Selected portions of the BloostonLaw Telecom Update, and/or the BloostonLaw Private Users Update — newsletters from the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP are reproduced in this section with the firm's permission.
| BloostonLaw Telecom Update || Vol. 17, No. 2 || January 15, 2014 |
CPNI Certifications Due March 3
The annual Customer Proprietary Network Information (CPNI) certification filing deadline falls on March 3, 2014 this year, since the usual March 1 deadline is a Saturday. As the deadline approaches, BloostonLaw will remind its retainer clients, and report on any changes to the reporting template format. Virtually every year since the adoption of the CPNI reporting requirement, the FCC has tinkered with the report format shortly before the deadline. For this reason, our clients will want to wait until the FCC issues this year's Public Notice reminder of the CPNI deadline before completing their certification for Calendar Year 2013 and sending it to us for filing. The FCC normally issues a Public Notice during the January 24 to February 7 period that reminds carriers of the March filing deadline and provides the approved template for that year's filing.
DC Circuit Orders Temporary Halt to Net Neutrality Blocking and Discrimination Rules
In a decision released January 14 in Verizon v. FCC, the United States Court of Appeals for the District of Columbia Circuit upheld the Disclosure rules adopted in the FCC's 2010 Open Internet Order, but vacated the Anti-Blocking and Anti-Discrimination rules adopted therein, i.e., the heart of the FCC's "net neutrality" principle.
The Disclosure rules require both fixed and mobile broadband providers to publicly disclose accurate information regarding their network management practices, performance and commercial terms of service. The Anti-Blocking rules prohibited: (a) fixed broadband providers from blocking lawful content, applications, services or non-harmful devices (except where such blocking constitutes "reasonable network management"); and (b) mobile broadband providers from blocking access to lawful websites and applications that compete with their voice or video telephony services (again, except where such blocking constitutes reasonable network management). The Anti-Discrimination rules applied only to fixed broadband providers, and prohibited them from unreasonably discriminating in the transmission of lawful network traffic over a customer's broadband Internet access service (except where such actions constitute reasonable network management).
The Court held that Sections 706(a) and 706(b) of the Communications Act (which were added by the 1996 Act to enable the FCC to encourage or accelerate the deployment of advance telecommunications capabilities by promoting competition and by removing barriers to infrastructure investment) give the FCC statutory authority to promulgate rules governing the treatment of Internet traffic by broadband service providers, because such rules encourage the deployment of broadband infrastructure.
However, the Court vacated the Anti-Blocking and Anti-Discrimination rules because they imposed what were effectively Title II common carrier obligations upon broadband providers when the FCC had instead classified broadband providers as "information service providers" that are not subject to regulation as common carriers.
Once the Court's mandate issues, the Anti-Blocking and Anti-Discrimination rules will no longer be in effect. The FCC may appeal the DC Circuit decision to the Supreme Court. If the Supreme Court accepts the appeal, it could affirm the DC Circuit decision, or reverse it in whole or part and order the FCC rules to be reinstated.
In addition, the FCC now clearly has Section 706 authority to adopt alternative rules governing the treatment of Internet traffic by broadband service providers. It could initiate a new rulemaking looking toward the adoption of alternative blocking, discrimination or other Internet traffic control rules that would be designed to not constitute common carrier regulation (for example, by allowing broadband service providers to make "individualized" decisions on how to handle the traffic of various entities). Or the FCC could reconsider its prior decisions regarding the classification of broadband providers, and determine instead that they are common carriers subject to Title II regulation (with or without forbearance regarding certain common carrier obligations).
The DC Circuit decision will likely be viewed as a setback for the former Genachowski FCC, which appeared to have viewed the Open Internet Order as one of its major accomplishments. The Court's majority seemed to go out of its way in several instances to indicate its pique at the FCC's interpretation of its 2010 Comcast Corp. v. FCC decision that had previously limited FCC regulation of broadband providers, and to point out errors and omissions in the FCC's appellate arguments. It will be interesting to see what, if any, impact this decision will have upon the Tenth Circuit's pending consideration of the FCC's November 2011 USF/ICC Order.
DC Circ. Stays Portion of FCC Inmate Phone Call Rate Rule
The United States Court of Appeals for the DC Circuit has stayed three aspects of the FCC's order setting rates and procedures for interstate inmate calling services (ICS) pending the court's resolution of various petitions for review. Specifically, the court stayed the FCC's rule requiring interstate ICS rates to be cost-based; setting a safe-harbor rate for interim interstate ICS rates; and establishing a requirement that all ICS providers must submit a report to the FCC providing information regarding their interstate and intrastate inmate calling services.
The court did not stay the FCC's rules setting an interim rate cap on interstate ICS rates or establishing restrictions on charges for ICS telecommunications relay service calling and prohibiting billing-related call blocking.
In a joint statement on the court's decision, FCC Chairman Tom Wheeler and Commissioners Mignon Clyburn and Jessica Rosenworcel said:
We are pleased that millions of families will finally see relief from outrageous rates for inmate calling services when the interim rate caps of $0.25 for collect calls and $0.21 for debit calls go into effect in February 2014. These families have been forced to pay exorbitant rates for far too long. Although we are disappointed that the court granted a partial stay on other aspects of the Inmate Calling Services Order, we look forward to a hearing on the merits soon, and to adopting further reforms quickly.
FCC Announces Duty to Query Lifeline Database
On January 14, 2014, the FCC's Wireline Competition Bureau (WCB) released a Public Notice informing all authorized entities, including ETCs, of their obligation to begin querying the National Lifeline Accountability Database (NLAD) to determine if a prospective subscriber is currently receiving Lifeline-supported service. The duty of authorized entities to query the NLAD for each prospective subscriber commences in accordance with the NLAD Migration Schedule released by USAC, but no sooner than February 13, 2014 (30 days from the release of the Notice). Under the Migration Schedule, Maryland, Arkansas, Louisiana, Oklahoma, and Washington will be the first to start using the new database.
The WCB also reminded ETCs of their ongoing obligation to collect, and provide to the NLAD, the following information for each new and existing Lifeline subscriber:
- The subscriber's full name;
- Full residential address;
- Date of birth;
- Last four digits of the subscriber's Social Security number, or of the subscriber's Tribal Identification number if the subscriber is a member of a Tribal nation and does not have a Social Security number;
- The telephone number associated with the Lifeline service;
- The date on which the Lifeline service was initiated;
- The date on which the Lifeline service was terminated, if it has been terminated;
- The amount of support being sought for that subscriber; and
- The means through which the subscriber qualified for Lifeline.
Comment Sought, Hearing Held on Communications Act Update
On January 8, 2014, House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) and Communications and Technology Subcommittee Chairman Greg Walden (R-Ore.) announced that they are seeking public input as they begin work to review and update the Communications Act. Specifically, they are seeking responses from the public to a series of questions posed in a white paper focusing on broad thematic concepts for updating the Communications Act. Responses are due by January 31.
The five questions posed in the white paper are:
- The current Communications Act is structured around particular services. Does this structure work for the modern communications sector? If not, around what structures or principles should the titles of the Communications Act revolve?
- What should a modern Communications Act look like? Which provisions should be retained from the existing Act, which provisions need to be adapted for today's communications environment, and which should be eliminated?
- Are the structure and jurisdiction of the FCC in need of change? How should they be tailored to address systemic change in communications?
- As noted, the rapidly evolving nature of technology can make it difficult to legislate and regulate communications services. How do we create a set of laws flexible enough to have staying power? How can the laws be more technology-neutral?
- Does the distinction between information and telecommunications services continue to serve a purpose? If not, how should the two be rationalized?
The House Subcommittee on Communications and Technology also held a hearing on January 15, at 10:00 a.m. in 2123 Rayburn House Office Building, entitled "#CommActUpdate: Perspectives from Former FCC Chairmen," which can be viewed here .
The witness panel for the hearing consisted of four former FCC Chairmen: the Honorable Richard Wiley (1970-1977); the Honorable Reed Hundt (1993-1997); the Honorable Michael Powell (2001-2005); and the Honorable Michael Copps (Acting Chairman, January – June 2009). Copies of their written testimony can be found here .
Since 2014 is a congressional election year, meaning that next year a new congress will take over, BloostonLaw believes it unlikely that we will see a draft Communications Act bill this year despite these initial efforts.
Law & Regulation
Federal Government Steps Up Debt Collection Activities
As we previously reported to our clients in connection with last year's Regulatory Fee Program, the FCC and the Federal Government have become more aggressive in their debt collection activities. Over the last few weeks, we have seen instances where the FCC has transferred delinquent debts to the US Treasury for collection, even where the amounts in question were relatively meager. This goes above-and-beyond the FCC's Red light program which precludes those with delinquent debts to the FCC from receiving any actions or benefits from the FCC until the debts are cleared.
The debts that the FCC has transferred to the US Treasury include penalties and interest imposed by the FCC as well as penalties and interest that have been added by the US Treasury. As a result, what might have initially been a relatively small debt could increase substantially over time. The collection letters from the US Treasury clearly state that the Federal Government will pursue additional collection action and impose additional charges until the debt is paid. Additional collection actions could ultimately lead to the filing of a law suit in state or Federal court.
If you receive a collection letter from the FCC or from the US Treasury indicating that a debt is owed to the FCC, please contact us immediately so that we can assist you in determining what the debt is for and whether or not it is valid.
As indicated above, once the FCC has determined you are delinquent on a debt, your company (and any affiliates that it has tied to your FRN number or federal Tax Payer Identification Number) will not receive any FCC benefits until the debt is resolved — either by payment or cancellation. As a result, until this "red light" status is lifted, you would not be able to receive favorable action on any license applications or tariff requests. Additionally, you could also be barred from receiving benefits from USAC that you otherwise might be entitled.
Senate Hearing on 911 Location Data
The U.S. Senate Committee on Commerce, Science, and Transportation has announced that the Subcommittee on Communications, Technology, and the Internet will hold a hearing on Thursday, January 16, 2014, at 10:30 a.m. titled, "Locating 911 Callers in a Wireless World." The Subcommittee will focus on the unique location accuracy issues associated with calling 911 from wireless phones.
The hearing will be held in the Russell Senate Office Building in room 253, and will be webcast live via the Senate Commerce Committee website . The witness panel for this hearing will include Mr. Trey Forgety, Director of Government Affairs, National Emergency Number Association; Mr. Christopher Guttman-McCabe, Executive Vice President, CTIA - The Wireless Association; Ms. Gigi Smith, President, APCO International; Mr. Claude Stout,Executive Director, Telecommunications for the Deaf and Hard of Hearing, Inc.; and Mr. Kirk Burroughs, Senior Director of Technology, Qualcomm Inc.
FCC Announces Tentative Agenda for January Meeting
FCC Chairman Tom Wheeler announced that the following items will be on the tentative agenda for the January 30, 2014 open meeting:
- Advancing Technology Transitions While Protecting Network Values: The Commission will consider a Report and Order, Notice of Proposed Rulemaking, and Notice of Inquiry that invites diverse technology transitions experiments to examine how to best accelerate technology transitions by preserving and enhancing the values consumers have come to expect from communication networks.
- Enabling Nationwide Text-to-911 Service for the 21st Century: The Commission will consider a Policy Statement and Further Notice of Proposed Rulemaking that sets forth the agency's policy goals regarding this critical public safety function, and seeks comment on proposals for widespread implementation and achievement of those goals.
- Incentive Auction Task Force Presentation: The Commission will receive an update on the timeline and project plan for the broadcast television incentive auction.
- Process Reform Working Group Presentation: The Commission will receive a presentation from the Staff Working Group on Process Reform at the FCC.
The Open Meeting is scheduled to commence at 10:30 a.m. in Room TW-C305, at 445 12th Street, S.W., Washington, D.C., and will be webcast live at www.fcc.gov/live .
FCC Chairman Wheeler Announces Senior Staff Appointments
On January 10, 2014, FCC Chairman Tom Wheeler announced the appointment of Tim Brennan as Chief Economist for the agency, and Clete Johnson as Chief Counsel for Cybersecurity in the Public Safety and Homeland Security Bureau.
Dr. Brennan is currently a professor of public policy and economics at the University of Maryland - Baltimore County (UMBC) and a senior fellow with Resources for the Future whose research has addressed topics in antitrust, regulatory economics, copyright, electricity markets, telecommunications and media policy, environmental economics, and methods and ethics in public policy. Before joining the UMBC faculty in 1990, Dr. Brennan was an economist with the Antitrust Division of the U.S. Department of Justice, taught in the telecommunications policy program at George Washington University, served as a senior economist for the White House Council of Economic Advisers, and served as a staff consultant to the U.S. Federal Trade Commission.
Mr. Johnson previously worked for the Senate Intelligence Committee where he served as the Committee's lead staffer on financial intelligence issues. As the Committee's designated counsel for former Intelligence Committee Chairman and present Commerce Committee Chairman Senator John D. Rockefeller IV, Mr. Johnson was the staff lead for Senator Rockefeller's cybersecurity legislation and related stakeholder outreach. He also served previously as Senator Rockefeller's counsel for defense, foreign policy, and international trade. Before coming to the Senate, Mr. Johnson practiced law at Patton Boggs LLP, focusing on export controls and defense procurement, as well as other aspects of international trade and security.
Charter Bids for Time Warner; Time Warner Says No-Thank You — Not Enough
On Monday, Time Warner Cable rejected a $62 Billion bid from Charter Communications, a smaller cable company that is controlled by Liberty Media Group and John Malone. Press reports are indicating that Rob Marcus, CEO of Time Warner Cable, stated that the Charter proposal was a "non-starter" because Time Warner Cable is far more valuable. While Marcus is not opposed to a sale, he indicated that the current bid from Charter Communications essentially amounted to a bid of $132.50 per share which is far below the $160.00 per share price that Time Warner Cable would be agreeable to.
Press reports note that this is merely the opening salvo and that Charter has several options before it, including nominating a slate of directors to Time Warner Cable and a potential tender offer for Time Warner Cable's stock. Obviously, Charter Communications would prefer a friendly transaction. Charter Communications' letter to Time Warner Cable indicated that it has "fully negotiated" financing and can be "in a position to sign commitment letters in a matter of days.
FEBRUARY 1: FCC FORM 502, NUMBER UTILIZATION AND FORECAST REPORT. Any wireless or wireline carrier (including paging companies) that have received number blocks—including 100, 1,000, or 10,000 number blocks—from the North American Numbering Plan Administrator (NANPA), a Pooling Administrator, or from another carrier, must file Form 502 by February 1 . Carriers porting numbers for the purpose of transferring an established customer's service to another service provider must also report, but the carrier receiving numbers through porting does not. Resold services should also be treated like ported numbers, meaning the carrier transferring the resold service to another carrier is required to report those numbers but the carrier receiving such numbers should not report them. Reporting carriers are required to include their FCC Registration Number (FRN). Reporting carriers file utilization and forecast reports semiannually on or before February 1 for the preceding six-month reporting period ending December 31, and on or before August 1 for the preceding six-month reporting period ending June 30.
Jan. 17 – Comments on Wireless Emergency Transparency are due.
Jan. 17 – Mock auction for Auction 96.
Jan. 20 – Notification deadline for area-source boilers operated by small entities.
Jan. 22 – Auction 96 begins.
Jan. 23 – Reply comments are due on the proposal to license 600 MHz Band using "Partial Economic Areas."
Jan. 27 – Comments on Central Arkansas Telephone Cooperative request to include prepaid post-employment benefits in rate base are due.
Jan. 28 – Reply comments are due on Changes to LNP Porting Process.
Jan. 31 – FCC Form 555 (Annual Lifeline ETC Certification Form) is due.
Feb. 1 – FCC Form 499-Q is due.
Feb. 1 – FCC Form 502 (Number Utilization and Forecast Report) is due.
Feb. 10 – Electronic filing deadline for Form 497 for carriers seeking support for the preceding month and wishing to receive reimbursement by month's end.
Feb. 28 – PRA comments on Rural Call Completion are due.
Mar. 1 – Copyright Statement of Account Form for cable companies is due.
Mar. 1 – FCC Form 477 (Local Competition & Broadband Reporting) is due.
Mar. 3 – Annual CPNI Certification is due.
Mar. 10 – Electronic filing deadline for Form 497 for carriers seeking support for the preceding month and wishing to receive reimbursement by month's end.
Mar. 31 – FCC Form 525 (Delayed Phase-down CETC Line Counts) is due.
Mar. 31 – FCC Form 508 (ICLS Projected Annual Common Line Requirement) is due.
Apr. 1 – FCC Form 499-A (Telecommunications Reporting Worksheet) is due.
Apr. 1 – Annual Accessibility Certification is due.