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. 18, No. 21||May 20, 2015|
REMINDER: FCC Form 395 Due June 1
Common carriers, including wireless carriers, with 16 or more full-time employees must file their annual Common Carrier Employment Reports (FCC Form 395) by June 1. 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. The FCC encourages carriers to complete the discrimination report requirement by filling out Section V of Form 395, rather than submitting a separate report.
FCC Issues Broadband Privacy Enforcement Advisory
On May 20, the FCC’s Enforcement Bureau issued an Enforcement Advisory stating that broadband providers “should take reasonable, good faith steps to protect consumer privacy” during the interim period after the Open Internet Order becomes effective on June 12 and the FCC ultimately adopts regulations applying Section 222 specifically to broadband.
As we have previously reported, the FCC’s Open Internet Order applies the core consumer privacy protections of Section 222 of the Communications Act to providers of broadband Internet access service, but not the existing telephone-centric CPNI Rules implementing Section 222. Although the FCC indicated that in the future it may adopt rules pertaining specifically to broadband service, the statutory provisions of Section 222 themselves nevertheless apply when the Order goes into effect on June 12.
According to the Advisory, the Enforcement Bureau intends to focus on “whether broadband providers are taking reasonable, good-faith steps to comply with Section 222, rather than focusing on technical details” during this interim period. “By examining whether a broadband provider’s acts or practices are reasonable and whether such a provider is acting in good faith to comply with Section 222, the Enforcement Bureau intends that broadband providers should employ effective privacy protections in line with their privacy policies and core tenets of basic privacy protections.” The Bureau also indicated that it will provide informal as well as formal guidance to broadband providers as they consider how best to comply with Section 222.
The FCC’s CPNI Rules require all providers of telecommunications to have CPNI policies in place to protect their customers, and BloostonLaw has a manual available to assist providers in meeting those requirements. Although the CPNI Rules do not apply to broadband, BloostonLaw is available to assist clients in reviewing their existing privacy practices, including CPNI policies, and updating and applying them to broadband service, as well as request advisory opinions and other assistance from the Bureau.
Comments Sought on Declaratory Ruling Regarding BOC UNE Requirements
Granite Telecommunications, LLC (Granite) filed a petition for declaratory ruling asking the FCC to declare that Section 271, 201(b) and 202(a) of the Act require Bell Operating Companies (BOCs): (1) to continue to provide combined Section 271 unbundled network elements (UNEs), including local loops, local transport, and local switching, unless the CLEC has requested that they are separated; (2) to combine Section 271 UNEs upon request from the CLEC; and (3) to commingle or to allow CLECs to commingle a Section 271 UNE or combination of such UNEs with wholesale services obtained from an ILEC. (WC Docket No. 15-114). Granite states that it must be able to purchase "combinations of unbundled DS0 loops, shared transport, and local switching from the BOCs," to be able to reach its business customer locations in suburban and rural areas where it is uneconomic for competitive LECs or cable companies to deploy fiber facilities.
Granite argues that a declaratory ruling is required because in a 2005 Order on Section 251 unbundling obligations, the FCC held that incumbent LECs have no obligation to provide local switching or shared transport as Section 251 UNEs and, in the absence of Section 251 unbundling obligations, the Section 271 competitive checklist "provides the only regulatory compulsion for BOCs to provide these network elements on an unbundled basis today." Granite further argues that a declaratory ruling is needed because USTelecom has recently argued that a footnote in the FCC's 2003 Order on Section 251 unbundling obligations "supports the conclusion that BOCs have no legal obligation to combine Section 271 UNEs." According to Granite, the uncertainty governing the BOCs' obligations not to separate Section 271 UNEs and their obligations to combine and commingle Section 271 UNEs "threatens competitors' ability to obtain viable wholesale agreements with the BOCs and to serve their customers in the future."
Carriers that use Section 271 UNEs should consider the impact of USTelecom's position on their ability to continue to serve their customers and file comments in this proceeding, as necessary. Comments on the Petition are due June 15, 2015 and reply comments are due on June 30, 2015.
Paperwork Reduction Act Comments Sought on Open Internet Order
On May 20, the FCC published a notice for request and comment regarding the information collections associated with its Protecting and Promoting the Open Internet Order. Comments are due on or before July 20.
As we reported in the April 15 edition of the BloostonLaw Telecom Update, these collections are associated with the heightened transparency rules, and include:
- Disclosure of commercial terms, including price, other fees, and data caps or allowances;
- Disclosure of the packet loss network performance characteristic;
- Disclosure of whether certain services rely on particular network practices and whether similar functionality is available to applications and services offered over broadband Internet access service;
- Disclosure of network practices that are applied to traffic associated with a particular user or user group, including any application-agnostic degradation of service to a particular end user, and the purposes of those network practices.
Unlike traditional FCC comments, PRA comments must focus on : (i) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (ii) the accuracy of the Commission’s burden estimate; (iii) ways to enhance the quality, utility, and clarity of the information collected; (iv) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (v) ways to further reduce the information burden for small business concerns with fewer than 25 employees.
We are able to assist carriers in preparing and filing PRA comments. Interested parties should feel free to contact the firm for more information.
AT&T Seeks to Discontinue Corporate Calling Card Service
AT&T Corp. (AT&T) filed an application requesting authority, under section 214 of the Communications Act of 1934, as amended to grandfather and eventually discontinue its Corporate Calling Card Service in all 50 states including the District of Columbia and the U.S. territories of American Samoa; Commonwealth of the Northern Mariana Islands, Saipan; Guam; Puerto Rico; and the U.S. Virgin Islands (Service Areas). (WC Docket No. 15-89; Comp. Pol. File No. 1213) Comments objecting to the application are due May 27, 2015.
AT&T Corporate Calling Card Service is a long distance travel card that allows users to place intrastate, interstate and/or international calls by dialing a company-provided toll-free access code or number. According to the FCC, AT&T seeks to discontinue the service because “calling card usage has been declining for several years as a result of the market growth of other communication methods, including mobile phones, email, social media streams and voice over IP.” AT&T states that it will grandfather the Affected Service and no longer offer it to new customers in the Service Areas on or after May 15, 2015, subject to Commission authorization. Also effective May 15, 2015, AT&T plans to no longer renew Calling Card Service to current customers within their Virtual Telecommunications Network Service (VTNS) agreements, however, AT&T will provide the Affected Service on a month-to-month basis until the service is eventually discontinued. On or after June 1, 2016, AT&T plans to no longer accept moves, additions and change orders from existing customers. AT&T states that it eventually plans to discontinue the Affected Service to existing customers in the Service Areas on or after December 31, 2016, subject to Commission authorization. AT&T contends that the public convenience and necessity will not be impaired by this proposed discontinuance due to the significant and continuing decline of the service and the availability of many alternative options.
In accordance with section 63.71(c) of the Commission’s rules, AT&T’s application will be deemed to be granted automatically, unless the Commission notifies AT&T otherwise. The Commission normally will authorize proposed discontinuances of service unless it is shown that customers or other end users would be unable to receive service or a reasonable substitute from another carrier, or that the public convenience and necessity would be otherwise adversely affected.
Accordingly, absent further Commission action, AT&T may cease offering the Affected Service to new customers and may apply restrictions on service to existing customers in the Service Areas on or after June 12, 2015 and AT&T may discontinue the Affected Service to existing customers in the Service Areas on or after December 31, 2016.
FCC Reminds TV Licensees of Procedures Prior to Spectrum Incentive Auction
Full-power and Class-A TV licensees that plan to participate in the TV spectrum auction have been reminded by the FCC of the need to either be licensed or to submit FCC Form 2100, Schedules B and F, by May 29, 2015.
In the incentive auction, participating TV licensees who wish to sell a portion of their spectrum in the reverse auction portion will be eligible for certain protections only if they meet the May 29 deadline. While certain Class A TV licensees may wait until another upcoming deadline, on September 1, 2015, to complete their transition from analog to digital (pursuant to extensions previously granted by the FCC), those that do not have their digital facilities licensed by the May 29 deadline will be afforded protection based only on the coverage area and population served by their licensed analog facilities.
After May 29, 2015, modifications filed to fix errors made by a licensee, even if granted and ultimately licensed, will not be considered for purposes of determining certain protections in the reverse auction. The FCC said that concluding otherwise would undermine its ability to ensure a stable database and prepare for the reverse auction.
Following the May 29 deadline, the FCC will issue a Public Notice listing the facilities eligible for protection in the auction process based on the technical information on file in the database. TV licensees with then have 30 days to file the new FCC Form 2100, Schedule 381, certifying that they have reviewed the license for each eligible facility and indicating whether the technical information is correct. This will assure that any necessary corrections are made prior to the auction.
Law & Regulation
Congress Asks FCC to Modernize Support for Rural Broadband
On May 11, Sen. John Thune (R-S.D.) and 60 other senators sent a letter to Chairman Wheeler calling on the FCC to modernize USF to better support rural broadband services. According to the letter, the signatories are, “troubled that the FCC has yet to take meaningful steps to address one of the most problematic aspects of existing USF rules in areas served by smaller carriers,” referring to the fact that USF cost recovery for small rural carriers is tied to a consumer's actual purchase of voice service, even if the consumer no longer wants that service and only wants broadband. “No new models or sweeping changes are needed to adopt and implement a targeted update to fix the issue ...” they continue. A copy of the full letter can be found here .
The same day, Rep. Kevin Cramer (R-N.D.) and 114 other House members sent a bi-partisan letter to Chairman Wheeler making the same argument: “outdated rules tie USF support for small rate-of-return regulated carriers to the provision of ‘plain old telephone service’ (POTS), meaning their rural customers must purchase voice in order to receive affordable broadband.” Like the letter from the Senate group, the House signatories likewise highlight the need for “a much simpler and straightforward plan that similarly empowers rate-of-return carriers [to offer broadband without voice]…”. A copy of that letter can be found here .
A list of the signatories for each letter can be found here and here . We are able to provide language for clients wishing to contact their members of Congress to urge them to support this initiative (or to show appreciation for their support, if they participated).
FCC Issues Agenda for May 21 Open Meeting
On May 14, the FCC issued the official agenda for its May 21, 2015 Open Meeting. At the meeting the FCC will consider:
- an Order to extend the National Deaf-Blind Equipment Distribution Program and a Notice of Proposed Rulemaking to permanently extend the program, which provides up to $10 million annually from the Interstate Telecommunications Relay Service Fund to support programs that distribute communications equipment to low-income individuals who are deaf-blind, and
- a Second Report and Order and Second Further Notice of Proposed Rulemaking to extend accessibility rules for emergency alerts to "second screens," including tablets, smartphones, laptops, and similar devices. The proposal would take additional steps to make emergency information in video programming accessible to individuals who are blind or visually impaired.
The meeting will be webcast live at 10:30 a.m. EDT at https://www.fcc.gov/live .
BloostonLaw Contacts: Ben Dickens, Gerry Duffy, Mary Sisak, and Sal Taillefer.
OP ED: Our Take on Commissioner O’Rielly’s Concerns regarding Enforcement Penalties and Fines
In a recent Blog post, Commissioner Michael O’Rielly takes the Commission to task because it has no mechanism for ensuring that fines for rules violations are paid. In this regard, Commissioner O’Rielly asked the Enforcement Bureau to provide detailed information on the most recent Notices of Apparent Liability and Forfeiture Orders. However, the Enforcement Bureau advised Commissioner O’Rielly that it did not routinely track the collections of monetary forfeitures (fines). Commissioner O’Rielly concluded that without this collections information, the Commission is ill equipped to determine the effectiveness of its enforcement actions.
Depending upon your perspective, Commissioner O’Rielly may be on the right track in taking the position that the Commission’s staff should have some sort of a mechanism for tracking enforcement actions from cradle to grave — even after responsibility for the enforcement action has been transferred to the U.S. Treasury or the Department of Justice for collection. It seems counterintuitive, from an internal controls aspect, that the Commission would not have this process in place — especially in light of the Commission’s Redlight Rule, which permits the FCC to block action on a pending matter once the forfeiture matures to an unpaid debt, following the issuance of a final court order and the subsequent failure to pay.
Section 504 of the Communications Act provides a very clear process for the collection of FCC fines. In those circumstances where a fine pursuant to a Forfeiture Order or a subsequent Commission order on reconsideration is not paid, Section 504 allows the federal government to bring a civil suit in the United States district court where the person or carrier has its principal place of business or where the person or carrier operates. The federal government is not entitled to any presumption that the Commission’s conclusions were correct. Rather, the government will be required to prove its case anew since the case must be brought as a trial de novo — meaning that the parties will be entitled to relitigate the underlying facts and appropriateness of the fine. This is a critical safeguard in order to ensure that there is sufficient evidence of a violation and that an appropriate penalty is assessed for a violation that was not subject to the political whims of the Commission or Congress.
Open Internet Petition for Review Proceeding Update
Recent weeks have seen a flurry of activity in the District Court proceedings petitioning to review the FCC’s Protecting and Promoting the Open Internet Order, in which it reclassified Internet access service as a telecommunications service subject to Title II regulation, among other things.
On May 8, the FCC filed a motion to dismiss the first of the Petitions for Review, filed by Alamo Broadband and US Telecom almost immediately after the Protecting and Promoting the Open Internet Order was released on March 12. According to the FCC’s filing, the court should dismiss these particular petitions because they were filed prior to the Order’s publication in the Federal Register, rendering them premature. The motion notes that both petitioners have filed second, timely Petitions for Review after the Order was published.
Also on May 8, the United States Court of Appeals for the District of Columbia issued an order consolidating all of the Petitions for Review of the Order: Alamo Broadband, US Telecom, NCTA, CTIA, AT&T, American Cable Association, CenturyLink, WISPA, and Daniel Berninger (founder of the Voice Exchange Communication Committee).
On May 12 NARUC, Etsy, Kickstarter, Meetup, Tumblr, Vimeo, Union Square Ventures, DISH Network, COMPTEL, Level 3 Communications, Netflix, and Cogent filed motions to intervene in support of the FCC. ITTA seeks to intervene in support of CenturyLink; on May 13, Credo Mobile, Fight For The Future, Demand Progress, Free Press, New America’s Open Technology Institute, and Center for Democracy and Technology filed motions to intervene; on May 14, Vonage, Akamai Technologies, and Ad Hoc Telecommunications Users Committee filed motions to intervene; and on May 15, ColorOfChange.org filed a motion to intervene.
GAO Releases Report on Broadband Performance, Recommends Further Research
On May 15, the U.S. Government Accountability Office (GAO) released a report entitled Broadband Performance: Additional Actions Could Help FCC Evaluate Its Efforts to Inform Consumers, in which it found that current methods available to consumers to obtain broadband performance information, including the FCC’s own speed test, suffer from a number of limitations. As a result, the GAO recommended that the FCC should take additional steps to evaluate its efforts to provide consumers with broadband performance information. Specifically, the GAO noted, this should include: (1) conducting or commissioning research on the effectiveness of its efforts and making the results publicly available, and (2) establishing performance goals and measures that allow FCC to monitor and report on these efforts. According to the report, the FCC concurred with these recommendations.
A copy of the full report can be found here .
AT&T to Offer Exclusive Content for Connected Cars
This week multiple news sources are reporting that AT&T Inc. has signed up a number of automakers, including General Motors Co, Audi AG, and Ford Motor Co, to provide in-vehicle Internet access service and provide free or paid content exclusively to connected cards.
According to Reuters , “AT&T is talking to its auto industry partners and content companies to bring new content like "special" shows or gaming levels on phones and tablets in connected cars, Penrose said. This would be in addition to subscription services such as Hulu and Netflix that users can already stream on mobile devices.”
According to FierceWireless , AT&T “activated 800,000 connected cars on its network in the fourth quarter of 2014 and another 684,000 in the first quarter of 2015. The carrier expects to have at least 50 percent market share of new connected cars in 2015.” The article also notes that in an interview, AT&T senior vice president of emerging devices, Chris Penrose, said that AT&T is exploring revenue sharing models for data consumption, content, and advertising with automakers, content companies, and retail partners.
JUNE 1: 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. However, because May 31 falls on a Sunday this year, the filing will be due on June 1. 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 June 1. The FCC encourages carriers to complete the discrimination report requirement by filling out Section V of Form 395, rather than submitting a separate report.
JULY 1: FCC FORM 481 (CARRIER ANNUAL REPORTING DATA COLLECTION FORM). All eligible telecommunications carriers (ETCs) must report the information required by Section 54.313, which includes outage, unfulfilled service request, and complaint data, broken out separately for voice and broadband services, information on the ETC’s holding company, operating companies, ETC affiliates and any branding in response to section 54.313(a)(8); its CAF-ICC certification, if applicable; its financial information, if a privately held rate-of-return carrier; and its satellite backhaul certification, if applicable. Form 481 must not only be filed with USAC, but also with the FCC and the relevant state commission and tribal authority, as appropriate. Although USAC treats the filing as confidential, filers must seek confidential treatment separately with the FCC and the relevant state commission and tribal authority if confidential treatment is desired.
JULY 1: MOBILITY FUND PHASE I ANNUAL REPORT. Winning bidders in Auction 901 that are authorized to receive Mobility Fund Phase I support are required to submit to the Commission an annual report each year on July 1 for the five years following authorization. Each annual report must be submitted to the Office of the Secretary of the Commission, clearly referencing WT Docket No. 10-208; the Universal Service Administrator; and the relevant state commissions, relevant authority in a U.S. Territory, or Tribal governments, as appropriate. The information and certifications required to be included in the annual report are described in Section 54.1009 of the Commission’s rules.
JULY 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 July 31 and covers lines served as of December 31, 2014. Incumbent carriers filing on a quarterly basis must also file on September 30 (for lines served as of March 31, 2015); December 30 (for lines served as of June 30, 2015), and March 31, 2016, for lines served as of September 30, 2015).
JULY 31: CARRIER IDENTIFICATION CODE (CIC) REPORTS. Carrier Identification Code (CIC) Reports must be filed by the last business day of July (this year, July 31). These reports are required of all carriers who have been assigned a CIC code by NANPA. Failure to file could result in an effort by NANPA to reclaim it, although according to the Guidelines this process is initiated with a letter from NANPA regarding the apparent non-use of the CIC code. The assignee can then respond with an explanation. (Guidelines Section 6.2). The CIC Reporting Requirement is included in the CIC Assignment Guidelines, produced by ATIS. According to section 1.4 of that document: At the direction of the NANPA, the access providers and the entities who are assigned CICs will be requested to provide access and usage information to the NANPA, on a semi-annual basis to ensure effective management of the CIC resource. (Holders of codes may respond to the request at their own election). Access provider and entity reports shall be submitted to NANPA no later than January 31 for the period ending December 31, and no later than July 31 for the period ending June 30. It is also referenced in the NANPA Technical Requirements Document, which states at 7.18.6: CIC holders shall provide a usage report to the NANPA per the industry CIC guidelines … The NAS shall be capable of accepting CIC usage reports per guideline requirements on January 31 for the period ending December 31 and no later than July 31 for the period ending June 30. These reports may also be mailed and accepted by the NANPA in paper form. Finally, according to the NANPA website, if no local exchange carrier reports access or usage for a given CIC, NANPA is obliged to reclaim it. The semi-annual utilization and access reporting mechanism is described at length in the guidelines.
Calendar At A Glance
May 21 – Deadline for reply comments on Further Issues on Competitive Bidding Proceeding.
May 18 – Short Form Tariff Review Plan is due.
May 27 – Questions on terms in the FirstNet RFP are due.
May 29 – Comments on Short Form Tariff Review Plans are due.
Jun. 1 – FCC Form 395 (Annual Employment Report) is due.
Jun. 5 – Reply comments on Short Form Tariff Review Plans are due.
Jun. 5 – Comments are due on the 9-1-1 Non-Service Initialized Device NPRM
Jun. 10 – Comments are due by 5 p.m. Eastern on the Broadband Opportunity Council Notice and Request.
Jun. 16 – Tariffs filed on 15 days’ notice are due.
Jun. 23 – Petitions to Suspend or Reject Tariffs filed on 15 days’ notice are due.
Jun. 24 – Tariffs filed on 7 days’ notice are due.
Jun. 26 – Replies to Petitions to Suspend or Reject Tariffs filed on 15 days’ notice are due.
Jun. 26 – Petitions to Suspend or Reject Tariffs filed on 7 days’ notice are due by noon Eastern Time.
Jun. 29 – Replies to Petitions to Suspend or Reject Tariffs filed on 7 days’ notice due by noon Eastern Time.
Jul. 1 – FCC Form 481 (Carrier Annual Reporting Data Collection Form) is due.
Jul. 1 – FCC Form 690 (Mobility Fund Phase I Auction Winner Annual Report) is due.
Jul. 6 – Reply comments are due on the 9-1-1 Non-Service Initialized Device NPRM.
Jul. 20 – PRA comments are due on the Open Internet Order.
Jul. 27 – Comments are due on FirstNet Draft RFP.
Jul. 31 – FCC Form 507 (Universal Service Quarterly Line Count Update) is due.
Jul. 31 – Carrier Identification Code (CIC) Report is due.