Selected portions of the BloostonLaw Telecom Update, a newsletter from the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP are reproduced in this section with the firm's permission. 
Did you know. . . Wireline, wireless, satellite, cable, signaling system 7, and VoIP providers must electronically notify the FCC within 2 hours (4 hours for VoIP) of discovering a network outage that meets the FCC's definition of outages that must be reported. Providers also must file an Initial Communications Outage Report within 72 hours of discovering the outage. Given the relatively short window for making the first notification and the Initial Report, clients should have network outage identification and reporting procedures in place now — before an outage occurs. We can provide suggested network outage procedures to get you started.
Headlines Comments Filed in TDM-to-IP Transition Proceeding As reported in last week's BloostonLaw Telecom Update, initial comments were filed on January 28, 2013 in GN Docket No. 12-353, the proceeding initiated by AT&T's "Petition to Launch a Proceeding Concerning the TDM-to-IP Transition" and the National Telecommunications Cooperative Association's (NTCA's) petition for a "Rulemaking to Promote and Sustain the Ongoing TDM-to-IP Evolution." Two of the main issues highlighted in last week's analysis are the regulation of IP-to-IP interconnection, and recovering the additional costs of IP upgrades. The National Association of State Utility Consumer Advocates (NASUCA), for its part, filed comments attempting to dispel the myth that the TDM and IP networks are separate, distinct entities, instead demonstrating that, "this is all one network." NASUCA also highlighted the resistance of TDM (and the susceptibility of IP) to power outages, and encouraged the FCC not to allow AT&T to test its proposals on customers without first guaranteeing that their phones will work, including during power outages. NASUCA argued that "the FCC [Technology Transition Task Force] and the Commission should develop a detailed plan for an orderly transition from the current PSTN system to a service-rich network for achieving key national goals." AT&T, Verizon, Comcast, CTIA, and the National Cable & Telecommunications Association (NCTA) filed comments generally opposing federal and/or state regulation of IP-based networks and urging the FCC not to, as Comcast put it, "attempt to apply the legacy TDM regulatory regime to IP-based networks [or] impose any IP-to-IP interconnection rules on voice service providers at this time." AT&T argued that IP interconnection rules, "would be needless, counterproductive, and beyond the Commission's statutory authority." According to Verizon, "commercially negotiated agreements are enough to lead to efficient IP interconnection for voice." Verizon implored the Commission not to expand unbundling obligations to new technologies and supported AT&T's proposal to revise or eliminate a number of legacy regulations, including unbundlled transmission paths, approval requirements for entry and exit of services, eligible telecommunications carrier (ETC) and carrier of last resort (COLR) requirements, and equal access obligations. With regard to ETC and COLR requirements, Verizon argued that any obligations should be eliminated on the state side, and that any remaining requirements should be tied expressly to the actual receipt of universal service funding. NCTA and CTIA both voiced strong opposition to additional universal service support to rural LECs to upgrade their networks to IP-based technology. Specifically, NCTA wrote, "[a]ll providers face choices about when and how to deploy new technologies as they develop and there is no reason that incumbent LECs should receive government subsidies for undertaking investments that they and other providers have been able to undertake without such subsidies." NCTA went on to chide a commenter for suggesting that "in the absence of any sort of discussion of the economics of deploying IP-based equipment" that such subsidies might be necessary, and asserted that "[the costs of upgrading to IP-based equipment] are offset by reduced operating expenses." According to CTIA, [t]here is no reason to provide additional universal service support for rural ILECs' IP networks." The role of States in the regulation of IP networks also drew comment, particularly from the National Association of Regulatory Utility Commissioners (NARUC) and the State Members of the Joint Board (the State Members). Both parties filed comments focused primarily upon the continuing role of the States in telecommunications regulation. According to the State Members, the AT&T petition is "simply designed to weaken the State-federal regulatory partnership for preserving and advancing universal service, and to unilaterally undermine the lawful role of the States in protecting the interests of their own end user consumers of telecommunications and communications services." Both NARUC and the State Members devoted their comments to demonstrating that the FCC lacks legal authority to preempt the States and allow AT&T to proceed with its "experiment," and that AT&T's "bare allegation that a State action 'frustrates' Abuse in Lifeline Program Not Addressed as FCC Claims Success on Reform While the Wireline Competition Bureau (WCB) was touting the success of the FCC's recent lifeline reforms, Associate Chief of the Enforcement Bureau, Christopher Killion, responded to a question from Betty Ann Kane, Chair of the Public Service Commission of the District of Columbia, concerning whether the FCC will address the enrollment in Lifeline of ineligible subscribers by prepaid wireless carriers. Mr. Killion, speaking at the winter meeting of the National Association of Regulatory Utility Commissioners (NARUC), said that the FCC is still investigating whether to take action regarding ineligible prepaid wireless subscribers, four years after NARUC asked for such an investigation. Mr. Killion's remarks came as the WCB issued a final report claiming that the reforms adopted by the Commission in the Lifeline Reform Order generated over $213 million in savings, compared to projected distributions to Eligible Telecommunications Carriers (ETCs) in the absence of reform, exceeding the $200m savings target for 2012. Among other reforms, the WCB reported that its recertification requirement resulted in the de-enrollment of approximately 20% of reporting ETCs' subscriber base, which resulted in substantial savings in 2012 and is expected to result in even more savings in 2013. The WCB ignored the possibility that those de-enrollments were merely participants who did not respond to recertification efforts, similar to the circumstances surrounding the recent waiver granted to the Puerto Rico Telephone Company for a significant number of subscribers who did not complete the recertification process in time (see BloostonLaw Telecom Update of January 13, 2013). Other reforms contributing to the savings figure announced by the WCB included the elimination of link-up support for non-tribal lands (estimated $93 million in savings for 2012), the cap on toll limitation service ($1.5 million), and the continued use of "in-depth data validations" ($45 million). Coincidentally, a recent Washington Times article on the Lifeline program and the FCC's reforms discloses that prepaid wireless carriers have not always made clear to potential subscribers that they must meet specific eligibility requirements to enroll in the Lifeline program. In spite of such problems, however, another article discusses the FCC's recent decision to award new Lifeline funding to TracFone, the prepaid wireless company that is responsible for most of the growth in the fund since 2008, for an internet pilot program. Under the program, TracFone will receive up to $25 per customer per month in connection with its provision of discounted or free Android devices and 2GB data rate plans to low-income customers. According to the story, if the pilot program is extended to all TracFone customers, "it would be billing the fund $100 million per month." Before this floodgate is opened, the FCC must investigate and take action against prepaid wireless carriers engaging in abusive or fraudulent marketing practices. Auction of Unsold Paging Licenses Set for July 16th. The FCC has announced that the auction of "leftover" market area paging licenses will commence on July 16, 2013 (Auction No. 95), and seeks comment on the procedures that will govern the auction. Comments in this AU Docket No. 13-12 proceeding are due February 22, and replies are due March 14. The FCC will be offering 5,905 paging licenses, of which 4,902 licenses are in the lower paging bands (35-36 MHz, 43-44 MHz, 152-159 MHz, 454-460 MHz) and 1,003 licenses are in the upper paging bands (929-931 MHz). These licenses can be used for paging, and in some cases mobile dispatch, repeater, control link and other types of operations. Unlike Part 90 shared spectrum, the auction winner has a level of exclusivity, although usually must protect incumbent systems in and near the auction license area that were authorized under the old licensing regime. Auction No. 95 will include licenses that remained unsold from a previous auction, licenses on which a winning bidder in a previous auction defaulted, as well as licenses for spectrum previously associated with licenses that were canceled or terminated. In a few cases, the available license does not cover the entire geographic area due to an excluded area or previous partitioning. In the Paging Reconsideration Order, the Commission concluded that the licenses for the lower band should be awarded in each of the 175 geographic areas known as Economic Areas (EAs), and the licenses for the upper band should be awarded in each of the 51 geographic areas known as Major Economic Areas (MEAs). These EAs and MEAs encompass the United States, Guam, the Northern Mariana Islands, Puerto Rico, the U.S. Virgin Islands, and American Samoa. The Commission also seeks comment on various competitive bidding procedures, and proposes to set the minimum opening bid for each license available in Auction 95 at $500.00. In this regard, the FCC is proposing to use bidding procedures in Auction No. 95 that are very similar to its prior auctions. Of note, however, is the Commission's proposal to impose a 10 percent bid withdrawal payment requirement. The FCC has proposed this amount since it believes that bidders will have fewer opportunities in Auction No. 95 to combine licenses on adjacent channels or in adjacent market areas than in prior paging auctions. The Public Notice does not indicate that there will be any changes to the build out requirements for these paging licenses. Under the FCC's current rules, any successful bidder will be required to demonstrate that it has constructed facilities that cover 1/3 of the population within three years of license grant and 2/3 of the population within 5 years of license grant. Alternatively, successful bidders may elect, at the three year mark, to provide "substantial service" within the market by the fifth anniversary. By electing to provide substantial service, licensees are afforded additional flexibility; although we note that the FCC has taken a closer look at buildout showings relying on the vague "substantial service" option in more recent years. It is important to note that in 2010, the FCC proposed rules to tighten up its construction and license renewal requirements for the wireless services. As a result, bidders should expect closer scrutiny of buildout showings and license renewal applications. FCC Substantially Revises Experimental Radio Rules Following recommendations from the 2010 National Broadband Plan, the FCC last week adopted significant changes to its Part 5 Rules for the Experimental Radio Service (ERS). The changes add three new types of experimental licenses and revise and streamline existing rules and procedures for experimenting, testing, and marketing radio frequency (RF) devices, while protecting incumbent licensees from interference. The action came in a Report and Order ( FCC 13-15 ) that was adopted in ET Docket No. 10-236. The new ERS licenses are intended to provide innovators greater flexibility in how they conduct research and development by permitting them to modify existing experiments and conduct new experiments within a broad range of frequencies, emissions, and power levels at defined geographic locations under a single license. The FCC hopes this flexibility will promote creativity and accelerate the introduction of new products to the marketplace. The new types of licenses are: - Program experimental license: This license will allow colleges, research laboratories, health care institutions, and manufacturers that have demonstrated experience in RF technology to conduct ongoing series of research experiments and tests.
- Medical testing license: This license will be available to health care facilities with RF expertise to assess newly developed RF based medical devices for patient compatibility, electromagnetic compatibility and to conduct clinical trials at patients' homes or in other geographic areas that are not within the health care licensee's control.
- Compliance testing license: This license will provide Commission-recognized laboratories the flexibility to undertake RF product compliance testing under the Commission's equipment authorization procedures.
Along with this new flexibility for ERS licensees, the new rules also ensure that critical services (i.e. commercial mobile radio services, emergency notifications, and public safety radio services) are protected by requiring experimenters using this expanded authority to provide notice and to develop a specific plan to avoid harmful interference to those operations. All operations under these new licenses, as with current ERS licenses, must be conducted on a non-interference basis. In addition, the FCC plans to create a new web-based registration system to track and manage individual experiments for program and medical testing licenses. Finally, the ERS R&O consolidates all experimental radio provisions that were scattered across multiple rule parts into Part 5 of the Commission's Rules. The new rules also clarify, simplify and expand existing rules for market trials, including allowing a greater number of RF devices to enter the U.S. for testing and evaluation purposes.
Law & Regulation FCC Commissioners Rosenworcel and Pai Appointed to Universal Service and Separations Joint Boards FCC Commissioners Jessica Rosenworcel and Ajit Pai have been appointed to serve on the Federal-State Joint Board on Universal Service (Universal Service Joint Board) and the Federal-State Joint Board on Jurisdictional Separations (Separations Joint Board). Commissioner Rosenworcel will serve as the federal chair of the Universal Service Joint Board and the Separations Joint Board. Commissioner Rosenworcel also will serve as the federal chair of the Federal-State Joint Conference on Advanced Services (Joint Conference), effective February 8, 2013. All five FCC Commissioners are members of the Joint Conference.
Industry FCC Announces Tentative Agenda for February Open Meeting The FCC announced on Thursday the agenda for the February 20 open meeting: Improving Wireless Coverage for Consumers Through the Use of Signal Boosters: The Commission will consider a Report and Order to significantly enhance wireless coverage for consumers, while protecting wireless networks from interference by adopting new technical, operational, and registration requirements for signal boosters. Increasing the Amount of Spectrum Available for Unlicensed Devices in the 5 GHz Band: The Commission will consider a Notice of Proposed Rulemaking to substantially increase the amount of unlicensed spectrum available to accelerate the growth and expansion of new Wi-Fi technology offering consumers faster speeds and less network congestion at Wi-Fi hot spots. The Open Meeting can be viewed live starting at 10:30 a.m. at FCC.gov/live. Federal Trade Commission Staff Issues Report on Mobile Privacy The nation's chief privacy agency wants the wireless industry to incorporate do-not-track functionality in mobile software and apps and to take additional measures to safeguard personal information. These recommendations were among those included in a staff report approved last Friday by the Federal Trade Commission (FTC). Text of the FTC Staff Report is available HERE . The Staff Report was issued as news reports surfaced about Facebook's plans to release a mobile location tracking app that will track the location of users and reportedly even when the program isn't open on a user's handset. The timing of the Staff Report suggests that the agency is becoming more focused on mobile privacy. As our clients are aware, consumers increasingly use smartphones and other mobile devices to access the Internet, to purchase goods and services, and for location-based applications. More than 150 million Americans use Facebook each month, many of these on mobile devices. The Staff Report includes recommendations for critical players in the mobile marketplace including mobile platforms (operating system providers, such as Amazon, Apple, BlackBerry, Google, and Microsoft), application developers, advertising networks and analytics companies, as well as trade associations for app developers. Most of the recommendations involve making sure that consumers get timely, easy-to-understand disclosures about what data they collect and how the data is used. "The mobile world is expanding and innovating at breathtaking speed, allowing consumers to do things that would have been hard to imagine only a few years ago," said FTC Chairman Jon Leibowitz. "These best practices will help to safeguard consumer privacy and build trust in the mobile marketplace, ensuring that the market can continue to thrive." The report recommends that mobile platforms should: - Provide just-in-time disclosures to consumers and obtain their affirmative express consent before allowing apps to access sensitive content like geolocation;
- Consider providing just-in-time disclosures and obtaining affirmative express consent for other content that consumers would find sensitive in many contexts, such as contacts, photos, calendar entries, or the recording of audio or video content;
- Consider developing a one-stop "dashboard" approach to allow consumers to review the types of content accessed by the apps they have downloaded;
- Consider developing icons to depict the transmission of user data;
- Promote app developer best practices. For example, platforms can require developers to make privacy disclosures, reasonably enforce these requirements, and educate app developers;
- Consider providing consumers with clear disclosures about the extent to which platforms review apps prior to making them available for download in the app stores and conduct compliance checks after the apps have been placed in the app stores; and
- Consider offering a Do Not Track (DNT) mechanism for smartphone users. A mobile DNT mechanism, which a majority of the Commission has endorsed, would allow consumers to choose to prevent tracking by ad networks or other third parties as they navigate among apps on their phones.
App developers should: - Have a privacy policy and make sure it is easily accessible through the app stores;
- Provide just-in-time disclosures and obtain affirmative express consent before collecting and sharing sensitive information (to the extent the platforms have not already provided such disclosures and obtained such consent);
- Improve coordination and communication with ad networks and other third parties that provide services for apps, such as analytics companies, so the app developers can better understand the software they are using and, in turn, provide accurate disclosures to consumers. For example, app developers often integrate third-party code to facilitate advertising or analytics within an app with little understanding of what information the third party is collecting and how it is being used.
- Consider participating in self-regulatory programs, trade associations, and industry organizations, which can provide guidance on how to make uniform, short-form privacy disclosures
Advertising networks and other third parties should: - Communicate with app developers so that the developers can provide truthful disclosures to consumers;
- Work with platforms to ensure effective implementation of DNT for mobile.
While the FTC Staff Report does not contain any direct recommendations or create any regulatory compliance obligations for our clients, the FTC recommends that wireless service providers and device manufacturers familiarize themselves with the report and consider how they may contribute to improving mobile privacy disclosures. Our clients that are wireless service providers would be well advised to keep abreast of developments in this area.
Calendar At-A-Glance Feb. 8 — Comments for Next Generation 911; Text-to-911 (Section III.A) are due. Feb. 8 — Electronic filing deadline for Form 497 for carriers seeking support for the preceding month and wishing to receive reimbursement by month's end. Feb. 11 — Reply Comments on Connect America Fund Phase I FNPRM due. Feb. 11 — Comments for sections IV.A and IV.C of Special Access FNPRM are due. Feb. 11 — Comments on NCTC Waiver of FCC Rule Section 36.605 are due. Feb. 19 — Comments for CAF Phase II Eligibility Methodology are due. Feb. 19 — Comments on Remote Areas Fund are due. Feb. 20 — FCC Open Meeting Feb. 22 - Comments on Competitive Bidding Procedures for Auction of Lower and Upper Band Paging Licenses are due. Feb 25 — USTelecom Petition for Declaratory Ruling comments are due. Feb. 25 — Comments on CTIA Blanket Waiver for Temporary Towers from FCC Public Notice Requirements are due. Feb. 26 — Reply Comments on NCTC Waiver of FCC Rule Section 36.505 are due. Feb. 28 — Comments on NECA Cost Allocation Manual Revision are due. Feb. 28 — Comments on Coral Wireless Request for Review are due. Mar. 1 — Copyright statement of accounts form for cable companies is due. Mar. 1 — CPNI Annual Certification is due. Mar. 1 — FCC Form 477, Local Competition & Broadband Reporting Form, is due. Mar. 4 — Reply Comments for CAF Phase II Eligibility Methodology are due. Mar. 8 — Electronic filing deadline for Form 497 for carriers seeking support for the preceding month and wishing to receive reimbursement by month's end. Mar. 11 — Comments for Next Generation 911; Text-to-911 Other Sections are due. Mar. 11 — Deadline for Paperwork Reduction Act (PRA) comments on ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. OMB Control No. 3060-0562. Mar. 12 — Deadline for reply comments on USTelecom Petition for Declaratory Ruling. Mar. 12 — Reply comments on Comments for sections IV.A and IV.C of Special Access FNPRM are due. Mar. 12 — Reply comments on CTIA Blanket Waiver for Temporary Towers from FCC Public Notice Requirements are due. Mar. 14 — Reply Comments on Competitive Bidding Procedures on Auction of Lower and Upper Band Paging Licenses are due. Mar. 14 — Reply Comments on NECA Cost Allocation Manual Revision are due. Mar. 15 — Reply Comments on Coral Wireless Request for Review are due. Mar. 18 — Reply Comments on Remote Area Fund are due. Mar. 25 — Comments for Interstate Inmate Calling Rate Proceeding are due. Apr. 1 — FCC Form 499-A due. Apr. 1 — International Circuit Status Reports due. Apr. 8 — Electronic filing deadline for Form 497 for carriers seeking support for the preceding month and wishing to receive reimbursement by month's end. Apr. 9 — Reply Comments for Next Generation 911; Text-to-911 (Other Sections) are due. Apr. 22 — Reply Comments for Interstate Inmate Calling Rate Proceeding are due. | 
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