BloostonLaw Telecom Update Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP [Portions reproduced here with the firm's permission.] www.bloostonlaw.com |
| Vol. 12, No. 33 | x September 23, 2009 |
 Comments on Stimulus Applications Due Oct. 28 On Monday, September 28, the filing window for incumbent carrier comments on broadband stimulus funding applications opened. During the 30-day comment period, affected incumbent carriers have the opportunity to supply the National Telecommunications and Information Administration (NTIA) and the Rural Utilities Service (RUS) with information about the broadband services they are currently pro-viding in areas, which may overlap the funding areas proposed by stimulus applicants. The agencies are relying on this process to weed out applications that propose service areas which already enjoy the mini-mum definitional requirements for broadband access as set forth in the Notice of Funds Availability (NOFA) of July 9, 2009. The filing window will remain open until October 28, 2009. Until that date, the public is able to access the agencies’ application map database to view the areas applicants are proposing to serve if they are granted stimulus funds. It is not necessary to have applied for stimulus funding in order to file comments, nor is there any indication that applicants are restricted from responding. However, only incumbent carriers are invited to comment on the applications. There are several criteria under which applicants can meet the minimum statutory requirements to receive funding, and there are many factors carriers should consider before filing a response. To this end, BloostonLaw has prepared a questionnaire to help clients develop the kind of information which should be prepared in order to make the response filing. Carriers who believe stimulus applicants may have applied for funding in their service areas should waste no time in beginning the response process. Identifying applications to respond to is a deceptively arduous task, and each application must be responded to individually. BloostonLaw contacts: Mary Sisak, 202-828-5554; John Prendergast, 202-828-5540; and Gerry Duffy, 202-828-5528. INSIDE THIS ISSUE - Stimulus application comments due Oct. 28
- FCC seeks comment on broadband deployment, adoption on tribal lands.
- Comment sought on spectrum for broadband.
- FCC seeks comment regarding customer authentication provisions of CPNI rules.
- FCC sets comment cycle for proposal to change BRS construction deadline.
FCC Seeks Comment On Broadband Deployment, Adoption On Tribal Lands As part of its National Broadband Plan (NBP), the FCC has released a Public Notice, seeking comment on identifying and remedying barriers to broadband deployment and adoption on Tribal lands. Our rural telco clients providing broadband services to Tribal lands, or en-countering problems in doing so, will want to file comments in this proceeding. An initial problem in addressing these issues is the cur-rent lack of data on the extent of broadband deployment and adoption on Tribal lands. The Commission acknowledged this lack of data in two related proceedings earlier this year – the Rural Broadband Report and the Section 706 Sixth Report NOI. The limited data from the 2007 Current Population Survey of the U.S. Census Bureau regarding adoption indicates that American Indian/Alaskan Native households have a nationwide broadband subscription rate of at most 30 percent, by far the lowest subscription rate among any ethnic group identified. Moreover, broadband subscription rates are substantially lower in rural areas. In recently filed Joint Comments, Native Public Media (NPM), an organization promoting radio broadcasting and media ownership by Native communities, and the National Congress of American Indians (NCAI), the largest national organization representing federally recognized Tribal government entities, estimate that “Tribal penetration [of broadband deployment ] hovers some-where around five percent (5%).” Request for Quantitative Data. The Commission there-fore requests that all parties submit any quantitative data, studies or analyses regarding the current extent of broadband deployment and adoption on Tribal lands. Such data beyond anecdotal information will better enable the Commission to make specific policy recommendations in the pending NPB for reducing or eliminating barriers to broadband deployment and adoption in Indian country. The Commission makes this data request and issues this Public Notice fully cognizant of the political sovereignty of the Tribes and of their rights to govern their own affairs within their own borders, as well as of “the unique legal [and trust] relationship that exists between the federal government and Indian Tribal governments, as reflected in the Constitution of the United States, treaties, federal statutes, Executive Orders, and numerous court decisions.” Broadband Deployment in Indian Country. The FCC says it understands that the low broadband subscription rates in Indian Country can be correlated with the rural nature of many of these Tribal lands and the lack of adequate broadband deployment. As NPM and NCAI note in their Joint Comments “[t]o put the population density is-sue into perspective, the United States as a whole consists of 3.79 million square miles with a population of ap-proximately 307 million people, or 81 people per square mile. Most Tribal Nations have population densities far lower than that. The Hopi Nation has a population density of 3.1 persons per square mile, the Blackfeet Nation 4.26, and the Devil’s Lake Sioux Nation, 1 person per square mile.” NPM and NCAI state that low population density equates to higher cost to deploy broadband, which has resulted in Tribal lands being underserved. They note that “Tribes have been unable to encourage meaningful service from outside entities and have been forced to become de facto carriers of last resort. This has been a costly effort for those tribes, but necessary for the provision of basic governmental services. Eight Tribes—out of 563—have had to form their own Tribally owned and operated tele-communications carriers. All eight Tribes that formed their own telecommunications entities have seen dramatic increases in service penetration rates. They average over 85% service gains in their communities (some are at 98% service connection attainment) since the formation of their own telecommunications service.” NPM and NCAI therefore conclude that “if broadband service can be delivered to Tribal lands at an affordable price, broad-band will be adopted.” The FCC seeks focused comment on the tools and re-sources available to promote broadband deployment in Indian Country, consistent with the realities of the tele-communications marketplace on Tribal lands and the fiduciary trust relationship between the federal government and the Tribes. In particular: - Are there specific lessons that can be learned from the build-out of telephone lines to particular Tribal areas that can be applied to the deployment of broadband in Tribal land?
- Are there specific examples of coordination or cooperation among Tribal, state and local governments in the build-out of telecommunications infrastructure on Tribal lands that could serve as models for the deployment of broadband?
- What specific actions can the FCC and/or other federal agencies take to encourage or facilitate greater coordination and collaboration between the FCC, other federal agencies and Tribal, state and local governments to promote broadband deployment?
Deployment and Mapping. The FCC has noted “that some state-sponsored and private mapping efforts may not encompass all areas or all providers within a particular state . . . particularly Tribal lands.” Accordingly: - What actions, if any, are states taking to include Tribal lands in their broadband mapping efforts?
- Are there jurisdictional or other reasons why states do not or cannot include the Tribes in their broadband mapping efforts?
- To what extent can data from the U.S. Census Bureau’s American Indian Tribal census tracts assist efforts to map broadband deployment and adoption in Indian Country? For example, would the overlay of data compiled by carriers and ISPs with Tribal census tract data provide a clear and accurate view of broadband penetration rates in Indian Country? What specifically are the advantages and limitations of such an approach and how would the overlays be accomplished as a practical matter?
Adoption and Digital Literacy/Education. Digital lite-racy and education are key components of broadband adoption. NPM and the NCAI have noted in their Reply Comments on the NBP NOI “that the Commission cannot create a national broadband plan without emphasizing digital literacy training for areas currently unserved or underserved.” They note that “similar to the transition to digital television, the Commission must provide consumers with a better understanding of how to effectively utilize these new capabilities.” Additionally, the Pew American Home Life Project survey found that 40 percent of those who do not use the Internet “are not interested” or view it as “a waste of time.” Accordingly: - What specific tools can the Commission and/or the Tribes utilize to promote digital literacy and education on Tribal lands?
- Are there specific Tribal facilities which are serving or could serve as training locations, e.g., computing centers, tribe “chapter houses,” schools or libraries?
- What percent of Tribal community centers, schools, and households are passed today by: a) fixed telephony; b) mobile telephony; c) cable services?
Adoption and Affordability. The Commission recently stated that another demand and sustainability factor is the affordability of broadband services to consumers. This factor may include ongoing subscription costs, computer equipment costs, and the costs of other customer premises equipment necessary to access broadband services. According to the Consumer Federation of America and the Consumers Union, only 15 percent of rural households with annual incomes less than $25,000 have broadband subscriptions, whereas 45 percent of rural households with annual incomes greater than $25,000 have broadband subscriptions. This suggests that the price of service and/or the cost of equipment can be a barrier to broadband adoption and sustainability in certain markets, including in Indian Country. Accordingly: - What can public and private entities do to pro-mote broadband adoption? Should they consider programs such as making computers available at a discount to qualifying households or dis-counting monthly service to at-need consumers on Tribal lands?
- Should programs such as Lifeline/Link Up be made available to assist in reducing the cost of broadband connectivity and service to homes in Indian Country, and if so, how should they be implemented and funded?
- In the Rural Broadband Report Acting Chairman Copps noted that communities may also want to consider ways to aggregate or consolidate demand as part of developing a strategy for a sustainable broadband network. Participants in this effort could include individual consumers, businesses, educational institutions, health care facilities, and government agencies. Entities that can function as anchor tenants with adequate demand to both spur broadband infrastructure in-vestment and ensure sustainability can function as an integral part of a rural broadband strategy. Accordingly, the FCC seeks comment on whether and how this demand aggregation approach could apply to the Tribes.
The Role of Broadband Service Providers. Qwest has recommended that “the Commission should consider a pilot program to support broadband services for low-income consumers,” presumably including rural and Tri-bal areas. Because of the typically low population density and sometimes difficult terrain of these areas however, other carriers and broadband providers have been reluctant to serve these potential subscribers. Moreover, the political and legal sovereignty of Tribal lands and the need for carriers to understand Tribal jurisdiction and to obtain rights of way over Tribal lands further complicate entry of broadband providers. Accordingly, the FCC seeks comment on: - The practical utility of establishing and promoting pilot programs to support broadband services such as the one proposed by Qwest? What role can or should the Commission play in establish-ing such a pilot or would the pilot be better administered by industry, some other non-governmental entity or via some type of indus-try/consumer advocacy partnership?
- What actions, if any, can the FCC and/or the Tribes take to facilitate carrier entry into Tribal areas for the purpose of providing affordable and sustainable broadband service?
All comments should refer to GN Docket Nos. 09-47, 09-51, and 09-137. Please title comments responsive to this Notice as “Comments – NBP Public Notice # 5.” Further, the FCC strongly encourages parties to develop responses that adhere to the organization and structure of the questions in this Notice. Comments are due November 9, and replies are due December 9. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. COMMENT SOUGHT ON SPECTRUM FOR BROAD-BAND: The FCC has released a Public Notice, seeking focused comment on the sufficiency of current spectrum allocations in spectrum bands, including but not limited to the prime spectrum bands below 3.7 GHz, for purposes of the Commission’s development of a National Broad-band Plan (NBP). The FCC notes that the issue has been raised that the United States will not have sufficient spectrum available to meet demands for wireless broad-band in the near future. In this Public Notice, therefore, the FCC seeks additional comment on the fundamental question of whether current spectrum allocations are adequate to support near- and longer-term demands of wireless broadband. The FCC requests that commenters provide detailed, fact-based responses and to the extent possible provide quantitative data and analytical justification for their arguments. The Commission has recently issued a Notice of Inquiry (NOI) on wireless innovation and investment, which asks a number of questions about ways to make more productive use of spectrum. The FCC will review comments in that proceeding in addition to the comments submitted in response to this Public Notice. Questions commenters should address include the following: (1) What spectrum bands are best positioned to support mobile wireless broadband?
(2) What spectrum bands are best positioned to support fixed wire-less broadband?
(3) What spectrum bands are best positioned to support fixed wireless broadband? And (4) What is the ability of current spectrum allocations to sup-port both the fixed and mobile wireless backhaul market?
Comments in this GN Docket Nos. 09-47, 09-51, 09-137 (NBP Public Notice #6) proceeding are due October 23, and replies are due November 13. Blooston-Law contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell. FCC SEEKS COMMENT REGARDING CUSTOMER AUTHENTICATION PROVISIONS OF CPNI RULES: The FCC seeks comment on a petition filed by STi Pre-paid, LLC, asking the Commission to issue a declaratory ruling confirming that telecommunications carriers providing service via prepaid calling cards satisfy the requirement to authenticate a customer under the Commission’s customer proprietary network information (CPNI) rules when the customer can provide the personal identification number (PIN) associated with the long distance ser-vices and related CPNI. In the alternative, STi Prepaid requests that the Commission find good cause to waive its CPNI rules to allow telecommunications carriers pro-viding services through the use of prepaid calling cards to use a customer-provided PIN as authentication of that customer in satisfaction of the Commission’s requirements. The CPNI rules were adopted by the Commission in the EPIC CPNI Report and Order released on April 2, 2007. According to STi Prepaid, given the nature of prepaid long distance services, STi Prepaid does not have sufficient information regarding the consumers us-ing its long distance services to authenticate customer-initiated telephone requests for call detail information, as required by the Commission’s CPNI rules. Comments in this CC Docket Nos. 96-115 and WC Docket No. 04-36 proceeding are due October 26, and replies are due November 10. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. FCC SETS COMMENT CYCLE FOR PROPOSAL TO CHANGE BRS CONSTRUCTION DEADLINE: The FCC has established a comment cycle for its proposal to require applicants that win Broadband Radio Service (BRS) licenses in Auction 86, and any subsequent auction, to demonstrate substantial service on or before four years from the date of license grant (BloostonLaw Telecom Update, September 16). Further, the Commission seeks comment on a proposed clarification to the substantial service rule applicable to the BRS and to the Educational Broadband Service (EBS). The Commission's proposals—in this Third Further Notice of Proposed Rulemaking (FNPRM)—would ensure that spectrum in the 2.5 GHz band is put in use and would promote the provision of innovative services and rapid service to the public. Comments in this WT Docket No. 03-66, RM-10586 proceeding are due October 13, and replies are due October 23. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Cary Mitchell, and Richard Rubino. COMMENT SOUGHT ON BROADBAND OPPORTUNITIES FOR SMALL AND DISADVANTAGED BUSINESSES: The FCC has asked for data on the current state of usage and penetration of broadband as it applies to small and disadvantaged businesses (SDBs)—i.e., small entities, women and minority-owned businesses, including rural businesses. Commenters should address the following: (a) What percentage of SDBs currently use broadband? What are the current speeds and prices of these services? What applications are being run over these connections?
(b) What obstacles prevent SDBs from taking advantage of broadband technology: (i) lack of available broadband; (ii) lack of affordable broadband or budgetary constraints; (iii) digital literacy concerns; or (iv) social/cultural considerations?
(c) For SDBs in traditional businesses that may not yet rely on broadband, such as car repair shops, dry-cleaners, small grocery store owners, and tool and die makers, how can broadband improve their businesses? What needs to be done to encourage such businesses to utilize broadband technology?
(d) Are there data regarding how many new jobs have been created when SDBs take advantage of broadband? What is the impact of broadband adoption on SDB productivity and innovation? How do these data vary across sectors?
(e) What role should institutions such as the Federal Communications Commission, the Small Business Ad-ministration, the Department of Labor, local Chambers of Commerce, community colleges and other community organizations play in ensuring that SDBs take better ad-vantage of broadband technology?
(f) What challenges do SDBs owned by limited-English speakers face in using broadband technology?
(g) As government rolls out broadband stimulus funds to reach unserved and underserved communities and as broadband construction occurs generally, how do we ensure that SDBs are able to participate in the construction process and benefit from that construction?
(h) How do we ensure that SDBs participate as information and content providers on the Internet?
(i) How can public/private partnerships assist the growth of SDBs and their use of broadband technology? Please provide specific examples. Should the Commission facilitate creation of public-private partnerships for this purpose? Comments in this GN Docket Nos. 09-47, 09-51, 09-137 (NBP Public Notice #9) proceeding are due November 2. There is no reply date.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. ADDITIONAL COMMENT SOUGHT ON PUBLIC SAFETY, HOMELAND SECURITY, CYBERSECURITY ELEMENTS OF NATIONAL BROADBAND PLAN: The FCC is seeking additional comment regarding issues raised in the Broadband Notice of Inquiry regarding (1) public safety mobile wireless broadband networks; (2) next generation 911; (3) cyber security; and (4) alerting. Comments in this GN Docket Nos. 09-47, 09-51, 09-137 (NBP Public Notice #8) proceeding are due November 12. There is no reply date. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Cary Mitchell, and Richard Rubino. COMMENT SOUGHT ON GOVERNMENT CONTRIBUTION TO BROADBAND: The FCC has released a Public Notice, seeking comment on the contribution of federal, state, tribal, and local government to broadband deployment and adoption. The Commission is particularly interested in government broadband initiatives, assets and policies, barriers or detriments, etc. Comments in this GN Docket Nos. 09-47, 09-51, 09-137 (NBP Public Notice #7) proceeding are due November 6. There is no reply date. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. FCC ANNOUNCES MANDATORY ELECTRONIC DIS-BURSEMENT OF UNIVERSAL SERVICE PAYMENTS: The FCC has announced that pursuant to the Debt Collection Improvement Act of 1996 (DCIA), all federal universal service support payments must be made by electronic funds transfer. These payments include payments from the high-cost, low-income, schools and libraries, and rural health care universal service support mechanisms. Recipients of universal service support payments shall provide their financial institution information and other relevant information on the FCC Form 498, Service Provider Identification Number and Contact Information Form, which is currently being revised to conform to the requirements of the DCIA. The revised FCC Form 498 will become effective this fall. After the revised information collections in the FCC Form 498 have been ap-proved by the Office of Management and Budget, the Wireline Competition Bureau will issue a further public notice announcing the effective date for the electronic payment requirement. After the effective date, if a recipient of universal service payments fails to provide financial institution information sufficient to enable payment through electronic funds transfer, the Universal Service Administrative Company (USAC) will not make universal service payments to that entity. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. |
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