Selected portions of the BloostonLaw Telecom Update, and/or the BloostonLaw Private Users Update — newsletters from the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP are reproduced in this section with the firm's permission. 
| BloostonLaw Telecom Update | Vol. 17, No. 7 | February 19, 2014 |
Headlines
FCC Deciding 600 MHz Auction Sizes, Industry Input Sought ASAP The FCC is nearing a decision on the number and size of licenses to be sold in the 600 MHz auction that will be held next year, using spectrum reclaimed from broadcasters pursuant to the “incentive auction” process mandated by Congress. The Blooston Rural Carriers filed comments last month supporting the use of the 734 Cellular Market Areas (CMAs) as the license size for this auction, since this had been used for several prior auctions and has given small and rural carriers a realistic opportunity to purchase spectrum. Unfortunately, it appears that the FCC will NOT be utilizing CMAs as the license size for 600 MHz. The Commission’s proposal is to utilize Economic Areas (EAs), which afford relatively reasonable license sizes in many East Coast states but result in very large license areas west of the Mississippi. Moreover, EAs often are centered around significant-sized cities or towns, which means that rural carriers seeking to provide wireless in and around their current service areas would have to bid for a much larger area than they want, and often against well-heeled bidders. NTCA and RWA are trying to cobble together a more moderate alternative, which would combine CMAs where possible, to bring the total number of licenses down to approximately 400. To help with that process, we are seeking input from clients that may be interested in participating in the 600 MHz auction, to determine if there are any situations in which CMAs can be combined in a way that would not hinder the ability of small and rural carriers to bid; and to determine if any of the proposed combining of CMAs already on the table create issues that can be resolved by alternative map changes. The FCC is seeking input within the next few business days, so any clients interested in pursuing this matter should contact us ASAP. FCC Establishes New Open Internet Docket On February 19, the FCC released a Public Notice establishing a remand proceeding “within which to consider how the Commission should proceed in light of the court’s guidance in the Verizon v. FCC opinion.” Although the FCC has not provided a deadline for comments on the remand, the Public Notice indicates that comments filed within the next thirty days will be “especially helpful.” Carriers interested in filing comments should therefore plan to file by March 21, 2014. As we reported in the January 15 edition of the BloostonLaw Telecom Update, on January 14, 2014, the United States Court of Appeals for the District of Columbia Circuit affirmed the FCC’s authority to regulate broadband Internet access service and upheld the transparency rule, but vacated the no-blocking and no-discrimination rules as impermissible common carrier regulation of an information service. The court remanded the Open Internet Order to the Commission for further proceedings consistent with its opinion. In a statement on the establishment of the new docket (GN 14-28), Commissioner Tom Wheeler said the FCC intends to propose new rules which: (i) enforce and enhance the existing transparency rule; (ii) fulfill the “no blocking” goal; and (iii) fulfill the goals of the no-discrimination rule. He also indicated that the FCC would not seek review of the Verizon decision. Rather, the FCC will seek comment through a formal rule making on the specific rules for preserving and protecting the open Internet in line with the court’s decision. FCC Seeks Comment on FCC Process Reform Report The FCC has issued a Public Notice seeking comment on the FCC staff Report on FCC Process Reform. According to the Public Notice, the Report seeks to further the goal of having the FCC operate in the most effective, efficient and transparent way possible. It examines the FCC’s internal operations with the aim of improving the overall functioning of the agency and its service to the public, and includes a comprehensive list of proposed recommendations for process reform at the Commission. Comments are due March 31. A number of recommendations are relevant to rural carriers. For example, Recommendation 1.1 would require the FCC to perform an intake analysis on every new filing and prepare a timeline to allow interested parties to track the proceeding and ensure it is completed in a timely fashion, or amended as necessary. This could help avoid situations where waivers are filed and left unacted-upon for years on end. Recommendation 3.10 proposes the adoption of a minimum comment period for significant regulatory actions, which may help ensure carriers have sufficient time to review FCC orders and prepare appropriate comments. Although the Report proposes more than 150 process reform recommendations covering a wide range of specific topics, they generally aim to advance the following goals: - Improving the efficiency and effectiveness of the FCC’s decision-making process by streamlining the internal FCC review process, improving tracking accountability, and reducing backlogs;
- Processing items before the agency more quickly and more transparently by accelerating the overall speed, and ensuring the public is provided more information regarding the status of particular matters;
- Streamlining agency processes and data collections, including reworking essential processes such as licensing activities, internal distribution and release procedures;
- Eliminating or streamlining outdated rules;
- Improving interactions with external stakeholders by enhancing the FCC’s public outreach and transparency;
- Maximizing the Commission’s tools and resources by ensuring effective internal communications, human resource management, and training; and
- Modernizing the Commission’s information technology infrastructure to improve its website functionality, data management, and tracking capability
Oppositions to Reconsideration Petitions of Rural Call Completion Order The FCC has set the pleading cycle on the Petitions for Reconsideration of the Rural Call Completion Order filed by Transcom Enhanced Services (Transcom), COMPTEL, Carolina West Wireless (CWW), Sprint, and USTelecom and ITTA. Oppositions are due March 3 and replies to oppositions are due March 11. As we reported in the January 23 edition of the BloostonLaw Telecom Update, six petitions for reconsideration of the FCC’s Rural Call Completion Order were filed on January 16, 2014. Most relevant to our clients, Comptel asked for reconsideration of the FCC’s small carrier exemption. According to Comptel, the small carrier exemption that the FCC adopted in the Rural Call Completion Order is substantially narrower than the proposed small carrier exemption from the Notice of Proposed Rulemaking. Transcom asked the FCC to expressly limit the Rural Call Completion Order and its associated rules to common carriers. USTelecom and ITTA asked the FCC to exclude call attempt data related to intra-LATA inter-exchange toll calls the FCC’s call completion reporting requirement. Sprint asked the FCC to reconsider its decision to use the required call completion reports as the basis for subsequent enforcement action, because according to Sprint the FCC has provided no guidance as to what behaviors by covered carriers it considers unreasonable, or what performance results are actionable and therefore could trigger enforcement action against a covered carrier. CWW asked the FCC to modify the definition of “covered provider” so that the lines served by non-controlling minority owners are not counted toward the 100,000 line threshold. Carriers interested in supporting or opposing any of the Petitions for Reconsideration should contact the firm without delay. PCIA and Distributed Antenna Proponents Seek Streamlined Rules for Small Cell Deployments In response to a recent NPRM on improving the FCC’s wireless facilities siting policies, wireless infrastructure advocacy groups are asking the Commission to amend its rules and “categorically exclude” distributed antenna systems and small cell deployments from environmental and historic review. PCIA—The Wireless Infrastructure Association and a working group of PCIA dedicated to the advancement of heterogeneous wireless networks filed comments earlier this month urging the FCC to encourage greater deployment of distributed antenna systems (or “DAS”) and small cells. Other recommended rule changes include updating the FCC’s collocation categorical exclusion to include collocation on all structures; clarifying that the corridor categorical exclusion includes DAS and small cell components; and adopting new exclusions for (i) certain DAS and small cell components located outside of existing corridors, (ii) collocations on utility poles and other non-tower structures over forty-five years old, (iii) collocations and new poles in utility or communications rights-of-way, and (iv) replacement utility poles or non-tower structures. DAS and small cells are newer technologies that can address capacity and coverage needs and possess low profiles that make them desirable in historic areas. PCIA and the HetNet Forum (f.k.a. the DAS Forum) believe that an exemption from environmental and historic review is appropriate because DAS and small cell installations have limited visual impacts, involve minimal ground disturbance, and generally occur in existing public rights of way where some ground disturbance is to be expected. “By removing barriers to the deployment of newer technologies like DAS and small cells, and refining its rules for collocations, the FCC can facilitate greater coverage and capacity of wireless broadband networks,” wrote PCIA. The PCIA Comments also ask the FCC to clarify the requirements of Section 6409(a) of the Spectrum Act, which provides that “a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station,” including requests to “collocat[e] new transmission equipment.” Specifically, PCIA urges the Commission to define key terms used in the statute to avoid the potential for inconsistent court rulings, and to set baseline limits for application processing (e.g., “shot clocks”) to ensure that the statute’s “may not deny, and shall approve” mandate is carried out. Finally, the PCIA Comments urge the Commission to make permanent its environmental notification waiver for temporary towers and adopt other proposed guidelines for temporary towers. “Temporary towers that meet these guidelines do not have the potential for significant environmental effects, but will benefit the public by addressing short-term coverage and capacity needs,” wrote PCIA. A ruling in the FCC’s facilities siting policies docket (WT Docket No. 13-238) is expected later this year. Clients interested in supporting or otherwise responding to PCIA’s proposal should contact us promptly. Law & Regulation
FCC Issues Agenda for February Open Meeting The FCC issued the agenda for its February 20, 2014 Open Meeting. The Open Meeting will be held at 10:30 a.m., and audio/video coverage of the meeting will be broadcast live with open captioning over the Internet from the FCC Live web page at www.fcc.gov/live . At the meeting, the FCC will consider: (i) a Third Notice of Proposed Rulemaking to ensure that accurate caller location information is automatically provided to public safety officials for all wireless calls to 911, including indoor calls, to meet consumer and public safety needs and expectations, and to take advantage of new technological developments, and (ii) a Report and Order, Declaratory Ruling, and Further Notice of Proposed Rulemaking that addresses the quality and technical compliance of closed captioning on television programming to ensure that video programming is fully accessible to individuals who are deaf and hard of hearing.
The FCC will also consider three applications for review of decisions by the Media Bureau. Senate Democrats Introduce Cell Phone “Kill Switch” Bill In an effort to curb the growing problem of smartphone theft, four Democratic Senators have proposed Federal “kill-switch” legislation that would mandate a technology that allows consumers to remotely wipe personal data from their smartphones and render them inoperable when stolen. A bill known as the Smartphone Theft Prevention Act, was introduced last week by Senator Amy Klobuchar (D-Minn) and co-sponsored by Senators Barbara Mikulski (D-MD), Richard Blumenthal (D-CT), and Mazie Hirono (D-HI). Text of the proposal obtained from the Washington Post indicates that it would amend the Communications Act to impose obligations on device manufacturers and mobile service providers to make kill-switch functionality available on all mobile data devices manufactured or imported into the United States after January 1, 2015. “Cell phone theft has become a big business for thieves looking to cash in on these devices and any valuable information they contain, costing consumers more than $30 billion every year and endangering countless theft victims,” Senator Klobuchar said. “This legislation will help eliminate the incentives for criminals to target smartphones by empowering victims to take steps to keep their information private, protect their identity and finances, and render the phone inoperable to the thieves.” Last summer, Apple implemented a "kill switch"-style update designed to make mobile devices less valuable to thieves. The Activation Lock feature included as part of its iOS 7 requires an Apple ID and password before the phone's "Find My iPhone" feature can be turned off or any data can be erased. Samsung has reportedly also been working on its own kill-switch technology for Android devices. The proposed Federal legislation would allow only a phone’s owner or someone authorized by a phone’s owner to activate the kill switch, and it would give the FCC authority to issue forfeitures against carriers and manufacturers who fail to make kill-switch technology available. Imposing legal obligations and potential fines upon small carriers is troubling because, like in the HAC context, small carriers have little or no ability to influence the design or functionality of wireless devices that are available to them. The Senate kill-switch proposal comes on the heels of a California proposal that would require wireless device manufacturers to include the function on all devices or face fines of up to $2,500 for each device sold without kill switch functionality (see BloostonLaw Telecom Update - February 12 2014). A similar bill has been under discussion in Minnesota . Prospects for this legislation being approved by both houses and signed into law are unclear, but we expect the debate about “kill-switch” technology will continue. CTIA and larger wireless carriers have rejected the idea of such a kill switch noting that once the switch is used, the device is “bricked” and cannot be reused. Opponents have also argued that a kill switch could be a target for hackers seeking to harm individuals or larger groups of users like the Defense Department, Homeland Security or law enforcement officials. Representative Eshoo Doubts Net Neutrality Bill Will Pass As reported in the February 5, 2014 edition of the BloostonLaw Telecom Update, Rep. Henry A. Waxman (D-Calif.), along with and Representative Anna G. Eshoo (D-Calif.), introduced a limited duration net neutrality bill that could pressure the Federal Communications Commission into action on net neutrality. The bill, known as the Open Internet Preservation Act, is a response to the January 14, 2014 decision by the United States Court of Appeals for the District of Columbia Circuit in Verizon v. Federal Communications Commission, which vacated the FCC’s net neutrality rules. Those rules prevented Internet providers from blocking or slowing access to certain websites. If enacted, the proposed legislation would grant limited relief by temporarily putting back on the books the FCC’s Open Internet Rules vacated by the Court “during the period beginning on the date of the enactment of this Act and ending on the date when the Commission takes final action in the proceedings remanded to the Commission in that decision;” and goes on to authorize the Commission to “continue to adjudicate cases regarding violations of the rules … that occurred during such period.” However, in a recent interview with C-SPAN’s Communicators series, Rep. Eshoo conceded that it would not become law. She stated that she introduced the bill because it reflected the will of millions and millions of people “that want the Internet to remain accessible and open and free to them,” and she sees that as an important principle. Since she does not see the proposed legislation being enacted, she said that the future of net neutrality “will be in the hands of the FCC. So, let’s see what they do.” Industry
Comcast Seeks to Buy Time Warner, Create Largest Television and Internet Provider in U.S. On February 13, Comcast announced that it had agreed to buy competitor Time Warner Cable for $45 billion, thereby combining the two biggest cable companies in the United States. If approved, the deal will no doubt create a dominant service provider for television and Internet, reaching approximately one in three homes, reports CNN . CNN further reports that the companies expect the merger to take effect by the end of the year, assuming regulators approve the deal. Comcast has indicated to address regulators’ concerns, it is prepared to divest approximately 3 million subscribers (approximately 10%, leaving some 30 million). Our readers may recall that Time Warner rejected a bid by Charter about a month ago (BloostonLaw Telecom Update of January 15, 2014). Charter had offered approximately $130 per share but was rejected by Time Warner, whose CEO suggested $160 would be closer to the mark – almost exactly what Comcast offered. A number of voices have raised concerns about the deal, both on the Hill and off. Broadcasting & Cable reports that Sen. Amy Klobuchar (D-Minn.), a member of the committee as well as chair of its antitrust subcommittee, has already signaled she will be holding a hearing on the merger. Sen. Jay Rockefeller (D-W.Va.) said, “The proposed merger of Comcast and Time Warner Cable raises serious questions that deserve thorough scrutiny . . . the threshold question must be whether the creation of an even larger video and broadband juggernaut results in greater choice and lower rates for consumers. This has not been my experience with previous mergers of this size.” In an interview on CNN, Sen. Al Franken (D-Minn.), said that the deal was going exactly in the wrong direction if the idea was to promote competition. Public Knowledge posted a Policy Blog stating that a merger between Comcast and Time Warner Cable would create a dominant gatekeeper for content providers and would only lead to fewer choices and higher prices for consumers. For example, Public Knowledge notes, online video providers like Netflix need Comcast in order to reach their audience — but Comcast owns NBC and Universal Studios as well as its own cable channels, meaning Comcast already has an incentive to favor its content over that of competitors. In the wake of the vacating of the FCC’s no-blocking and no-discrimination rules, Comcast could be free to do just that, so long as it notified customers of its practices. Deadlines
MARCH 1: CPNI ANNUAL CERTIFICATION . Carriers should modify (as necessary) and complete their "Annual Certification of CPNI Compliance" for 2013. The certification must normally be filed with the FCC by March 1. Because March 1 is a Saturday this year, per FCC Enforcement Bureau, carriers who may not be able to file on March 1 should plan to file by Friday, February 28. Note that the annual certification should include the following three required Exhibits: (a) a detailed Statement Explaining How the Company's Operating Procedures Ensure Compliance with the FCC'S CPNI Rules to reflect the Company's policies and information; (b) a Statement of Actions Taken Against Data Brokers; and (c) a Summary of Customer Complaints Regarding Unauthorized Release of CPNI. A company officer with personal knowledge that the company has established operating procedures adequate to ensure compliance with the rules must execute the Certification, place a copy of the Certification and accompanying Exhibits in the Company's CPNI Compliance Records, and file the certification with the FCC in the correct fashion. Our clients can forward the original to BloostonLaw in time for the firm to make the filing with the FCC by March 3, if desired. BloostonLaw is prepared to help our clients meet this requirement, which we expect will be strictly enforced, by assisting with preparation of their certification filing; reviewing the filing to make sure that the required showings are made; filing the certification with the FCC, and obtaining a proof-of-filing copy for your records. Please note, that BloostonLaw will respond to any requests concerning the filing of the CPNI report within 24 hours of receipt. If you do not receive a response within this timeframe, please contact the office to ensure that your request has been received. Clients interested in obtaining BloostonLaw's CPNI compliance manual should contact Gerry Duffy (202-828-5528). Note: If you file the CPNI certification, you must also file the FCC Form 499-A Telecom Reporting Worksheet by April 1. Calendar At-A-Glance
February
Feb. 20 – Open Meeting.
Feb. 21 – Comments on NECA 2014 Average Schedule Formulas are due.
Feb. 21 – Reply comments due on American Tower Petition for Waiver of Periodic Inspection of Marking and Lighting Alarm System Rules.
Feb. 25 – Auction 902
Feb. 28 – PRA comments on Rural Call Completion are due.
Feb. 28 – Petitions to Deny T-Mobile/Verizon Spectrum Sale are due. March
Mar. 1 – Annual CPNI Certification is due.
Mar. 3 – Copyright Statement of Account Form for cable companies is due.
Mar. 3 – FCC Form 477 (Local Competition & Broadband Reporting) is due.
Mar. 3 – Comments on the Wireline Competition Bureau's VoIP Numbering Trial Report are due.
Mar. 3 – Reply comments on Public Knowledge's Petition for Declaratory Ruling on CPNI are due.
Mar. 7 – Initial expressions of interest in rural broadband experiments are due.
Mar. 7 – Reply comments on NECA 2014 Average Schedule Formulas are due.
Mar. 10 – Oppositions to Petitions to Deny T-Mobile/Verizon Spectrum Sale are due.
Mar. 10 – Electronic filing deadline for Form 497 for carriers seeking support for the preceding month and wishing to receive reimbursement by month's end.
Mar. 11 –– Replies to Oppositions to Petitions for Reconsideration on Rural Call Completion Order are due.
Mar. 17 – Reply comments are due on Use of Mobile Wireless Devices on Airborne Aircraft.
Mar. 17 – Replies to Oppositions to Petitions to Deny T-Mobile/Verizon Spectrum Sale are due.
Mar. 31 – FCC Form 525 (Delayed Phase-down CETC Line Counts) is due.
Mar. 31 – FCC Form 508 (ICLS Projected Annual Common Line Requirement) is due.
Mar. 31 – Comments on FCC Process Reform Report are due. April
Apr. 1 – FCC Form 499-A (Telecommunications Reporting Worksheet) is due.
Apr. 1 – Annual Accessibility Certification is due.
Apr. 1 – PRA comments on Form 477 (Local Telephone Competition and Broadband Reporting) are due. | 
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