BloostonLaw Telecom Update Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP [Selected portions reproduced here with the firm's permission.] www.bloostonlaw.com | Vol. 12, No. 11 | March 18, 2009 |
Enforcement Of “Red Flag” Rules Begins May 1 The Federal Trade Commission (FTC) last year suspended enforcement of the “Red Flag” Rules until May 1, 2009, to give creditors and financial institutions additional time to implement identity theft programs. Under the new rules, all businesses that maintain a creditor-debtor relationship with customers, including virtually all telecommunications carriers, must adopt written procedures designed to detect the relevant warning signs of identify theft, and implement an appropriate response. The Red Flag compliance program was to have been in place by Nov. 1, 2008. But the FTC will not enforce the rules until May 1, 2009, meaning only that a business will not be subject to enforcement action by the FTC if it delays implementing the program until May 1. Other liabilities may be incurred if a violation occurs in the meantime. The requirements are not just binding on telcos and wireless carriers that are serving the public on a common carrier basis. They also apply to any “creditor” (which includes entities that defer payment for goods or services) that has “covered accounts” (accounts used mostly for personal, family or household purposes). This also may affect private user clients who use radios internally, as well as many telecom carriers’ non-regulated affiliates and subsidiaries. BloostonLaw has prepared a Red Flag Compliance Manual to help your company achieve compliance with the Red Flag Rules. Please contact Gerry Duffy and Mary Sisak with any questions or to request the manual. States Push To Influence Distribution Of NTIA/RUS Broadband Program Grants Private entities should only be considered eligible for the Broadband Technology Opportunities Program (BTOP) when they act in partnership with state entities, according to D.C. Public Service Commission Chairwoman Betty Anne Kane. Speaking at the March 16 American Recovery and Reinvestment Act of 2009, roundtable public meeting in Washington, D.C., Ms. Kane emphasized that the ARRA directs the National Telecommunications and Information Administration (NTIA) to consult with the states regarding who gets a broadband grant. She noted that Section 6001-C of the Act “directs NTIA to consult with the states on the identification of underserved and unserved areas along their borders, and the allocation of grants affecting each state.” Ms. Kane said that states have resources and familiarity with local, demographic and market conditions that can contribute to the success of the broadband grant program. However, Curt Stamp, President of the Independent Telephone and Telecommunications Alliance (ITTA), challenged this position. He said that Congress has rejected the idea that one would have to partner with the states. Rather, the “intent of Congress is clear that…we should have the eligibility as broad as possible, and I think if we start putting a lot of restrictions on who you have to require and who can apply,” you run the risk of driving away potential investors. Mr. Stamp added that the major reason there is no investment in unserved/ underserved areas today is that there is no economic business case to be made for such an investment—that is the reason for providing grants to private sector entities. Debbie Goldman, Telecommunications Policy Director and Research Economist for the Communications Workers of America (CWA) said “I want to ditto what Curt just said. A lot of reasons this is important is there was not an incentive to build infrastructure, and equally important is there needs to be an assurance that once that infrastructure is built with public money that the entity that built it has the capacity, both technical and managerial, and the skill to operate it.” The second roundtable discussion focused on coordination between NTIA and RUS broadband initiatives. J. Bradford Ramsay, General Counsel, National Association of Regulatory Utility Commissioners (NARUC) focused on the application process, and the processing of applications once they are made. He discussed recommendations for the mechanics of the process, including ways to share information and prevent double-dipping. Derrick Owens, Director of Government Affairs, Western Telecommunications Alliance (WTA) said his group also advocates the need for a uniform application procedure. He noted that many WTA companies are RUS borrowers, but none are NTIA borrowers. “As far as grants vs. loans,” he said, “we believe grants should be the way both agencies go. Obviously, for NTIA, that is already in the statute…we believe RUS has to look to give most of their money out through loans.” He said he also believes that NTIA should grant its money for rural as well as non-rural areas. He said there should be a joint NTIA/RUS database that is public so that people can find out who is actually applying for grant money. He agreed that there should be measures to prevent double- dipping. During the discussion period, the question of the states’ role in the broadband grant program arose again. Mr. Ramsay said he liked the idea of having sate and local agencies involved in the validation process. Mr. Owens said “state involvement is good in the sense of helping make sure you get the proper information. But if it comes to the point of the states actually making the determination of who is getting the funding, that may pose a problem for our members. And there is also a concern with adding an extra step in the process, when we are trying to [streamline the process].” Mark Cooper, Director of Research, Consumer Federation of America, said he would second that in the following sense: states as potential grantees would be fine, but not to the exclusion of other state and local entities who actually know the people, know their areas. “I understand that governors know their areas well, but rural cooperatives know their areas well and can be actionable users,” Mr. Cooper said. He suggested a statewide association of telcos or consumer action companies applying for a grant. Mr. Ramsay said that if you do not have state involvement, then you probably will have “a bunch of consultants in Washington, who know very little about the states, calling my state commissions, because this is what has happened to me in the past, and trying to get information from my state commissions to do the evaluations.” Mr. Cooper replied that he was not sure that there would be much progress in replacing consultants in Washington with consultants in Albany and Springfield. “I will agree that if you are going to do it that way,” he said, “the NTIA and RUS will have to come up with some very, very specific criteria so that it’s not really a lot of discretion to the governor or PUC [Public Utility Commission].” A third roundtable focused on education and telemedicine issues. Meetings were held March 17 in Las Vegas, Nevada, and March 18 in Flagstaff, Arizona. Meetings are scheduled for March 19, 23, and 24 in Washington, D.C. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, John Prendergast, Mary Sisak, and Cary Mitchell. FCC Proposes $75,000 Fine For Apparent Violation Of Anti-Collusion Rules The FCC has issued a Notice of Apparent Liability for Forfeiture (NAL), proposing to fine a rural telecom applicant to participate in Auction No. 73, $75,000 for apparently violating the auction “anticollusion” rule by contacting another bidder in the auction about an unrelated cellular transaction, after dropping out of the auction. This fine underscores the need for auction applicants to be ultra-careful about ANY communications with other entities during an auction. The FCC’s anticollusion rule prohibits communications during the auction with another bidder over any matter that “may affect” bids, bid strategies or post-auction market structure, so even seemingly unrelated discussions over cellular deals, resale agreements, or interconnection negotiations have the potential to trigger a violation. It is possible to continue negotiations of certain transactions if an appropriate auction agreement is reached and both parties report it in their short form applications. The Commission adopted its anti-collusion rule to prevent collusive conduct during auctions, to facilitate the detection of such misconduct, and to maintain public confidence in the integrity of the auction process. In so doing, the Commission expressed concern “that collusive conduct by bidders prior to or during the auction process could undermine the competitiveness of the bidding process and prevent the formation of a competitive post- auction market structure.” The FCC took particular issue with the fact that the rural applicant informed the other bidder that it had dropped out of the auction, and thus was ready to resume negotiations on the cellular deal. The FCC found that this affirmatively disclosed to another auction applicant information about its bidding strategy, in apparent violation of Section 1.2105(c)(1) of the Commission’s rules. In addition, the FCC pointed out that the offending applicant was required, but failed, to disclose this communication to the Commission, in apparent violation of Section 1.2105(c)(6) of the Commission’s rules. Clients should note that the FCC takes its anti- collusion rules seriously. The lesson here is to not communicate anything about an auction, or even unrelated discussions, without the advice of an attorney. It is also important to determine if a party with which you negotiating is going to be an applicant in the same auction as you, so that appropriate protections can be put into place. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell. STIMULUS BILL REQUIRES UNION WAGES FOR CERTAIN CONSTRUCTION PROJECTS: State governments that contract jobs paid for with stimulus money will be required to pay workers on construction projects union wages rather than market rates, according to Foxnews.com. The Fox Web site reports that the Office of Management and Budget (OMB) included in the $787 billion economic stimulus bill the so-called Davis- Bacon provision, a 1931 law typically used only on federal highway projects. But under the new spending plan, Davis-Bacon will apply to all state and local jobs on energy, housing, agriculture, or construction. Higher costs per project mean fewer projects completed, especially since some "shovel ready" projects were bid as non-union jobs, Fox said. Some local officials and economists say the union wage mandate means taxpayer dollars won't be stretched as far as otherwise was planned. Organized labor insists the inclusion of the higher rates is not payback by the White House for its widespread support of President Obama in the campaign, Fox said. But some critics are not so sure. Non-union builders' associations say since Democrats took control of the House, more bills may be coming out with Davis-Bacon attached. COMMENT DATES SET FOR PETITION ASKING WHETHER CREDITORS CAN SEND AUTOMESSAGES TO CERTAIN WIRELESS NUMBERS: The FCC has established comment dates on Paul D. S. Edwards’ petition for an expedited clarification and declaratory ruling regarding the FCC’s rules under the Telephone Consumer Protection Act (TCPA). Specifically, Edwards asked the Commission to clarify whether a creditor may place auto-dialed or prerecorded message calls to a telephone number associated with wireless service that was provided to the creditor initially as a telephone number associated with landline service (BloostonLaw Telecom Update, March 4). Comments in the CG Docket No. 02-278 proceeding are due April 2, and replies are due April 13. Section 64.1200(a)(1)(iii) of the Commission’s rules prohibits the initiation of “any telephone call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or prerecorded voice, to any telephone number assigned to . . . cellular telephone service. . . .” The Commission concluded that such calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the “prior express consent” of the called party. Edwards asserts that the Commission’s ruling permits debt collection calls to a wireless telephone number only when the consumer, in that instance, provides the wireless telephone number to the creditor. Edwards contends that when the creditor is initially provided a “landline” telephone number, and subsequently that “landline” number is ported to a cellular telephone, an established business relationship, “prior express consent,” or other exemption from section 227(b)(1)(A)(iii) of the TCPA is not created. Edwards concludes that compliance with the TCPA requires that the consumer must have provided the creditor a telephone number assigned to a wireless service in order for calls to the wireless telephone number to be permissible. BloostonLaw contacts: Ben Dickens, Gerry Duffy, John Prendergast, and Mary Sisak. FCC RELEASES TELEPHONE SUBSCRIBERSHIP REPORT: The FCC has released its latest report on telephone subscribership levels in the United States. The report presents subscribership statistics based on the Current Population Survey (CPS) conducted by the Census Bureau in July 2008. The report also shows subscribership levels by state, income level, race, age, household size, and employment status. In July 2008: • The telephone subscribership penetration rate in the U.S. was 95.4%, an increase of 0.4% over the rate from July 2007. • The telephone penetration rate for households in income categories below $20,000 was at or below 93.9%, while the rate for households in income categories over $50,000 was at least 98.2%. • Penetration rates ranged from 91.7% for households headed by a person under 25 to at least 96.3% for households headed by a person over 55. • Households with one person had a penetration rate of 93.0%, compared to a rate of 96.8% for households with four or five persons. • The penetration rate for unemployed adults was 94.3%, while the rate for employed adults was 96.4%.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. FCC RELEASES ILEC QUALITY OF SERVICE REPORT: The FCC has released a report titled Quality of Service of Incumbent Local Exchange Carriers. This report enables consumers, regulators, and industry to evaluate quality-of-service trends of the major incumbent local exchange carriers (regional Bell companies and Embarq), as well as smaller incumbent local exchange carriers. The data is presented separately for each company and includes measures of service quality provided to residential and business end-user customers, as well as service quality provided to long distance carriers. Statistically significant six-year trends as of 2007 were identified in the following indicators of industry-wide service quality: • Repair intervals are increasing on average 4.7% annually for the industry overall, 5.3% annually for the larger companies, and 4.1% annually for the smaller companies. • Trouble reports per thousand lines are increasing on average 2.3% annually for the industry overall. • Percentage of customers dissatisfied with residential installations is increasing on average 3.1% per year for the larger companies. • Percentage of installation commitments met is increasing for small companies on average 0.71% annually. • Percentage of switches with downtime is decreasing by 0.75% annually for the large companies.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. FCC RELEASES ANNUAL TELECOMMUNICATIONS PROVIDER LOCATOR REPORT: The FCC has released its annual Telecommunications Provider Locator report. The report lists 6,252 companies registered to provide interstate telecommunications as of October 2007, as compared to 5,428 companies as of November 2006. For each of these providers, the report identifies whether it reported revenue for local, wireless, payphone, operator, and prepaid calling card, or other toll services, and whether it contributed to support universal service. The report also provides contact information for each company. This report was compiled using information from FCC Form 499-A Telecommunications Reporting Worksheets filed by telecommunications providers. The filed worksheets are proprietary and therefore not available to the public. The report itself is a series of tables and is available at REPORT.WCB DOC-289171A1.pdf on the FCC’s Web site. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. FCC RELEASES TELEPHONE NUMBER UTILIZATION REPORT: The FCC has released its latest report on telephone number utilization in the United States. Telephone number utilization refers to the percentage of telephone numbers assigned to customers compared to the total of telephone numbers assigned to carriers. The Numbering Resource Utilization Report details how those telephone numbers are being used. The report presents numbering resource utilization statistics based on June 2008 data that carriers submitted to the North American Numbering Plan Administrator (NANPA), as well as other information. Tracking number utilization is one of a number of initiatives taken by the Commission to ensure that limited numbering resources are used efficiently. Utilization Statistics by Carrier Type – Reporting carriers have over 1.3 billion telephone numbers. Of these, about 652 million were assigned to customers, about 619 million were available to be assigned, and about 84 million were used for other purposes, such as for administrative use. Following are utilization statistics by carrier type as of June 30, 2008: (1) Overall, 48.1% of all telephone numbers were assigned to customers; (2) The overall utilization rate for Incumbent Local Exchange Carriers (LECs) was 50.3%, down from 50.7% six months earlier; (3)The overall utilization rate for Cellular/PCS carriers was 65.3%, up from 65.0% six months earlier; and (4) The overall utilization rate for Competitive LECs was 30.4%, up from 26.9% six months earlier. Telephone Numbers Saved through Thousands-block Pooling – Through June 30, 2008, thousands- block pooling has made it unnecessary to distribute about 355 million telephone numbers. Thousands-block pooling is available in areas with the most demand for additional numbering resources. This means that telephone numbers can now be distributed in blocks of 1,000 rather than blocks of 10,000. This enables carriers to obtain the telephone numbers they need to serve their customers while allowing unneeded blocks to be made available to other carriers. Telephone Numbers Returned – As required by the Commission’s Numbering Resource Optimization Orders, carriers are returning large quantities of telephone numbers that they do not need to the NANPA so that those numbers can be assigned to other carriers with more immediate needs. In the second quarter of 2008, carriers returned 0.96 million telephone numbers to the NANPA. In the third quarter of 2008, carriers returned 1.49 million telephone numbers to the NANPA. Most Utilized Area Codes in the United States –New York’s area code 646 (which is coincident with New York City’s area code 212) is the most utilized, with 77.0% of numbers assigned to customers. Arizona’s area code 480 is next, with 75.3% of numbers assigned to customers. (The above statistics exclude area code 947, in which only three carriers are using numbers.) Customers Moving Millions of Telephone Numbers to New Carriers – Since wireless number portability began on November 24, 2003, wireline customers have moved more than 62 million telephone numbers to new wireline carriers. During the same time, wireless customers moved more than 54 million telephone numbers to new wireless carriers. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast. COURT UPHOLDS FCC’s DISMISSAL OF M2Z’s APPLICATION FOR FREE AWS-3 LICENSE: The U.S. Court of Appeals for the District of Columbia Circuit has upheld the FCC’s dismissal of a nationwide, 15-year, exclusive application of M2Z Networks to operate in the Advanced Wireless Services (AWS-3) or 2155-2175 MHz band, without the benefit of an auction. M2Z’s plan was to deliver basic wireless broadband service to most of the country free of charge, ultimately making money by charging for premium service. For the plan to work, it needed an exclusive nationwide license for the entire spectrum band for 15 years. In September 2006, M2Z amended its application with a petition for forbearance that would allow the Commission to forbear from enforcing any rules that would impede the grant of its application. The FCC subsequently dismissed M2Z’s application, along with several other ones. The D.C. Circuit concluded that “although M2Z presents a number of creative arguments, none of them has serious legal merit. The FCC Order should therefore be affirmed in all respects.” BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell. OBAMA ANNOUNCES USDA UNDER SECRETARIES: President Barack Obama has announced his intention to nominate James W. (Jim) Miller to be Under Secretary of Agriculture for Farm and Foreign Agricultural Services and Dallas P. Tonsager to be Under Secretary of Agriculture for Rural Development. Miller currently is Chief of Staff for the National Farmers Union, a position he accepted in 1999 after serving four years as Senior Analyst for Agriculture and Trade on the majority staff of the Senate Budget Committee. Miller also has served as Chief Economist for the National Farmers Union and as Vice President for Government Relations for the National Association of Wheat Growers. Miller operated a fourth- generation family farm in eastern Washington for over 20 years and served as President of the National Association of Wheat Growers in 1987. He was Co-Chairman of the Canada-U.S. Joint Commission on Grains, a federal commission established to resolve grain trade issues between the two countries. Tonsager currently serves as a board member of the Farm Credit Administration (FCA), a position to which he was appointed in 2004. He also is a member of the Board of Directors of the Farm Credit System Insurance Corporation. Prior to his appointment to the FCA, he was Executive Director of the South Dakota Value-Added Agriculture Development Center, where he coordinated initiatives to better serve producers who developed value-added agricultural projects. Tonsager was appointed by President Clinton as the South Dakota State Rural Development Director in 1993 and was named one of two outstanding state directors by USDA in 1999. INDUSTRY NORTEL MAY SELL SOME OF ITS MAJOR BUSINESSES: Nortel Networks is considering selling some of its major businesses rather than continue trying to restructure under bankruptcy protection, according to a report in The Wall Street Journal. FierceWireless reports that Nortel, which filed for bankruptcy in mid-January and has until May to restructure, is said to be in talks with some of its competitors to sell its wireless-equipment business and its enterprise telecom business. This development should be watched by clients that are counting on Nortel for equipment related to their ongoing telecom operations, or in connection with a stimulus grant project. Nortel declined to comment to either WSJ or FierceWireless, and there is nothing related to this matter posted on Nortel’s Web site. The company is said to be talking to rivals such as Nokia Siemens Networks, to sell its wireless business. Avaya and Siemens Enterprise Communications, a joint venture of Siemens and Gores Group, are said to be interested in the company's enterprise unit. Nortel's board is expected to meet next week to discuss the company's plans to emerge from bankruptcy. Nortel posted a $2.14 billion loss in the fourth quarter and a $5.8 billion loss for all of 2008. Its revenue declined 15 percent year-over-year in the fourth quarter, down to $2.72 billion. There is also a question about whether Nortel, as well as other manufacturers, will be able to supply the equipment needed to complete the projects funded under the National Telecommunications and Information Administration (NTIA) and Rural Utilities Service (RUS) broadband grants program. MARCH 31: FCC FORM 507, UNIVERSAL SERVICE QUARTERLY LINE COUNT UPDATE. Line count updates are required to recalculate a carrier's per line universal service support, and is filed with the Universal Service Administrative Company (USAC). This information must be submitted on July 31 each year by all rate-of-return incumbent carriers, and on a quarterly basis if a competitive eligible telecommunications carrier (CETC) has initiated service in the rate-of-return incumbent carrier’s service area and reported line count data to USAC in the rate-of-return incumbent carrier’s service area, in order for the incumbent carrier to be eligible to receive Interstate Common Line Support (ICLS). This quarterly filing is due March 31 and covers lines served as of September 30, 2007. (Normally this filing is due March 30, but this year, March 30 falls on a Sunday.) Incumbent carriers filing on a quarterly basis must also file on July 31 (for lines served as of December 31, 2007); September 30 (for lines served as of March 31, 2008); and December 30 (for lines served as of June 30, 2008). BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. MARCH 31: FCC FORM 525, COMPETITIVE CARRIER LINE COUNT QUARTERLY REPORT. Competitive eligible telecommunications carriers (CETCs) are eligible to receive high cost support if they serve lines in an incumbent carrier’s service area, and that incumbent carrier receives high cost support. CETCs are eligible to receive the same per-line support amount received by the incumbent carrier in whose study area the CETC serves lines. Unlike the incumbent carriers, CETCs will use FCC Form 525 to submit their line count data to Universal Service Administrative Company (USAC). This quarterly report must be filed by the last business day of March (for lines served as of September 30 of the previous year); the last business day of July (for lines served as of December 31 of the current year); the last business day of September (for lines served as of March 31 of the current year); and the last business day of December (for lines served as of June 30 of the current year). CETCs must file the number of working loops served in the service area of an incumbent carrier, disaggregated by the incumbent carrier’s cost zones, if applicable, for High Cost Loop (HCL), Local Switching Support (LSS), Long Term Support (LTS), and Interstate Common Line Support (ICLS). ICLS will also require the loops to be reported by customer class as further described below. For Interstate Access Support (IAS), CETCs must file the number of working loops served in the service area of an incumbent carrier by Unbundled Network Element (UNE) zone and customer class. Working loops provided by CETCs in service areas of non-rural incumbents receiving High Cost Model (HCM) support must be filed by wire center or other methodology as determined by the state regulatory authority. CETCs may choose to complete FCC Form 525 and submit it to USAC, or designate an agent to file the form on its behalf. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. MARCH 31: FCC FORM 508, PROJECTED ANNUAL COMMON LINE REVENUE REQUIREMENT FORM: Section 54.903(a)(1) of the FCC's rules requires each rate-of-return incumbent telecommunications carrier to provide information needed to calculate the Projected Annual Common Line Revenue Requirement for each of its study areas in the upcoming funding year to the Universal Service Administrative Company (USAC). This information must be submitted on March 31 each year, in order for the carrier to be eligible to receive Interstate Common Line Support. This collection of information stems from the Commission's authority under Section 254 of the Communications Act. The data in the form will be used to calculate the amount of support, if any, that each reporting carrier is eligible to receive from the Interstate Common Line Support Mechanism. Carriers are permitted to submit a correction to their March 31 projected carrier common line revenue requirements and supporting data from April 1 until June 30 for the upcoming funding year (July 31, 2008, through June 30, 2009). Additionally, on June 30, carriers are permitted to submit an update to the projected data for the ICLS funding year ending on that date. Permitting these revisions to projected data for current and upcoming ICLS funding years will mitigate the lag between projected and actual data filings and give carriers more meaningful opportunities to revise projections to adjust ICLS where necessary. After the June 30 correction deadline each year, any corrections to projected common line revenue requirement and supporting data shall be made in the form of true-ups, using actual cost and revenue data that a carrier must report in FCC Form 509, Annual Common Line Actual Cost Data Collection Form. (This form is due December 31.) If you are unsure whether this applies to you, please contact us. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. MARCH 31: ANNUAL INTERNATIONAL CIRCUIT STATUS REPORTS. Carriers are reminded that Section 43.82 of the Commission’s rules requires each facilities- based carrier that provides international telecommunications services to file a Circuit Status Report by March 31, 2008. The report should contain data as of December 31, 2007. The information that must be filed and filing format for the Circuit Status Report is described in detail in the Circuit Status Filing Manual. All facilities-based carriers must file a Circuit Status Report if they had any activated or idle circuits as of December 31, 2007. If carriers did not have any activated or idle circuits as of December 31, 2007, they are not required to file this report or file any letter stating that they have no circuits to report. The Filing Manual requires carriers to report the total number of activated and the total number of idle circuits using the following categories: submarine cable, satellite, and landline (cable or microwave). The Filing Manual defines international facilities-based circuits as “international circuits in which a carrier has an ownership interest. For this purpose, the term ownership interest includes outright ownership, indefeasible right of use (IRU) interests, or leasehold interests in bare capacity in an international facility, regardless of whether the underlying facility is a common or non-common carrier submarine cable or … satellite system.” The Filing Manual further explains that leasehold interests in bare capacity “are distinct from private lines leased from another reporting international carrier.” Thus, any telecommunications carrier that has leased an international circuit from another common carrier, a non-common carrier, or a foreign carrier, other than a lease of private line “service” or “capacity” from a common carrier, must file a Circuit Status Report and include that circuit in its report. Such a circuit should be reported as a facilities-based circuit, and not as a facilities-based resold circuit. Private line resellers should report their resold circuits using the Facility Codes 11, 12 and 13 as specified in the Filing Manual. Facilities-based carriers that are regulated as dominant on particular U.S. international routes under Section 63.10 must provide their circuit status information on a facility-specific basis for the dominant route only. Carriers should provide the information in a separate appendix using the same table format in the Filing Manual, but they should add a column labeled "Facility Name" after "Data field #2". Carriers are reminded to file their reports on compact disc (CD) media. The FCC will not accept reports filed on diskettes. But it will accept Excel files. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. APRIL 1: FCC FORM 499-A, TELECOMMUNICATIONS REPORTING WORKSHEET. This form must be filed by all contributors to the Universal Service Fund (USF) support mechanisms, the Telecommunications Relay Service (TRS) Fund, the cost recovery mechanism for the North American Numbering Plan Administration (NANPA), and the shared costs of local number portability (LNP). Contributors include every telecommunications carrier that provides interstate, intrastate, and international telecommunications, and certain other entities( such as private carrier paging and two-way service providers) that provide interstate telecommunications for a fee. These include but are not limited to ILECs, CLECs, resellers, MVNOs, paging companies, CMRS providers (such as cellular, PCS, and SMR providers). Even common carriers that qualify for the de minimis exemption must file Form 499-A. Entities whose universal service contributions will be less than $10,000 qualify for the de minimis exemption. De minimis entities do not have to file the quarterly report (FCC Form 499-Q), which was due February 1, and will again be due May 1. Form 499-Q relates to universal service contributions, but not to the TRS, NANPA, and LNP mechanisms. Form 499-A relates to all of these mechanisms and, hence, applies to all providers of interstate, intrastate, and international telecommunications services. Form 499-A contains revenue information for January 1 through December 31 of the prior calendar year. And Form 499-Q contains revenue information from the prior quarter plus projections for the next quarter. Block 2-B of the Form 499-A requires each carrier to designate an agent in the District of Columbia upon whom all notices, process, orders, and decisions by the FCC may be served on behalf of that carrier in proceedings before the Commission. Carriers receiving this newsletter may specify our law firm as their D.C. agent for service of process using the information in our masthead. There is no charge for this service. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast. APRIL 10: DTV EDUCATION REPORT. New 700 MHz licensees from Auction No. 73 are required to file a report with the FCC concerning their efforts to educate consumers about the upcoming transition to digital television (DTV). Last summer, we explained that the FCC’s Part 27 rules require 700 MHz licensees that won licenses in Auction No. 73 to file quarterly reports on their DTV consumer outreach efforts through the Spring of 2009. However, in an apparent contradiction, the same rules do not impose any substantive consumer education requirements on 700 MHz license holders. This situation has not changed. The reporting rule simply states that “the licensee holding such authorization must file a report with the Commission indicating whether, in the previous quarter, it has taken any outreach efforts to educate consumers about the transition from analog broadcast television service to digital broadcast television service (DTV) and, if so, what specific efforts were undertaken.” Many licensees may not have initiated 700 MHz service as of yet. However, to the extent they are also an Eligible Telecommunications Carrier (ETC) and recipient of federal USF funds, separate FCC rules found in 47 C.F.R. Part 54 (Universal Service) require ETCs to send monthly DTV transition notices to all Lifeline/Link-Up customers (e.g., as part of their monthly bill), and to include information about the DTV transition as part of any Lifeline or Link-Up publicity campaigns until March 31, 2009. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell. APRIL 20: FCC FORM 497, LOW INCOME QUARTERLY REPORT. This form, the Lifeline and Link-Up Worksheet, must be submitted to the Universal Service Administrative Company (USAC) by all eligible telecommunications carriers (ETCs) that request reimbursement for participating in the low-income program. The form must be submitted by the third Monday after the end of each quarter. It is available at: www.universalservice.org. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. MAY 1: FCC FORM 499-Q, TELECOMMUNICATIONS REPORTING WORKSHEET. All telecommunications common carriers that expect to contribute more than $10,000 to federal Universal Service Fund (USF) support mechanisms must file this quarterly form. The FCC has modified this form in light of its recent decision to establish interim measures for USF contribution assessments. The form contains revenue information from the prior quarter plus projections for the next quarter. Form 499-Q relates only to USF contributions. It does not relate to the cost recovery mechanisms for the Telecommunications Relay Service (TRS) Fund, the North American Numbering Plan Administration (NANPA), and the shared costs of local number portability (LNP), which are covered in the annual form (Form 499-A) that is due April 1. BloostonLaw contacts: Ben Dickens and Gerry Duffy. MAY 1: RATE INTEGRATION CERTIFICATION. Non-dominant inter-exchange carriers (IXCs), including facilities- based and resellers, that provide de-tariffed domestic interstate services must certify that they are providing such services in compliance with their geographic rate averaging and rate integration obligations. An officer of the company must sign this annual certification under oath. The FCC has issued the following guidelines: (1) Any carrier that provides interstate services must charge its subscribers in rural and high-cost areas rates that do not exceed the rates that the carrier charges subscribers in urban areas; (2) to the extent that a carrier offers optional calling plans, contract tariffs, discounts, promotions, and private line services to its interstate subscribers in one state, it must use the same ratemaking methodology and rate structure when offering such services in any other state; (3) an interstate carrier may depart from geographic rate averaging when offering contract tariffs, Tariff 12 offerings, optional calling plans, temporary promotions, and private line services; and (4) carriers may offer optional calling plans on a geographically limited basis as part of a temporary promotion that does not exceed 90 days. But this limited exception does not exempt optional calling plans from geographic rate averaging requirements. Clients with questions about the FCC's de-tariffing or rate integration requirements should contact us. We have a model rate integration certification letter that may be printed on your letterhead. BloostonLaw contacts: Ben Dickens and Gerry Duffy. MAY 31: FCC FORM 395, EMPLOYMENT REPORT. Common carriers, including wireless carriers, with 16 or more full-time employees must file their annual Common Carrier Employment Reports (FCC Form 395) by May 31. This report tracks carrier compliance with rules requiring recruitment of minority employees. Further, the FCC requires all common carriers to report any employment discrimination complaints they received during the past year. That information is also due on May 31. The FCC encourages carriers to complete the discrimination report requirement by filling out Section V of Form 395, rather than submitting a separate report. Clients who would like assistance in filing Form 395 should contact Richard Rubino. JUNE 30: ANNUAL ICLS USE CERTIFICATION. Rate of return carriers and CETCs must file a self-certification with the FCC and the Universal Service Administrative Company (USAC) stating that all Interstate Common Line Support (ICLS) and Long Term Support (LTS) will be used only for the provision, maintenance, and upgrading of facilities and services for which the support is intended. In other words, carriers are required to certify that their ICLS and LTS support is being used consistent with Section 254(e) of the Communications Act. Failure to file this self-certification will preclude the carrier from receiving ICLS support. We, therefore, strongly recommend that clients have BloostonLaw submit this filing and obtain an FCC proof-of-filing receipt for client records. BloostonLaw contacts: Ben Dickens and Gerry Duffy. JULY 10: DTV EDUCATION REPORT. New 700 MHz licensees from Auction No. 73 are required to file a report with the FCC concerning their efforts to educate consumers about the upcoming transition to digital television (DTV). Last summer, we explained that the FCC’s Part 27 rules require 700 MHz licensees that won licenses in Auction No. 73 to file quarterly reports on their DTV consumer outreach efforts through the Spring of 2009. However, in an apparent contradiction, the same rules do not impose any substantive consumer education requirements on 700 MHz license holders. This situation has not changed. The reporting rule simply states that “the licensee holding such authorization must file a report with the Commission indicating whether, in the previous quarter, it has taken any outreach efforts to educate consumers about the transition from analog broadcast television service to digital broadcast television service (DTV) and, if so, what specific efforts were undertaken.” Many licensees may not have initiated 700 MHz service as of yet. However, to the extent they are also an Eligible Telecommunications Carrier (ETC) and recipient of federal USF funds, separate FCC rules found in 47 C.F.R. Part 54 (Universal Service) require ETCs to send monthly DTV transition notices to all Lifeline/Link-Up customers (e.g., as part of their monthly bill), and to include information about the DTV transition as part of any Lifeline or Link-Up publicity campaigns until March 31, 2009. BloostonLaw contacts: Hal Mordkofsky and Cary Mitchell. JULY 20: FCC FORM 497, LOW INCOME QUARTERLY REPORT. This form, the Lifeline and Link-Up Worksheet, must be submitted to the Universal Service Administrative Company (USAC) by all eligible telecommunications carriers (ETCs) that request reimbursement for participating in the low-income program. The form must be submitted by the third Monday after the end of each quarter. It is available at: www.universalservice.org. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. FCC Meetings and Deadlines Mar. 19 – Public Meeting on NTIA/RUS broadband grant programs (Washington, D.C.). Mar. 19 – Deadline for reply comments on Sprint Nextel request to extend BAS relocation deadline (ET Docket No. 02-55). Mar. 20 – Deadline for comments on auction procedures for Auction No. 79 (FM Construction Permits) (AU Docket No. 0921). Mar. 23 – Deadline for filing certain information collection statements regarding NET 911 Act (PS Docket No. 09-14). Mar. 23 – Public Meeting on NTIA/RUS broadband grant programs (Washington, D.C.). Mar. 24 – Public Meeting on NTIA/RUS broadband grant programs (Washington, D.C.). Mar. 25 – Deadline for comments on FCC-USDA rural broadband strategy (GN Docket No. 09-29). Mar. 27 – Deadline for reply comments on NOI regarding FCC’s annual video competition report (MB Docket No. 07-269). Mar. 31 – FCC Form 507, Universal Service Quarterly Line Count Update, is due. Mar. 31 – FCC Form 525, Competitive Carrier Line Count Quarterly Report, is due. Mar. 31 – FCC Form 508, Projected Annual Common Line Revenue Requirement Form, is due. Mar. 31 – Annual International Circuit Status Report is due. Apr. 1 – FCC Form 499-A, Telecommunications Reporting Worksheet, is due. Apr. 1 – Revised DTV Consumer Education requirements for ETCs, MVPDs take effect. Apr. 1 – Certain sections of DTV Delay Act Omnibus Order take effect (47 C.F.R. Sections 15.124, 54.418, and 76.1630). Apr. 1 – Deadline for reply comments on auction procedures for Auction No. 79 (FM Construction Permits) (AU Docket No. 09-21). Apr. 2 – Deadline for comments on petition asking whether creditors can send auto messages to certain wireless numbers (CG Docket No. 02-278). Apr. 8 – FCC open meeting. Apr. 10 – Auction 73 winners must file quarterly report covering DTV consumer education outreach efforts for period Jan.-Mar. 2009. Apr. 11 – Deadline for FCC to act on Embarq forbearance petition regarding IP-to-PSTN voice traffic, or have it deemed granted (WC Docket No. 08-8). Apr. 13 – Deadline for reply comments on petition asking whether creditors can send auto messages to certain wireless numbers (CG Docket No. 02-278). Apr. 20 – FCC Form 497, Low Income Quarterly Report, is due. |
For those members listed in the FCC’s recent CPNI Omnibus Notice of Apparent Liability for Forfeiture (NALF), AAPC may be able to help. AAPC’s counsel has met with the staff of the Enforcement Bureau to discuss procedures for efficient and fair resolution of individual cases, without having to make a formal filing in response to the NALF by the March 26, 2009, deadline established by the FCC. As a result, members will be able, if they so desire, to engage AAPC’s counsel for their individual cases at a special rate and can utilize his experience in dealing with the FCC on these issues. Members interested in taking advantage of this AAPC benefit should contact Ken Hardman at (202) 223-3772 or by e-mail at 
One of the enduring findings of the 9/11 report was the fact that first responders on the ground in New York were unable to communicate readily with reach other in the first hours after the crisis. Congress responded by approving funds for an envisioned nationwide emergency communications system, but now lawmakers are wondering if taxpayers will ever get a truly interoperable system to solve the problem.
NEW ALERT AND RINGTONE AMPLIFIER 
The Ninth Circuit, in Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008), recently found that a public employee had a reasonable expectation of privacy in text messages sent and received on his employer-owned pager. However, the widespread news commentary stating that this case means that all text messages are considered private is overstating the court's actual holding and its real-world implications for private businesses.
— FLEX is a registered trademark of Motorola Inc. 
