11 Revision: The FCC tentatively concludes, with respect to the CAP-related obligations addressed in this item, that the agency’s focus should be on ensuring that CAP-formatted alert messages entered into the EAS are converted into and processed in the same way as messages formatted in the EAS Protocol.
Obligation to Accept CAP Messages:
- The FCC tentatively concludes that it should revise the Part 11 rules to make clear that EAS participants must be able to convert CAP-formatted EAS messages into EAS Protocol-compliant EAS messages in accordance with the ECIG Recommendations for a CAP EAS Implementation Guide, Version 1.0 (May 17, 2010).
- The FCC tentatively concludes that it should require that EAS participants monitor the Really Simple Syndication 2.0 feed(s) utilized by: (i) the Federal Emergency Management Agency’s (FEMA’s) Integrated Public Alert and Warning System for federal CAP-formatted messages; and (ii) state alert systems as the source of governor-originated CAP messages (provided these are described in the State Area EAS Plan submitted to and approved by the Commission).
- The FCC seeks comment on whether it should permit EAS participants to meet their CAP-related obligations by deploying intermediary devices that convert CAP-formatted messages into EAS Protocol-formatted messages for transmission over the EAS participants’ transmission platforms.
EAS Equipment Certification:
- The FCC seeks comment on whether and how it should incorporate compliance with CAP functionality into its existing certification scheme, including how it should implement conformance testing related to the proper translation of CAP-formatted messages into EAS Protocol-compliant messages and what requirements the Commission should adopt for modified EAS equipment.
- The FCC seeks comment on whether it should classify intermediary devices as stand-alone devices subject to the same certification requirements as stand-alone decoders and encoders.
180-Day CAP Reception Deadline:
- The FCC seeks comment on whether the current September 30, 2011, deadline for CAP-compliance is sufficient or whether the Commission should extend or modify it so it is triggered by some action other than FEMA’s adoption of CAP, such as implementation by the Commission of revised certification rules.
CAP Messages Originated by State Governors:
- The FCC tentatively concludes that the obligation of EAS participants to receive and transmit CAP-formatted messages initiated by state governors only applies to the extent that state governors have formatted such CAP messages using FEMA’s standards for federal CAP messages.
- The FCC seeks comment on any rule revisions needed to fully implement the obligation to process CAP-formatted messages initiated by state governors, including whether the Commission must adopt a new origination and/or event code and whether the obligation should extend to governors of any adjacent states in which the EAS participant provides service.
- The FCC tentatively concludes that it should define the geo-targeting element of mandated gubernatorial alerts in Part 11 in the same way as it defines the location provisions in the current EAS Protocol.
Revising the Procedures for Processing Emergency Action Notifications (EANs):
- The FCC seeks comment on whether it should substantially simplify procedures for processing EANs set forth in section 11.54 and related Part 11 rule sections so that EAS participants process EANs like any other EAS message, only on a mandatory and priority basis. The FCC also seeks comment on whether it should:
- eliminate the Emergency Action Termination event code and replace it where necessary with the End Of Message code in the Part 11 rules;
- delete sections 11.16, 11.42, 11.44, and 11.54(a), (b)(1)-(8), (10), (12), and 11.54(c) of the rules; and
- eliminate the EAS Operating Handbook and instead require EAS Participants to maintain within their facilities a copy of the current FCC-filed and approved versions of the State and Local Area EAS Plans.
Miscellaneous Part 11 Revisions Not Related to CAP:
- The FCC seeks comment on whether it can delete some or all of the current provisions relating to the Attention Signal in sections 11.32(9) and 11.33(b) of the rules and instead apply the minimal standard currently set forth in section 11.31(a)(2) or whether it should delete the Attention Signal from the Part 11 rules altogether.
- The FCC seeks comment on whether the introduction of CAP to the existing technical framework of the EAS can improve access to emergency information to persons with disabilities.
Comments in this EB Docket No. 04-296 proceeding will be due 30 days after publication in the Federal Register, and replies will be due 15 days thereafter.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell.
SENATE PANEL APPROVES “PROTECT IP ACT,” BUT WYDEN IS HOLDING IT UP: The Senate Judiciary Committee last week voted unanimously to approve the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property (PROTECT IP) Act, which would allow copyright holders to seek court orders requiring payment processors and online advertising networks to stop doing business with infringing websites (BloostonLaw Telecom Update, May 25). The bipartisan bill, introduced by Sen. Patrick Leahy (D-Vt.), is supported by a wide range of industries, including the film and music sectors. Backers of the legislation say that online piracy cuts deeply into their profits and kills jobs. But before the bill can be passed in the full Senate, it must overcome opposition from Sen. Ron Wyden (D-Ore.). "In December of last year I placed a hold on similar legislation, commonly called (the Combating Online Infringements Counterfeit Act)," Wyden said in a statement. "I felt the costs of the legislation far outweighed the benefits. After careful analysis of the Protect IP Act, or PIPA, I am compelled to draw the same conclusion. I understand and agree with the goal of the legislation, to protect intellectual property and combat commerce in counterfeit goods, but I am not willing to muzzle speech and stifle innovation and economic growth to achieve this objective." BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
BILL TO PROTECT CHILDREN FROM PORN INTRODUCED IN HOUSE: A bipartisan bill introduced last week in the U.S. House of Representatives will require Internet service providers to retain subscriber information for up to 18 months to assist federal law enforcement in investigations into online child pornography and child exploitation cases, according to IDG News Service. The Protecting Children from Internet Pornographers Act of 2011 aims to amend Section 2703 of Title 18 of the United States Code to make it compulsory for the provider of an electronic communication service keep IP address records for at least 18 months. IP addresses are the online addresses used by computers on the Internet. Consumer PCs often get a new address each time they connect to the Internet, so keeping records of which account was assigned which address can be vital in tracking down suspects. The new bill exempts addresses transmitted by radio communication—that is, wireless carriers will not be subject to the extensive data-logging requirements in the legislation. House Judiciary Committee Chairman Lamar Smith (R-Texas) and Congresswoman Debbie Wasserman Schultz (D-Fla.) said they introduced the bill to help investigators track down dangerous pedophiles and protect children from sexual exploitation. The bill also amends Section 2703 to state that it is the sense of Congress that records retained pursuant to the new Section 2703(h) of title 18, United States Code, should be stored securely to protect customer privacy and prevent against breaches of the records, according to IDG. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC ADOPTS NPRM TO IMPLEMENT “CALM ACT”: The FCC has adopted a Notice of Proposed Rulemaking (NPRM), proposing rules to implement the Commercial Advertisement Loudness Mitigation (CALM) Act. Among other things, the CALM Act directs the Commission to incorporate into its rules by reference and make mandatory a technical standard developed by an industry standard-setting body that is designed to prevent television commercial advertisements from being transmitted at louder volumes than the program material they accompany. As mandated by the statute, the proposed rules will apply to TV broadcasters, cable operators and other multichannel video programming distributors (MVPDs). The new law requires the Commission to adopt the required regulation on or before December 15, 2011, and it will take effect one year after adoption. The FCC seeks comment on proposals regarding compliance, waivers, and other implementation issues. Comments in this MB Docket No. 11-93 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.
HOUSE LEADERS URGE FCC TO REMOVE “FAIRNESS DOCTRINE” FROM REGULATIONS: House Energy and Commerce Chairman Fred Upton (R-Mich.) and Communications and Technology Subcommittee Chairman Greg Walden (R-Ore.) have sent a letter urging the FCC to remove the Fairness Doctrine rules from the Code of Federal Regulations. The Fairness Doctrine has been deemed unconstitutional by the FCC itself, and has long been viewed as a threat to free speech, the lawmakers said. “Despite the FCC’s determination not to enforce the Fairness Doctrine, Commissioner [Robert] McDowell recently discovered that it still remains in the Code of Federal Regulations,” wrote Upton and Walden. “Further research has revealed that the political-editorial and personal-attack rules also remain intact despite the FCC’s decision to repeal them. The media marketplace is more diverse and competitive today than it was ten years ago when the D.C. Circuit struck down the Commission’s political-editorial and personal-attack rules. The difference is even more stark when compared to the market twenty years ago when the Commission concluded that the Fairness Doctrine was unconstitutional.” Earlier this year, President Obama called on federal agencies to review existing regulations, paying particular attention to outdated regulations that remain on the books. Although independent agencies like the FCC are not technically required to comply with the administration's Executive Order on regulatory relief, FCC Chairman [Julius] Genachowski has indicated that he intends to abide by the spirit of the administration's policy. Upton and Walden concluded their letter by calling on Chairman Genachowski to remove the Fairness Doctrine and related political-editorial and personal-attack rules from the Code of Federal Regulations. The committee leaders requested a written confirmation by June 3 that the FCC will finally wipe these outdated rules from the books as soon as possible. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
COURT RULES AGAINST FEATURE GROUP IP IN VoIP TRAFFIC FORBEARANCE CASE: The U.S. Court of Appeals for the District of Columbia Circuit has denied Feature Group IP’s appeal, challenging the FCC’s denial of its petition for forbearance. Specifically, Feature Group IP asked the FCC to forbear from applying exchange access charges under section 251(g) of the Communications Act, and related rules to “voice-embedded Internet communications” traffic—a subset of Voice over Internet Protocol or “VoIP” traffic. In Feature Group IP v. FCC, the petitioner argued that such traffic was not actually subject to exchange access charges under existing law and that instead reciprocal compensation charges under section 251(b)(5) applied. But if the FCC disagreed, Feature Group asked the Commission to forbear from applying the legal provisions that could result in the imposition of access charges. But the D.C. Circuit rejected Feature Group IP’s contention that the FCC acted improperly by assuming for the purpose of its forbearance analysis that section 251(g) and related Commission rules apply to the traffic at issue. Nothing requires the FCC to determine a party’s existing legal obligations before ruling on a forbearance petition. Moreover, the Court said, precedent makes clear that although the FCC must not deny a forbearance request “solely because the petition seeks forbearance from uncertain or hypothetical regulatory obligations,” the Commission “may take into account [a petition’s] conditional nature” when evaluating its merit. If the FCC may take the petition’s conditional nature into consideration, the Court said, then it necessarily has discretion to leave the resolution of existing legal duties for other proceedings, as it has elected to do here. To the extent Feature Group IP believes the FCC has unreasonably delayed resolution of legal issues, it may petition for mandamus. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
CLEARWIRE INVESTOR WANTS COMPANY TO SELL SPECTRUM: According to Bloomberg News, Clearwire Corp. investor Pardus Capital Management has asked interim Chief Executive Officer John Stanton to reexamine a sale of spectrum holdings to help boost the stock price and the wireless-service provider’s value to an acquirer. Clearwire stock has declined 14 percent this year, Bloomberg said. Selling wireless frequencies will help establish a higher value for Clearwire’s assets and free up cash, Pardus said in a recent letter to Stanton. This month, Bloomberg reported, Stanton ruled out selling the spectrum in 2011 after considering offers. Pardus asserted that Sprint Nextel, which owns more than half of Clearwire, may be preventing sale of the spectrum to hold down the company’s stock price and make a buyout easier later. Pardus said it wants a special committee made up of directors not appointed by Sprint to weigh in on negotiations about contracts or sales, such as a potential spectrum disposal. Bloomberg noted that in 2008, Clearwire reshaped itself into a company with a faster, fourth-generation wireless service with an investment from shareholders including Sprint, Time Warner Cable Inc., Google Inc., Intel Corp. and others. Clearwire said in November it would consider selling spectrum to raise cash after warning investors it could run out of funds as early as midyear. The company raised $1.33 billion in bonds and exchangeable notes in December and this month Stanton said he would hold on to the spectrum in spite of having multiple offers, according to Bloomberg.
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