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. 13, No. 34 | August 27, 2010 |
 In Memoriam:
Telecom Pioneer Larry Garvey Passes Away Telecom pioneer Larry Garvey, age 73, died on Monday, August 16th, due to complications from ALS. Larry and his brother Don started meagerly, establishing an answering service for physicians in New Orleans several decades ago, taking turns sleeping on a cot in the garage to answer calls for their customers. With the advent of paging technology, Larry and his brother saw the potential for expanding their business, and founded Radiofone as one of the first paging carriers. After building a successful paging business centered around quality customer service, Radiofone then obtained the New Orleans Block A cellular license through a comparative hearing. Radiofone was able to defeat several opponents in the hearing, all of which were large, publicly traded corporations. Radiofone was able to hold its own against its RBOC-owned cellular competitor for decades, and was the last of the family-owned cellular operations in the top-30 markets before being acquired in 1999. Larry was a past president of the National Association of Radiotelephone Systems (which became Telocator and later PCIA), and was the recipient of many awards for entrepreneurship, leadership and his pioneering efforts in the telecommunications industry. Larry is survived by his wife of 52 years, three children and five grandchildren. A native of New Orleans, he attended Loyola University. Larry engaged in many charitable, civic and Catholic organizations. Larry was an avid outdoorsman and conservationist, as well as a master duck carver and woodworking craftsman. He was a longtime client and friend of the Blooston firm, and will be missed. |
INSIDE THIS EDITION:
G-MAIL USERS MAKE ONE MILLION CALLS IN FIRST 24 HOURS |
FiberCloud Unveils Service Options for Rural Telcos During OPASTCO With the OPASTCO Summer convention being held in Seattle last month, Seattle-based FiberCloud (a subsidiary of Whidbey Telephone Company) was able to demonstrate to the rural telecom industry how rural carriers can offer advanced services to their subscribers that will increase revenues and customer satisfaction. This message was well-received amidst the potential challenges facing the rural telecom industry, like reduced access charges and USF reform faced by the industry. FiberCloud allows any independent telecom carrier to offer several advanced software services to its customers, using the carrier’s own brand name. These services are provided from an ultra-secure facility in downtown Seattle using Cloud-hosted technology, and include features such as: - Microsoft Exchange business class email Mobility servers
- Colocation
- Email archiving
- Microsoft SharePoint
- PC data backup and protection
- Secure large file transfer
Customized solutions can be tailored to particular classes of customers, such as financial institutions, construction firms, or small businesses. FiberCloud has already established relationships with independent telcos across the county, and hopes that others will take advantage of the opportunity to offer innovative services to their customers without the substantial outlay of startup expenses involved in building their own network capabilities. Additional information about FiberCloud and its services can be viewed at www.fibercloud.com. BloostonLaw contacts: John Prendergast and Hal Mordkofsky. Record Shows Widespread Opposition to FCC Renewal, Discontinuance and Partitioning Rule Changes BloostonLaw submitted reply comments this week concerning the FCC’s proposal to change the rules governing license renewal, discontinuance of operation and partitioning of licenses. The BloostonLaw comments point out that there is widespread industry agreement that the FCC should refrain from adopting its proposed compliance disclosure requirement, as this will unnecessarily confound a process that is working well, and may be contrary to the Communications Act. There is also widespread industry agreement that the requirement to report violations by any “affiliate” is overly broad, since it could include not only related companies but also joint venture partners, companies with which the licensee has certain contractual relationships, and companies with which the licensee shares certain facilities. Moreover, virtually every commenter agreed that the new renewal requirements must be clarified, and should not be applied retroactively to existing licenses. NTCA and other elements of the rural telecom industry supported the BloostonLaw comments. While the record did not contain complete agreement on how the new requirements should be applied to Part 90 private user licensees, BloostonLaw continued to urge that these licensees be exempt from compliance. NTCA and others supported BloostonLaw’s call to retain the current build out options for partitionees/disaggregatees, at least in rural areas. If a rural telecom carrier that wishes to partition a remote area is required to meet the same buildout standard as the overall licensee, despite the rugged terrain and low population density or the area to be partitioned, such transactions simply will not happen, to the detriment of the public. BloostonLaw contact: John Prendergast and Cary Mitchell. FCC Requests Input on Broadband Deployment The FCC has requested data and information by September 7, 2010, to assist in its determination of whether broadband is being deployed to all Americans in a reasonable and timely fashion in connection with its annual broadband deployment report pursuant to Section 706 of the Communications Act. Of particular note, the FCC seeks comment on a number of issues related to its recent inquiries on universal service changes. Specifically, the FCC seeks comment on the use of the model developed by the FCC staff for the National Broadband Plan in connection with the 706 Report. This could be a backdoor attempt to legitimize the model and institutionalize its use at the FCC. In addition, the FCC seeks comment on its conclusion in the Sixth Broadband Deployment Report (released in June 2010) concerning the number of Americans without access to broadband. Whereas the Model estimated that 14 million Americans are without access to broadband, in the Report the FCC estimated that 24 million Americans are unserved, based on data submitted in Form 477. An increase in the estimated number of Americans without access to broadband could be used to improve the FCC's rationale for drastic universal service changes. Accordingly, at a minimum, we encourage all of our clients who filed comments pointing out the deficiencies in the model and in the FCC's conclusions concerning broadband availability in the universal service docket to refile those aspects of their comments in this proceeding. The FCC also requests comment on the following issues: 1. Should the terms "advanced telecommunications capability" and "broadband" continue to be treated synonymously in the report? 2. Should the FCC keep the broadband benchmark as an actual transmission speed of at least 4 Mbps down and 1 Mbsp up, as adopted in the Sixth Broadband Deployment Report, or should the benchmark be revised upward? Should the benchmark be revisited every 4 years? 3. How should the FCC interpret what it means for broadband to be "available?" What factors should the FCC use to determine whether broadband is available? 4. What is the relationship between the Model developed by FCC staff in the National Broadband Plan and the FCC's ongoing responsibilities under Section 706? What are the best sources of data to populate the Model? Are the methodologies used in the Model "reasonable" for purposes of the 706 Report? Should the methodologies be changed? 5. Is there evidence that the estimate of unserved Americans generated by the Model (14 million) or by the Form 477 data (24 million) is more accurate? Does it remain true that 14 to 24 million Americans remain without broadband access? 6. Should the proxies used by the FCC for speed tiers and broadband availability reasonable? 7. What is the relationship between the National Broadband Map being developed by NTIA and this Inquiry? 8. How can the information gathered in the FCC’s proceeding on measuring data on the performance of mobile broadband services be used in the FCC’s assessment of broadband availability? 9. In the Sixth Broadband Deployment Report, the FCC concluded that broadband was not being reasonably and timely deployed to all Americans. The FCC seeks comment on this conclusion. 10. Section 706 of the Act requires the FCC to take actions to accelerate broadband deployment if it finds that broadband is not available to all Americans in a reasonable and timely manner. The FCC seeks comment on the best actions that should be taken to accelerate broadband availability to all Americans.
BloostonLaw contacts: Ben Dickens, Gerry Duffy and Mary Sisak. Google Gmail Users Make One Million Calls in 24 Hours PC World and other sources report that Gmail users made over a million calls in the first 24 hours that Google’s newest feature, Gmail phone calling, was available. The feature, which is currently only available to U.S. Gmail users, allows users to place free phone calls anywhere in the United States and Canada, and offers significantly reduced rates for international calls for countries such as the United Kingdom, France, Germany, Argentina, China, and Japan. International rates are as low as two cents per minute. It is anticipated that Google may start charging for domestic calls once the service catches on. Google had already joined the parade of competitive sources of phone service with its introduction of “Google Voice”, but the new service targets the approximately 175 million Gmail users. BloostonLaw contacts: Ben Dickens, Gerry Duffy and Mary Sisak Legislation Would Mandate FM Receivers for All Wireless Phones In an attempt to reach an accord with recording artists and record labels, the National Association of Broadcasters (NAB) has been lobbying for legislation which would mandate the inclusion of FM transmitters in all cellular handsets. Currently, radio is not obligated to pay royalties to artists or record labels for the songs they play (an exemption in copyright law created with the understanding that the free advertising that comes with airplay was sufficient). About a year ago, however, artists and record labels (represented primarily by RIAA and musicFIRST) began actively pushing for the passage of the Performance Rights Act, which would require the stations to pay performance rights fees to both groups. The legislation has been introduced several times, but has been vigorously opposed by the NAB and has not yet passed. The most recent development in this struggle has the NAB proposing a modification to the Performance Rights Act which would cap the total annual performance rights fees and mandate the inclusion of FM capability in every cellular handset. Stifel Nicolaus analyst Rebecca Arbogast was quoted in USA Today saying that a bill including the radio chip requirement "would have a good chance, given that key lawmakers asked the (music and radio industries) to negotiate a deal." Many groups have spoken out against the FM requirement, particularly CTIA and the Consumer Electronics Association (CEA). CTIA VP of Government Affairs Jot Carpenter has been quoted saying, “What should happen is the performance rights advocates and the broadcasters ought to go off and settle their problems in a way that doesn't involve us. We’re not looking to be a part of that debate or discussion or legislation. We would not support an effort to draw us into those discussions.” Carpenter continued, “I don’t see how adoption of an FM chip mandate helps to resolve those issues. I think NAB would like to use this as a vehicle to get that done. It’s been a long-standing public policy goal of theirs. But if they push it we’ll work to frustrate it. We think it’s a bad idea and it shouldn't happen.” Consumer Electronics Association President Gary Shapiro also weighed in earlier this week, saying "Forced inclusion of an additional antenna, processor and radio receiver will compromise features that consumers truly desire, such as long battery life and light weight, reducing product performance, mandating inclusion of features consumers don't want." On August 23, several associations (including CTIA and the CEA) sent a letter to the Chairmen and Ranking Members of the U.S. House and Senate Judiciary Committees urging them to resist efforts to include an FM technology mandate for mobile devices in any legislation addressing an unrelated conflict between the broadcast and recording industries over royalties. The associations wrote, “Calls for an FM chip mandate are not about public safety but are instead about propping up a business which consumers are abandoning as they avail themselves of new, more consumer-friendly options … It is simply wrong for two entrenched industries to resolve their differences by agreeing to burden a third industry — which has no relationship to or other interest in the performance royalty dispute — with a costly, ill-considered and unnecessary new mandate.” The associations made three main arguments against the legislation: first, mandating that every wireless device include an FM chip would require consumers to pay more for a function that they may not desire or ever use; second, the groups that are parties to the discussions over the performance rights royalty issue lack any expertise in the development of wireless devices and are in no position to dictate what type of functionality is included in a wireless device; third, development by the technology industry and government of a mobile broadcast emergency alerting system makes the requirement unnecessary. On August 25, NAB Executive Vice President of Communications Dennis Wharton made three arguments of his own in response to criticisms of the proposal via the company’s official blog site. First, Mr. Wharton argued, FM radio is a superior method of distributing emergency alerts; second, Wharton says that users actually demand this functionality; third, he claims it will open new revenue streams for operators, and reduce their bandwidth load. We will continue the monitor the issue as it unfolds. BloostonLaw contacts: John Prendergast, Cary Mitchell, Sal Taillefer FCC Seeks Comment On National Broadband Cybersecurity Roadmap Comments Due: September 23, 2010 The Federal Communications Commission is requesting comments on its proposal to create a “Cybersecurity Roadmap” which would be used to (a) identify vulnerabilities to communications networks and/or end-users and (b) develop countermeasures and solutions in preparation for and response to cyber threats and attacks in coordination with federal partners. This proposal is based upon a recommendation in the FCC’s National Broadband Plan for the FCC to address the issue of cybersecurity. Under the National Broadband Plan recommendation, the proposed roadmap should address the five most critical cybersecurity threats to the communications infrastructure and its end-users and develop a two-year plan (which would include milestones) for addressing those threats. The FCC believes that the roadmap must establish a plan for it to address vulnerabilities to “core Internet protocols” and threats to end users, including: consumers; small, medium and large businesses; as well as public safety and governmental users at all levels. Some of the questions that the FCC is requesting public input on are: 1. What are the most vital cybersecurity vulnerabilities for communications networks or users? 2. How can these vulnerabilities be addressed? 3. What role should the FCC play in addressing them? 4. What steps should the FCC take, if any, to remediate them? 5. If the FCC does not play a role in addressing these vulnerabilities, what agency or entity should be tasked with fulfilling that role? 6. How should the FCC coordinate its efforts with other agencies?
While the filing of comments in a confidential manner is not required in this proceeding, BloostonLaw believes that any comments that describe vulnerabilities and/or potential solutions should be filed with a request for confidential treatment in order to prevent information from being put to nefarious uses. Comments in this proceeding are due September 23, 2010. BloostonLaw contacts: Richard Rubino, Cary Mitchell, Gerry Duffy GAO REPORT: “Enhanced Data Collection Could Help FCC Monitor Competition in Wireless Industry” The Government Accountability Office (GAO) released a report on August 26, 2010 about the level of competition in the wireless industry. The report, which discussed how the wireless industry has changed in the last 10 years, found that it is increasingly difficult for small and regional wireless providers to compete in an industry that is consistently growing more and more consolidated. Although wireless use has increased tremendously and consumers have benefited from lower prices and better coverage, small and regional carriers face many difficulties entering and competing in the wireless market. Challenges include: “securing subscribers, making network investments, and offering the latest wireless phones necessary to compete in this dynamic industry.” Acquiring spectrum can be especially challenging for smaller carriers, and the report acknowledges that FCC policies often favor large carriers. Small carriers also struggle with entry barriers constructed by large carriers, particularly early termination fees, handset exclusivity and high switching costs. According to the Report: Concentration in the wireless market has reached a point where four giant companies (Verizon, AT&T, T-Mobile and Sprint Nextel) serve 90% of wireless customers. Small carriers not only fight to attract new customers, but they struggle to keep existing customers from switching to larger carriers. Without a sustainable rate of new subscribers, small carriers have trouble securing investment. Without large ongoing investments, small carriers cannot provide the fastest service, purchase the best equipment or obtain lucrative handset contracts. Many consumers now care more about handset availability than about service quality or price, and often consumers do not even consider the smaller carriers if they do not offer the most desirable handsets. The report addresses the challenges that the FCC’s spectrum policy creates for small and regional wireless providers. Spectrum is an essential input for wireless services, and report recognizes that some small carriers feel priced out of spectrum auctions due to the size of the spectrum blocks. Even if spectrum blocks were smaller, the large carriers still have a significant financial advantage in auctions. The large carriers often do not have incentives to invest in rural areas whereas a smaller carrier may but is not able to afford the entire license. The report discusses that some small carriers favor imposing spectrum caps, but designing a fair spectrum cap policy would be difficult for the FCC and the large carriers are generally against caps. Other problems identified in the report include the ineffectiveness of spectrum bidding credits, low competition for special access in rural areas, consumer lock-in with large carriers, burdensome local zoning policies that delay network development, and the high costs of rural infrastructure construction especially in rough terrain. The report identifies several areas where the FCC should consider gathering more information in future wireless market studies: prices, special access rates, capital investments, and the role of device and equipment costs in consumer choice. Obtaining this information will help the FCC learn more about the true state of competition in the wireless industry. Some of the interesting changes in the wireless industry since 2000 mentioned in the report include an increase in wireless penetration from 38% to 91%, an annual increase in the use of prepaid subscribers, and the beginning of a significant shift from wireless as voice service to a “datacentric market” due to the growing popularity of smart phones. BloostonLaw contacts: John Prendergast, Hal Mordkofsky FCC CREATES OFFICE OF NATIVE AFFAIRS AND POLICY The FCC recently announced that it is creating an Office of Native Affairs and Policy in the Consumer and Governmental Affairs Bureau (CGB) to help achieve several goals in the National Broadband Plan pertaining to telecommunications in Native and Tribal communities. The purpose of this new office is to help the FCC improve government-to-government collaboration with Tribal leaders and increase Tribal participation in telecommunications policymaking. The office will encourage the deployment of modern telecommunications services in Native American communities and “serve as the official Commission liaison for ongoing consultation, coordination, and outreach to the American Indian, Alaska Native Village and other Native communities.” In addition to increasing and improving government-to-government communication between the FCC and Federally-recognized Tribal governments, the office will also work with state and local governments, private organizations and other Federal agencies that deal with Native American interests. The office will be responsible for making policy recommendations and working within the FCC to ensure that tribal community telecommunications needs and concerns are addressed. The Office of Intergovernmental Affairs (IGA) currently handles some tribal telecommunications affairs, including responsibility for the Indian Telecommunications Initiative. However, no IGA staff members work exclusively with Tribal governments on their unique issues. The new office will significantly expand the IGA’s responsibilities. The Bureau will appoint an Office Chief and the office will include approximately six staff positions, some of which may be modifications of IGA positions. Commissioner Michael J. Copps believes that creating this office is a significant achievement, and overcoming barriers to effective coordination with Tribal communities is a major objective in the National Broadband Plan. The office will help facilitate the development of trusting and effective relationships between Tribal leaders, advocates and the FCC so that Native Americans can receive social, economic, educational, health care and public safety benefits from high-quality modern telecommunications services. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. This newsletter is not intended to provide legal advice. Those interested in more information should contact the firm. | 
CHICAGO, IL, August 27, 2010 (IAFC 2010, Booth 4450) — Harris Corporation (NYSE:HRS), an international communications and information technology company, today introduced the Harris GR-100 System, a wireless location solution that tracks and transmits the location of firefighters and first responders while they are inside buildings, enabling on-scene commanders to better coordinate efforts and monitor personnel.
e-mail: 
Click to e-mail 
II 1 G EEx ia IIA T4 
