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. 31 | September 4, 2013 |
Headlines
Clients May Need Waivers of the Newly-Enacted Text-to-911 Bounce-Back Message Requirement; FCC's Staff Clarifies Certain Issues The FCC's recently adopted Text-to-911 bounce-back message requirement goes into effect on September 30, 2013. As discussed below, there are indications that technology may not be available in time for sending the bounce-back message to roamers as required; and system upgrades may be needed to send the bounce-back messages to home customers. We encourage all affected clients to submit a waiver request before the September 30 deadline to cover the roamer shortfall, and determine ASAP if they can meet the bounce-back requirement for home customers (if not, the waiver request will need to be broader). Affected clients should contact us promptly. Exempt Carriers In response to a BloostonLaw inquiry, the Staff of the FCC's Public Safety and Homeland Security Bureau has clarified that, with respect to CMRS carriers, the requirement applies only to those carriers that offer two-way text-messaging capability . Stated another way, if a carrier does not offer two-way text messaging, it is not subject to the requirement. Thus, the following types of carriers are excluded from the requirement: - Mobile carriers that do not provide text messaging capability.
- Carriers providing fixed services that do not provide text messaging capability.
- One-way paging carriers, because the customer can only receive (but not send) a text-message.
- Two-way paging carriers, in which the customer can send a responsive message, but only to other users on the paging system. According to the FCC's staff, these systems serve a "closed user group". As a result, the service is not deemed to be an interconnected service because it cannot access the Public Switched Telephone Network at large.
By way of background, on May 17, 2013, the FCC released a Report & Order adopting rules requiring wireless carriers and certain other text messaging providers to send an automatic "bounce-back" text message to consumers (including roamers) who try to send a text message to 911 where text-to-911 service is not available from a given Public Safety Answering Point (PSAP). The requirement applies to two-way texting service provided by the following types of wireless service providers: all Commercial Mobile Radio Service ("CMRS") providers (including Cellular, Broadband PCS, AWS, mobile 700 MHz and interconnected SMR services) as well as to all providers of interconnected text message services that enable consumers to send text messages to and receive text messages from all or substantially all text-capable U.S. telephone numbers, including through the use of applications downloaded or otherwise installed on mobile phones. However, legacy devices that are incapable of sending texts via three digit short codes are not subject to the bounce-back message requirement, provided the software for these devices cannot be upgraded over the air to allow text-to-911 functionality. In addition, the bounce-back message requirement does not apply to non-service initialized handsets. The new requirement is intended to help protect the public by substantially reducing the risk of consumers sending a text message to 911 and mistakenly believing that 911 authorities have received it. Instead, under the new rules, consumers will receive an immediate response that text-to-911 is not supported in that area and to contact emergency services by another means, such as by making a voice call or by using telecommunications relay services (if deaf, hard of hearing, or speech disabled) to access 911. While the FCC declined to adopt a requirement to use specific wording for the message, the FCC stated that the following message would be compliant: "There is no text-to-911 service available. Make voice call to 911 or use another means to contact emergency services." The FCC noted that deployment of Next Generation 911, including text-to-911 service, has begun, but the transition is still in the very early stages and will not be uniform. During the transition, text-to-911 will be available in certain geographic areas sooner than others and may be supported by some service providers and PSAPs but not others. In addition, as text-to-911 becomes more widely available, it is likely to raise consumer expectations as to its availability, which makes it increasingly important for the public to know when the service is not available in an emergency. To address these concerns, the FCC is requiring wireless carriers and "interconnected" text message providers – that is, providers of software applications that enable consumers to send text messages to and receive text messages from all or substantially all text-capable U.S. telephone numbers – to implement the bounce-back message capability no later than September 30, 2013, although the FCC encourages carriers and others to provide the bounce-back capability at an earlier date if possible. This requirement does not apply to certain text message applications that reach only a defined set of users, such as those within games and social media. Please contact us immediately if you are unsure whether your company's wireless services are subject to the Text-to-911 bounce-back requirement. In addition to the need for waivers in connection with providing bounce-back text messages to roamers, you may need to request an additional waiver by the September 30, 2013 deadline if your system cannot generate the required text message to home customers as discussed above. FCC Seeks Comment on Imposing More Cramming Rules on Carrier Billing Practices The FCC's Consumer and Governmental Affairs Bureau (Bureau) is seeking comments to refresh the record on the need for more rules in connection with cramming, the placing of unauthorized charges on wireline and wireless bills, in light of developments and additional evidence related to this practice. On April 27, 2012, the FCC adopted rules to address cramming on wireline bills. The FCC's rules require wireline providers that currently offer blocking of third-party charges to notify consumers of this option on their bills, carrier websites, and other points of sale. The rules also require all wireline providers to place non-carrier, third-party charges in a distinct bill section separate from all carrier charges, and to provide separate totals for carrier and non-carrier charges. In a Further Notice of Proposed Rulemaking (FNPRM), the FCC asked for comment on whether it should take additional steps to prevent wireline cramming, including requiring carriers to obtain a consumer's affirmative consent (opt-in) before placing third party charges on bills. The FCC also asked for comment on possible regulatory and non-regulatory measures to address cramming that involves CMRS consumers. Since that time, the FCC notes that certain developments have taken place that warrant seeking further comment on this issue. Specifically, the FCC notes that in addition to the FCC's cramming rules, major wireline carriers made voluntary commitments to cease including most third-party charges on telephone bills. In May 2013, forty state and territorial attorneys general expressed concern to the Federal Trade Commission (FTC) about the growth of cramming on CMRS bills . The FCC states that recently published state studies indicate that half of all CMRS bills contain unauthorized charges. In addition, FCC and FTC workshops uncovered information on the extent of the cramming problem and possible ways to verify consumer consent to third-party charges. The Bureau seeks comment on these developments and on all issues raised in the FNPRM, including the current extent of cramming for consumers of wireline and CMRS services and the need for an opt-in requirement. With respect to wireline carriers, the Bureau seeks comment on whether additional rules are necessary to combat wireline cramming; the extent to which wireline cramming remains a problem for subscribers of carriers that have not voluntarily ceased including most third-party charges on their bills; and whether different measures to combat cramming are appropriate for small and rural wireline carriers. With respect to wireless carriers, the Bureau seeks comment on whether new measures to combat CMRS cramming are appropriate and what those measures might be. The Bureau also seeks comment on whether different measures might be more appropriate for small and rural CMRS carriers than for other CMRS carriers. Wireline and wireless carriers interested in filing comments in this proceeding should contact us. The comment and reply comment date will be established on publication in the Federal Register. Rural Utilities Service Offers Suggestions on Improving Broadband Access The Administrator of the U.S. Department of Agriculture's Rural Utilities Service sent a letter to acting Chairwoman Clyburn on August 14, 2013, to express its concern about network investment in rural areas after the issuance of the 2011 Transformation Order, and suggested three modifications to FCC processes. Speaking generally, the RUS Administrator stated that the "U.S. Department of Agriculture remains concerned over network investment in rural communities upon the issuance of the USF Transformation Order, and that there "is little doubt that the changes to existing high-cost support rules as well as the pending cuts outlined in the Further Notice of Proposed Rulemaking have also impacted carrier investment decisions." While expressing its appreciation for recent changes in the Quantile Regression Analysis model, RUS expressed its belief that additional actions could be taken to improve the existing Transformation Order: First, maintain a 15% maximum impact HCLS reduction through 2018 (i.e., a total of five years at the 15% level) instead of only through 2014. Second, expand CAF for all carriers to provide support for stand-alone broadband service. According to RUS, supported services should not be limited to the "voice telephony service" definition, but rather expanded to encourage greater adoption of broadband service by rural consumers. Third, modify the existing carrier waiver process. RUS noted that it is unclear how the FCC uses specific metrics and standards to determine the merit of each carrier's waiver petition, and encouraged the FCC "to modify the existing waiver process in order to create a more transparent process for all carriers." As an example, RUS noted that the recent "denial of Adak Eagle Enterprises' waiver application puts this RUS loan at risk for potential default;" and that the "FCC's reasoning, in part, sets bad precedent that all other outstanding RUS loans to rural providers may be treated in the same manner." RUS stated its position "that in instances where Federal debt is at risk due to a denied waiver, RUS should be given deference during that decision-making process." Challenge Process For Round 2 of CAF Phase I Begins On August 28 the Wireline Competition Bureau issued a Public Notice on August 28, 2013 beginning the challenge process for the second round of Connect America Fund Phase I funding. The Public Notice includes a list of all of the census blocks for which price cap carriers have requested funding. Through the challenge process, carriers are able to file with the FCC to demonstrate that census blocks are actually served (by Internet access at speeds of 3 Mbps down and 768 kbps up), and therefore are ineligible for funding. Challenges are due September 27; responses due October 28. According to the May 22, 2013 Order adopting the challenge process, all challenges must be supported by some form of documented evidence, such as a signed certification from an officer of the provider under penalty of perjury that the carrier offers 3 Mbps/768 kbps Internet service to customers in that particular census block. The Bureau may also consider FCC Form 477 data in evaluating whether a provider is providing broadband in a particular census block. Where the Bureau finds it more likely than not that the status of a census block should be treated differently than the status shown on the National Broadband Map, the Bureau will deem that census block as served or unserved, as appropriate, for the purposes of Connect America Phase I. The Public Notice also includes a link to an Excel spreadsheet of the price cap carriers' census block submissions to make for easier review. The spreadsheet can be found here . BloostonLaw has assisted clients in successfully challenging Mobility Fund Phase I census block classifications and is prepared to assist clients in Connect America Fund Phase I. Sender of a Text Message May be Civilly Liable for NJ Car Accident A New Jersey appeals court panel last week ruled that the sender of a text message may be held liable for damages if the person to whom they are sending a text gets into a crash. As in many states, New Jersey has a distracted driving law that makes it illegal to use a cell phone that is not "hands-free" while driving, except in certain specifically-described emergency situations. Offenders are subject to a fine of $100. The NJ Legislature also enacted a law last summer designed to assist in the criminal prosecution of violators of the hands-free law who cause serious crashes. That measure permits a jury to find that a driver who was using a hand-held cell phone and caused injury in an accident may be guilty of assault by auto, a fourth-degree crime if someone was injured seriously, thus exposing the driver to a potential sentence in state prison. However, neither of these laws addresses the novel issue of liability for the person on the other end of the line — across town or possibly thousands of miles away - who exchanged text messages with the distracted driver. This very issue was raised by a New Jersey lawyer whose clients, a married couple, both lost their left legs when a teenage boy driving a pickup truck hit their motorcycle on Sept. 21, 2009. The teen was texting and driving when the accident occurred. After the couple settled their lawsuit against the driver, they turned around and sued the driver's 17-year-old friend who was shown to be exchanging texts with the driver at the time. Her lawyers argued that she should have no liability for the accident because she was not present at the scene, had no legal duty to avoid sending a text to someone who was driving, and that she did not know that her friend was driving. After reviewing the evidence and arguments of the attorneys, the trial judge concluded that the young woman did not have a legal duty to avoid sending a text message to her friend, even if she knew he was driving. The judge then dismissed the plaintiffs' claims against the young woman. On appeal, the court rejected the defendant's argument that a sender of text messages never has a duty to avoid texting to a person driving a vehicle. "To summarize our conclusions, we do not hold that someone who texts to a person driving is liable for that person's negligent actions; the driver bears responsibility for obeying the law and maintaining safe control of the vehicle," the appeals court wrote. "We hold that, when a texter knows or has special reason to know that the intended recipient is driving and is likely to read the text message while driving, the texter has a duty to users of the public roads to refrain from sending the driver a text at that time," two of the three appellate court judges agreed in the opinion. While the appellate court's ruling sets precedent and makes new law in the State of New Jersey only, civil liability for the remote sender of a text could conceivably extend to anybody who sends a text message to someone they know is driving and who happens to be traveling in New Jersey when an accident occurs. It will not be surprising for other states to take a similar approach. With students going back to school, our clients should take this opportunity to warn their customers, young and old, of the dangers of distracted driving and the potential for liability for sending text messages to someone they know is behind the wheel. Industry
Verizon Agrees to Buy Vodafone Interest in Verizon Wireless for $130 Billion On Monday, Verizon Communications Inc. announced that it would acquire Britain's Vodafone Group Plc to acquire Vodafone's 45% interest in Verizon Wireless for $130 billion in cash and stock. The transaction is subject to customary closing conditions, including regulatory approvals and the approval of both companies' shareholders, and is expected to close in the first quarter of 2014. The Guardian (UK) has reported that chief executives of the two companies thrashed out the deal on Saturday morning, and it was approved by directors of the UK and US businesses on Sunday and Monday. Lowell McAdam, Verizon chairman and CEO, said: "Over the past 13 years, Verizon Wireless has been a key driver of our business strategy, and through our partnership with Vodafone, we have made Verizon Wireless into the premier wireless provider in the U.S. The capabilities to wirelessly stream video and broadband in 4G LTE complement our other assets in fiber, global IP and cloud. These assets position us for the rapidly increasing customer demand for video, machine to machine and big data. We are confident of further growth in wireless, and our business in its entirety." McAdam told Reuters in an interview that discussions with Vodafone CEO Vittorio Colao initially focused on combining Verizon and Vodafone before they decided that buying Vodafone's stake made more sense for both companies. The deal, which is reportedly the third biggest transaction between two companies ever recorded, will be a windfall for bankers as well as Vodafone's shareholders. Verizon will pay Vodafone 58.9 billion in cash from a $61 billion Bridge Credit Agreement already entered into with J.P. Morgan Chase Bank, N.A., Morgan Stanley Senior Funding, Inc., Bank of America, N.A. and Barclays. Verizon intends to reduce the commitments under the Bridge Credit Agreement with the issuance of permanent financing. As a wholly owned entity, Verizon believes its wireless unit will be better equipped to take advantage of the changing competitive dynamics in the market and capitalize on the continuing evolution of consumer demand for wireless, video and broadband services. Nokia to sell mobile phone business to Microsoft In another deal announced late Monday, Microsoft Corporation announced that it had reached an agreement to purchase the core cellphone business of Finland's Nokia for approximately $7.2 billion in cash. As part of the deal, Microsoft will gain some 32,000 Nokia employees and patents to drive Microsoft's move into the mobile handset business. Microsoft will also regain the services of Stephen Elop, the chief executive of Nokia, who is expected to become successor to Microsoft CEO Steve Ballmer, who has announced plans to retire within 12 months. Prior to joining Nokia as CEO in September of 2010, Elop, who is a Canadian citizen, was head of Microsoft's Business Division. In this capacity, he was responsible for the Microsoft Office and Microsoft Dynamics (enterprise resource planning and customer relationship management) line of products. With this move into the wireless handset business, Microsoft is following the models of Apple, which has long manufactured devices that use the Company's software, and Google, which acquired the mobile phone business and patents of Motorola Mobility to bolster its development of products that use the Android operating system. But it has a long way to catch up. Microsoft currently holds about 3.2 percent of the mobile OS market as of the first quarter of 2013. In comparison, Apple's iOS is reported as having 17.3 percent of the market and Google's Android has a whopping 75 percent of the market. Industry analysts have long speculated that Microsoft and Nokia would someday combine forces. The recent introduction by Nokia of the 41 megapixel Lumia 1020 camera phone, which uses the Windows Phone 8 operating system, marked a bold move in the mobile phone marketplace, and Elop's move to Nokia was seen by some as a "trojan horse" for Microsoft's strategic efforts. The deal also represents the latest reinvention of the 150-year-old Finnish company, which began life as a manufacturer of rubber boots and car tires before retooling itself in the 1980s to become the world's largest manufacturer of cellphones. Nokia's fall has been swift and spectacular. As recently as 2010, Nokia was reported as controlling more than 60 percent of the smartphone market in China. By the first half of 2013, Nokia's market share had dropped to just one percent. Calendar At A Glance
Sept. 8 – Electronic filing deadline for Form 497 for carriers seeking support for the preceding month and wishing to receive reimbursement by month's end.
Sept. 16 – Comments are due on FCC's Notice of Proposed Rulemaking on E-Rate 2.0.
Sept. 18 – Reply Comments on reforms to protect VRS program are due.
Sept. 18 – Comments are due on FCC's Notice of Proposed Rulemaking on Advanced Wireless Services.
Sept. 20 – Regulatory fees are due.
Sept. 26 – FCC Open Meeting
Sept. 27 – Challenges to FCC Census Blocks that price cap carriers have requested funding to serve as part of the second round of CAF Phase I are due.
Oct. 8 – Electronic filing deadline for Form 497 for carriers seeking support for the preceding month and wishing to receive reimbursement by month's end.
Oct. 14 – Deadline to seek extension of CALM Act small provider grace period.
Oct. 15 – Filing deadline for FCC Form 481
Oct. 16 – Reply Comments are due on FCC's Notice of Proposed Rulemaking on E-Rate 2.0.
Oct. 16 – Reply Comments are due on FCC's Notice of Proposed Rulemaking on Advanced Wireless Services.
Oct. 28 – Responses to FCC Census Blocks that price cap carriers have requested funding to serve as part of the second round of CAF Phase I are due.
Nov. 1 – Reply Comments are due on FCC's guidelines for human exposure to RF electromagnetic fields. | 
David George and Bill Noyes
