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. 16, No. 21 | June 12, 2013 |
Headlines FCC to Consider New Rules to Protect CPNI on Wireless Devices In an ironic coincidence of timing for which Washington is famous (see subsequent article on NSA), the FCC later this month is expected to clarify that wireless carriers that collect, or direct the collection of, customer proprietary network information (CPNI) on mobile devices must adhere to statutory and regulatory CPNI requirements in protecting that information. The clarification has been in the works following a Congressional inquiry in 2011, and is expected to require carriers to safeguard calling information on mobile devices and prevent that data from being shared without a consumer's permission. The data include CPNI within the meaning of Section 222. Section 222 of the Communications Act of 1934, as amended, establishes the duty of every telecommunications carrier to "protect the confidentiality of proprietary information of, and relating to … customers." Further, every carrier must protect "customer proprietary network information" (CPNI) that it receives or obtains by virtue of its provision of a telecommunications service and may use, disclose, or permit access to such information only in limited circumstances. In 2007, the Commission updated its rules implementing these statutory obligations to address the practice of "pretexting" and to reaffirm that carriers are responsible for taking all reasonable steps to protect their customers' private information. "Pretexting" refers to the practice of pretending to be a particular customer or other authorized person in order to obtain access to that customer's call detail or other private communications records. At the same time, the Commission adopted a Further Notice of Proposed Rulemaking to address another emerging privacy issue: mobile carriers' obligations to secure the privacy of customer information stored in mobile devices. Although the Commission's particular focus in 2007 was on carriers' duty to erase customer information on mobile equipment prior to refurbishing the equipment, the issue of customer information on mobile devices gained greater prominence in 2011 when AT&T, Sprint and T-Mobile acknowledged in separate letters to U.S. Senator Al Franken (D-MN) that they each used Carrier IQ (CIQ) diagnostic software in customer devices to evaluate network performance. Sen. Franken, who is Chairman of the Judiciary Committee's Subcommittee on Privacy, Technology and the Law, sought information from the carriers, as well as HTC and Samsung and the President of Carrier IQ, Inc., regarding the CIQ software's logging and potential transmission of highly sensitive information regarding consumers' use of smartphones, which included: - when they turn their phones on;
- when they turn their phones off;
- the phone numbers they dial;
- the contents of text messages they receive;
- the URLs of the websites they visit;
- the contents of their online search queries - even when searches are encrypted; and
- the location of the customer using the phone - even when the customer has expressly denied permission for an app that is currently running to access his or her location.
According to Sen. Franken's letter , this information appears to be logged in a manner undetectable by the average consumer. It also appears that, when a consumer does become aware of his activity, he or she has no reasonable means to stop it. For their part, the service providers that acknowledged using CIQ software denied using the diagnostics to profile customer behavior, serve targeted advertising, or for any purpose not related to improvement of network and service performance. The service providers each said that information collected was protected with restricted access and/or transmitted in encrypted form to Carrier IQ and uploaded to the Carrier IQ servers where it is anonymized before any personnel access or use the data. The wireless industry has warned the FCC that it should not adopt new rules under Section 222 that would limit wireless carriers' use of network diagnostic tools to improve wireless voice and data service. In this regard, CTIA has argued that "such rules are unnecessary and would actually harm consumers by hamstringing providers in their ability to improve service quality, especially in these times of wireless spectrum capacity constraints." More fundamentally, however, CTIA has argued that the Commission lacks statutory authority to regulate carriers' use of tools to diagnose and troubleshoot network problems in order to improve the provision of service to subscribers. CTIA maintains this is so because data stored on mobile devices is not "information that relates to the quantity, technical configuration, type, destination, location, and amount of use of a telecommunications service." Thus, this data is not CPNI within the meaning of Section 222. It would appear that the FCC plans to sidestep the statutory authority issue by limiting the scope of its declaratory ruling to requiring service providers to protect data that clearly falls within the scope of Section 222. With respect to the CIQ software, such information would include phone numbers from calls placed or received on a device, the duration of calls and the geographical location where calls were placed. CTIA has argued that Section 222 "does not grant the Commission a roving mandate to safeguard the privacy of all types of data stored on wireless devices, such as text messages, pictures, and emails." In light of recent events, we expect wireless carriers' use of diagnostic software and limitations on protections of customer data that is not clearly CPNI may become the subject of heated public debate. To the extent our clients receive inquiries regarding privacy and security of personal data, customers should be advised that an ongoing multistakeholder process was convened by NTIA last summer to develop a code of conduct for handling personal data by companies providing applications and interactive services for mobile devices. Follow up: EPA Issues New Regulations on Generators As previously reported (BloostonLaw Telecom Update March 20, 2013), the Environmental Protection Agency (EPA) has now implemented regulations governing generators, including emergency "back up" generators. In the past, "unpermitted" generators (meaning those not requiring a state or local environmental permit) have not been required to comply with EPA emissions rules. Under newly adopted EPA rules, now they must comply with various new requirements, depending on the use, power and hours of operation of the generator. Therefore, it is imperative that a qualified environmental consultant be retained to ensure compliance with all applicable substantive, record keeping and reporting requirements, and to investigate state requirements. A significant factor is whether your generator is used as part of an "emergency demand response" system, whereby generators are used in a coordinated manner to overcome brown-out or black-out situations, usually pursuant to an agreement with a public utility. The new requirements apply even though your state or local air pollution or environmental agency does not require an environmental permit for the generator, i.e., the state or local authority has exempted your equipment (or your entire facility) from state or local emissions requirements. The new rules went into effect on April 1, 2013. Under prior EPA regulations, emergency generators were exempt from EPA requirements if they did not require a state or local emissions permit. Diesel generators will soon have to start using a cleaner form of diesel fuel. A preliminary review of the new regulations suggests that most "emergency standby" generators are exempt from much of the tougher new emission regulations that would require actual equipment modifications, but may be limited in the amount of time that they can operate each year. They may also have to comply with additional maintenance and record-keeping requirements. Diesel generators will not be exempt from regulations requiring the use of cleaner fuel. Moreover, the new EPA regulations are extremely complicated, and the specific requirements can vary by geographic region. For example, most engines generally will be classified as "area sources" of pollution, but may be classified as "major sources" of pollution for certain types of emissions. In addition, these regulations do not preempt state clean air standards, which may be more restrictive than the federal regulations, particularly in California (for example, California has stringent regulations governing diesel engine particulate emissions, while the EPA does not). Furthermore, certain testing and maintenance records do not have to be filed with the EPA, but must be made available to EPA inspectors during on-site inspections; but these documents may have to be filed with certain state environmental authorities. Similarly, in some circumstances, notifications and reports must be filed with the EPA , and some states require that copies of these documents be filed with state environmental authorities. For more information see:
http://www.gpo.gov/fdsys/pkg/FR-2013-01-30/pdf/2013-01288.pdf . The EPA's reduced regulatory scheme for emergency engines may cover many backup generators, but it will be important to identify which generators qualify as "emergency standby," how long they can operate before they trigger the new emission restrictions, and what maintenance and record-keeping requirements will now apply. Additional information is contained in a 15 page, April 2, 2013 EPA public release entitled "Implementation Question and Answer Document for National Emission Standards for Hazardous Air Pollutants for Stationary Reciprocating Internal Combustion Engines and New Source Performance Standards for Stationary Compression Ignition and Spark Ignition Internal Combustion Engines," a copy of which can be found at:
http://www.epa.gov/ttn/atw/rice/20120717riceqaupdate.pdf . Some important points in the Q&A: - The rules restate that in an emergency, such as hurricane or ice storm, any engine of any size can operate without meeting control requirements or emission limits.
- Emergency engines that commit to run less than 15 hours for "emergency demand response" can operate without meeting federal control requirements or numeric emission limits. However, operators should determine what additional reporting and/or record-keeping requirements apply to their particular generator, and what state requirements may apply.
For initial notification forms, notices of compliance status, fact sheets, webinars, applicability flowcharts, a spreadsheet of the various requirements that apply to existing and new/reconstructed engines of various types and sizes, and detailed rule language, see http://www.epa.gov/ttn/atw/rice/ricepg.html . In addition, the January 2013 rule amendments include requirements to report using EPA's Compliance and Emissions Data Reporting Interface ("CEDRI") when appropriate forms are available; and this is accessible through EPA's Central Data Exchange ("CDX") ( http://www.epa.gov/cdx/ )
Law & Regulation FCC Conditionally Gives Progeny the Green Light to Proceed With Operations The FCC has granted a conditional waiver to Progeny LMS, LLC to operate its multilateration location and monitoring system (M-LMS) in a portion of the 902-928 MHz band. Progeny plans to deploy a wide-area location service in areas where GPS and other location services may not work well, particularly indoors and in urban canyons. In addition to M-LMS licensees, the 902-928 MHz band is shared by the federal government, industrial, scientific and medical (ISM) equipment, amateur radio and a host of other unlicensed commercial and non-commercial users that operate under Part 15 of the Commission's s rules, including communications service providers, wireless internet service providers, meter readers, baby monitors, door openers, cordless phones and others. Although Part 15 users are not entitled to protection from interference, the rules under which Progeny operates provide that M-LMS licenses will be conditioned upon the licensee's ability to demonstrate through actual field tests that their systems do not cause unacceptable levels of interference to Part 15 devices in general. Individual Part 15 users are not directly protected from interference, although the conditions adopted by the FCC in response to significant industry opposition provides a complaint mechanism for affected users. In 2011, Progeny sought two rule waivers that would allow it to deploy its newly developed technology that was not available at the time of initial licensing. Progeny claimed that granting the waiver would actually reduce the interference potential to Part 15 users. Before granting the waiver, the FCC required Progeny to conduct field tests, in concert with certain Part 15 users. Despite strong and vociferous objections from various Part 15 users, the FCC granted the waivers on condition that Progeny establish measures to demonstrate that it is not causing unacceptable interference to Part 15 users, including reporting requirements, establishing a web site and a toll-free number to enable users of unlicensed devices in the 902-928 MHz band to seek assistance in investigating and mitigating potential interference issues. The FCC reasoned that unlicensed Part 15 users have long been aware that, not only are they not entitled to interference protection, but also that they can and do experience interference from both licensed and unlicensed users of the 902-928 MHz band. Given their unlicensed status, the FCC concluded, these users may need to find ways to make necessary adjustments to their systems to minimize the interference potential as many have in the past. Nonetheless, the FCC did incorporate certain conditions designed to offer some degree of protection to Part 15 users. In particular, Progeny must publicly announce their construction schedule, file interference reports for the next 18 months, and establish a website for interference complaints from affected Part 15 users. In addition, the FCC will continue to monitor the situation and encourage the parties to cooperate to resolve any future interference problems. Affected Part 15 users should file a complaint on the Progeny website if they encounter interference, so that the protections in the FCC's order can be followed. President Obama Proposes E-Rate Reform In a speech given on June 6, 2013 at Mooresville, North Carolina, President Obama called for reform of the Schools and Libraries Program (commonly known as the E-Rate Program). This new initiative, called ConnectED, has a goal of connecting 99 percent of America's students to high-speed broadband and high-speed wireless within five years. Although details on the program are not specific , it reportedly "challenges the FCC" to " modernize and leverage the successful E-Rate program for school connectivity in order to make a major capital investment in high-speed Internet connections and employ them for connected classrooms." FCC Commissioner Rosenworcel , Senator John D. Rockefeller , and FCC Acting Chairwoman Mignon Clyburn have all released statements expressing support for the initiative. FCC Issues Tentative Agenda for June 27 Open Meeting tentative agenda The FCC issued the on June 6, 2013, for its June 27, 2013 Open Meeting. The FCC will consider (1) an Order to improve and streamline the collection of broadband subscription and deployment data;
(2) an Order to help increase the Nation's supply of spectrum for flexible-use services, including mobile broadband; and
(3) a Declaratory Ruling clarifying that wireless carriers that collect CPNI on mobile devices must adhere to statutory and regulatory CPNI requirements.
Also, the Wireline Competition Bureau and Wireless Telecommunications Bureau will present an update on universal service reform implementation, and the Incentive Auction Task Force will present an update on progress towards the television broadcast incentive auction.
Industry NTIA Releases Second Report on Rural/Urban Broadband Divide NTIA released a report on June 5, 2013, entitled Broadband Availability Beyond the Rural/Urban Divide, the second report in the Broadband Briefs series which uses publicly available data collected by the Department of Commerce to examine broadband availability. The report finds there is considerable variation in availability within rural and urban communities, and shows greater broadband availability within rural and urban communities closely associated with population density. The report uses data from the June 30, 2011 State Broadband Initiative (SBI) dataset and the 2010 Decennial Census to compare broadband availability across rural and urban communities. Approximately 80.7 percent of the U.S. population lives in Census blocks designated as urban, while the remaining 19.3 percent lives in rural blocks where the population density is 17 persons per square mile or less. Seventy-one percent of the rural population in June 2011 had access to "basic wireline broadband," defined in the report as combined speeds of at least 3 Mbps downstream and 768 kbps upstream, while nearly the entire urban population (98 percent) had basic wireline broadband available. The gap widens for faster speeds. For example, only 23 percent of rural residents had wireline download speeds of 50 Mbps or greater available to them, while 63 percent of urban residents had such speeds available. In contrast to wireline service, the gaps were much smaller between the shares of urban and rural residents who had basic wireless broadband service available (defined as the same speeds mentioned above) (86 percent of rural residents compared to 98 percent of urban residents). However, the differences were larger at higher speeds: only 15 percent of rural residents had wireless download speeds of 10 Mbps or greater available, compared to 70 percent of urban residents. There were also large gaps between rural and urban populations with access to higher-speed upload service (e.g., only 12 percent of the rural population had wireline upload speeds of 10 Mbps or greater compared to 53 percent of urban residents). In addition to the above analysis, the report also contains a separate five-way population-based classification system that provides more granular data: (1) Central Cities (2,754 residents per square mile (RPSM), accounting for approximately one-third of the total population),
(2) Suburbs (1,970 RPSM, accounting for more than 40 percent of the total population),
(3) Small Towns (1,447 RPSM, accounting for 7 percent of the population),
(4) Exurbs (37 RPSM), and
(5) Very Rural (11 RPSM).
At wireline download speeds of 50 Mbps, broadband availability varies from 14 percent (Very Rural), 32 percent (Exurban), 35 percent (Small Town), 62 percent (Central City), to 67 percent (Suburban), even though overall the broadband availability was 63 percent in urban areas compared to 23 percent in rural areas. In addition, not only are far fewer rural residents than urban residents able to access 4G wireless services (i.e., at least 6 Mbps downstream), but a further divide also exists within rural communities. For wireless download services greater than 6 Mbps, Very Rural communities have approximately half the availability rate of Small Towns, and Small Towns have about half the availability rate of Exurbs (10, 18 and 36 percent, respectively). Latest Developments on Sprint/Softbank Merger May Derail DishNetwork Bid Over the past week, there have been several significant developments in the Sprint/SoftBank merger transaction that could deal a potential blow to Dish Network's proposal to acquire Sprint Nextel. First, the Department of Justice has cleared the proposed merger. In its June 7 letter to the FCC, DOJ stated that it was withdrawing its request for additional time to review the transaction, since it was satisfied that the applicants had addressed potential national security, law enforcement and public safety issues — including supply chain. As a result of the recent bid by Dish Network, SoftBank has increased its offer to $21.6 billion from $20.1 billion — which would increase the share value to Sprint stockholders to $7.65 per share from the previous offer of $7.30. The increased offer would result in SoftBank acquiring 78 percent of Sprint — rather than the 70 percent in the original bid. The revised SoftBank offer, which came the day before Sprint Shareholders were to vote on the original SoftBank offer, is still less than the $25.5 billion offer from Dish Network. That vote has now been delayed until June 25 in order to allow Sprint stockholders sufficient time to evaluate the amended agreement. On June 10, Sprint and SoftBank announced that Sprint's Special Committee and Board of Directors unanimously determined that the Dish Network proposal was "not likely to lead to a superior offer" under the merger agreement with SoftBank. Because of the lack of progress with Dish Network and the improved offer from SoftBank, Sprint's Special Committee ended discussions with Dish Network and will request that it destroy all Sprint confidential information that was made available to it during the course of its due diligence evaluation.
Deadlines AUGUST 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 August 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 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.
Calendar At-A-Glance Jun. 14 — Oppositions to Dell Telephone Company's Application for Review are due.
Jun. 14 — Comments on Broadcast TV Incentive Auction NPRM are due.
Jun. 17 — Comments on TracFone Petition for Rulemaking Prohibiting Distribution of Lifeline Handsets are due.
Jun. 17 — Annual access charge tariffs filed by Incumbent Local Exchange Carriers (ILECs) on 15-day notice are due.
Jun. 19 — Comments are due on 2013-2014 Regulatory Fee Structure NPRM.
Jun. 24 — Replies to oppositions to Dell Telephone Company's Application for Review are due.
Jun. 25 — Annual access charge tariffs filed by ILECs on 7-day notice are due.
Jun. 26 — Reply comments are due on 2013-2014 Regulatory Fee Structure NPRM.
Jun. 28 — Deadline for State Commissions to submit and certify the data included in shapefiles.
Jun. 28 — Reply comments on Broadcast TV Incentive Auction NPRM are due.
July 1 — Annual High Cost ETC Report Due under Rule 54.313 (Subsection (h) Only)
July 1 — Annual Mobility Fund Phase I Report Due under Rule 54.1009
July 2 — Reply comments on TracFone Petition for Rulemaking Prohibiting Distribution of Lifeline Handsets are due.
July 8 — Electronic filing deadline for Form 497 for carriers seeking support for the preceding month and wishing to receive reimbursement by July 8 — Comments are due on VoIP, NG911, and Wireline-to-Wireless Transition Trials.
July 16 — Paperwork Reduction Act Comments on Proposed Collection of July 25 — Comments are due on the FCC Staff Report on Rate of Return Re-Prescription.
July 31 — FCC Form 507 due (Universal Service Quarterly Line Count Update).
July 31 — FCC Form 525 due (Competitive Carrier Line Count Quarterly Report).
Sept. 3 — Comments are due on FCC's guidelines for human exposure to RF electromagnetic fields. |
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