Selected portions of the BloostonLaw Telecom Update, and/or the BloostonLaw Private Users Update — newsletters from the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP are reproduced in this section with the firm’s permission.
| BloostonLaw Telecom Update | Vol. 18, No. 15 | April 8, 2015 |
PSAP Text-to-911 Readiness Registry Updated, October 7 Deadline Established for Compliance On April 7, the FCC’s Public Safety and Homeland Security Bureau (PSHB) issued a Public Notice indicating that it has updated the Text-to-911 Readiness and Certification Registry (now current through March 2, 2015). Pursuant to the Commission’s text-to-911 rules, covered text providers must begin routing 911 text messages to requesting PSAPs within six months (October 7, 2015), although an alternate timeframe may be “agreed to by both the PSAP and the covered text provider.” The PSHB reminds covered text providers to periodically review the text-readiness of PSAPs in their service areas, since covered text providers still must provide text-to-911 service within six months of receiving a valid PSAP request, irrespective of whether a PSAP has registered as ‘text-ready’ with the Commission. Headlines
FCC Seeks to Curb Fraudulent 911 Calls from Non-Service-Initialized Devices You know that old cell phone that you keep in the glove compartment of your car “just in case” you need to call 911 and don’t have a phone with you? The one you aren’t paying for because wireless carriers are obligated to transmit all 911 calls? That long-trusted backup plan could soon fall through if the FCC adopts a proposal that is supported by many of the nation’s leading public safety organizations. In an effort to curb fraudulent 911 calls from wireless phones that lack call back capability, the Commission last week adopted and released an NPRM in PS Docket No. 08-51 ( FCC 15-43 ) that is proposing to sunset the requirement for CMRS providers to transmit all wireless 911 calls “without respect to their call validation process.” Comments on the Commission’s proposals will be due 30 days after the NPRM is published in the Federal Register, with reply comments due 60 days following Federal Register publication. Along with requiring CMRS providers to transmit 911 calls from customers with service contracts, the FCC’s 911 “all calls” rule currently requires carriers to transmit 911 calls originating from “non-service-initialized” (NSI) devices to PSAPs. An NSI device is a mobile device for which there is no valid service contract with any CMRS provider. As such, NSI devices have no associated subscriber name and address, and do not provide Automatic Number Identification (ANI) or call-back features. Because of these limitations, when a caller uses a NSI device to call 911, the PSAP typically cannot identify the caller. When the FCC adopted the 911 “all calls” rule in 1996, the Commission recognized that this requirement — designed to limit lengthy manual call validation processes for unidentified callers — could also lead to a rash of hoax and false alarm calls. Public safety organizations like NENA supported the “all calls” rule at the time because a significant number of 911 calls from NSI devices were legitimate. But in the nearly two decades since the rules were adopted, call validation methods of concern to the FCC are no longer in use and low-cost options for wireless services have increased. The Commission believes that these trends suggest that the NSI component of the requirement is no longer needed to ensure that wireless callers have access to emergency services. More significantly however, public safety organizations that previously supported the NSI call-forwarding requirement have recently come to a consensus view that requiring 911 call forwarding from NSI devices does more harm than good. For these reasons, the FCC is now proposing to sunset the NSI component of the rule after a six-month transition period that will allow for public outreach and education. The Commission seeks comment on what technical and operational changes, if any, CMRS providers and/or PSAPs would need to implement in connection with the sunset of the NSI rule. The FCC anticipates that any costs associated with discontinuing call-forwarding of 911 calls from NSI devices as of the six-month sunset date would be relatively minor, but it seeks comment on whether this assumption is correct. The NPRM also seeks comment on alternative approaches to addressing the issue of fraudulent calls from NSI devices. We anticipate that the Commission’s decision making in this proceeding will be largely driven by comments from public safety organizations, PSAPs and the public at large. However, we recommend that our clients who provide CMRS service speak with their vendors to confirm that the costs of discontinuing NSI 911 call-forwarding are not objectionable, and to file comments to seek a smooth transition from the old regime. Last week, the U.S. District Court of Northern California issued an Order denying AT&T’s motion to dismiss the FTC complaint pending against the company because it is statutorily exempt from FTC jurisdiction as a common carrier. The court ruled the common carrier exception applies only where the entity has both the status of common carrier and is actually engaging in common carrier activity – an important distinction because at the time of the alleged misconduct, AT&T’s mobile data service was not regulated as common carrier activity by the FCC. As we reported in the October 29 edition of the BloostonLaw Telecom Update, the FTC filed suit against AT&T alleging that the company had failed to adequately disclose to its customers with unlimited data plans that once they reach a certain amount of data use in a given billing cycle, the company throttles their data speeds by up to 90 percent. The practice allegedly began in July of 2011, and imposed restrictions when a customer’s monthly data usage threshold in some markets was as low as 2 GB per billing cycle in high density markets like New York City and the San Francisco Bay Area. The complaint seeks a permanent injunction to prevent future violations of the FTC Act, and could result in significant fines against AT&T, as well as refunds being paid to AT&T customers who were harmed by the practice. Although the FCC’s recent Open Internet Order makes throttling illegal, those rules were not in effect at the time of the activity in question (and indeed, they are technically not yet effective even today), and in any event the FTC’s complaint is not based on the actual practice of throttling, but rather the deceptive nature with which AT&T went about advertising the service. It will be interesting to see whether the Open Internet rules will have an impact on the prospective relief sought by the FTC in the form of a permanent injunction. NARUC Files Response to Oppositions to Petition for Writ of Certiorari The National Association of Regulatory Utility Commissioners (NARUC) filed a response to the Oppositions filed by the FCC and AT&T et al. to its petition for certiorari, seeking Supreme Court review of the FCC's Transformation Order , which was upheld by the 10th Circuit Court of Appeals. In its Reply, NARUC argues that neither the FCC nor AT&T provides any substantive response to its argument that the 10th Circuit failed to provide the statutory analysis required to determine when Chevron deference is appropriate. NARUC also argues that the oppositions either do not address or address only in part the flaws in the 10th Circuit’s decision identified by NARUC, including the arguments that (1) the FCC’s new interpretation of the Communications Act renders surplus the mandated State role to specifically assure the reciprocal compensation rate complies with the §252(d)(2) cost standard; (2) the FCC’s elimination of the State responsibility under §252(d)(2) renders surplus §252(e)(5), which permits the FCC to act only if the State fails to act; and (3) the zero bill-and-keep rate the FCC has mandated for all (even non-reciprocal) traffic bears no resemblance to the “bill-and-keep” arrangements the statute “does not preclude." The filing of NARUC's response sets the stage for the Supreme Court to decide within the next few weeks whether it will hear the case. AT&T Settles Data Breach Investigations for $25 Million On April 8, the FCC’s Enforcement Bureau released a Consent Decree into which it entered with AT&T Services, Inc. to resolve its investigation into whether AT&T “failed to properly protect the confidentiality of almost 280,000 customers’ proprietary information, including sensitive personal information such as customers’ names and at least the last four digits of their Social Security numbers, as well as account-related data known as customer proprietary network information.” According to the Consent Decree, the breaches, which took place in AT&T call centers in Mexico, Columbia, and the Philippines, resulted in the use of personal information of 51,422 AT&T customers to place 290,803 handset unlock requests through AT&T’s online customer unlock request portal. The Mexico breach, which is believed to have lasted from November 4, 2013 until April 21, 2014, was perpetrated by three Mexico Call Center employees who accessed 68,701 customers’ accounts. During the course of the FCC’s investigation, AT&T informed the FCC of the breaches in Columbia and the Philippines, in which call center employees there had also accessed customer accounts in order to obtain unlock codes for AT&T mobile phones. In all three cases, the employees were also able to access other CPNI, such as Social Security numbers. AT&T informed the Bureau that based on its investigation to date, it had identified approximately 211,000 customer accounts that were accessed in connection with the unlock code activities in the Colombian and Philippines facilities. At least two employees believed to have engaged in the unauthorized access confessed that they sold the information obtained from the breaches to a third party, known to them as “El Pelon.” Law & Regulation
FCC Plans to Fine Roman LD $5.9 Million for Slamming On April 2, the FCC issued a Notice of Apparent Liability for Forfeiture in the amount of $5.9 million against Roman LD, Inc. (Roman) for allegedly misrepresenting its identity to consumers in order to deceive them into believing its telemarketing call was from the consumer’s own carrier and for fabricating audio “verification” recordings, as well as submitting requests to change or switch consumers’ preferred long distance carriers based on those misrepresentations. Roman also allegedly failed to seek and obtain Commission approval before transferring control of the Company to Monotaz Begum on January 2, 2013. The FCC indicated that it took this action after reviewing over 100 consumer complaints filed with the Commission, state regulatory agencies, the Better Business Bureau (BBB), and directly with Roman or its billing aggregator, most of which arise from carrier changes that took place within the twelve-month period prior to the release of the Notice. According to the Notice, two complainants, after listening to Roman’s recorded “verification,” concluded that parts of their conversation were used to fabricate their authorization. Complainant Sidney explained that the “yes” in the recording is her voice but the Roman telemarketer “pieced together [the recorded] conversation to make it seem as if I was agreeing to a service from them when they called disguised as AT&T with a rebate for me since I was a new [AT&T] customer.” K. Ethredge, from Graphic Results, stated in her complaint that “Roman LD had approached me as ‘AT&T’ with a discount offer to lower my phone bill [by 35 percent]. . . and he said that he just needed to verify information of mine.” After listening to the recording, Ms. Ethredge was sure that “they just copied and pasted my answers to where they could.” Roman is an inter-exchange carrier that provides domestic and international long distance telecommunications service in various states, primarily in Texas, Oklahoma, Georgia, North Carolina, South Carolina, and Florida. The Notice gives Roman 30 days to either pay the full amount of the proposed forfeiture or file a written statement seeking reduction or cancellation of the forfeiture pursuant to FCC procedure. FCC Issues $17.4 Million in Fines Against CenturyLink and Intrado Communications for 911 Failures The Federal Communications Commission has reached a settlement with CenturyLink and Intrado Communications in connection with a 911 service outage that was unrelated to adverse weather conditions or other natural catastrophe. This six-hour outage, which affected public safety call centers in Washington State, Minnesota, North Carolina, Florida, South Carolina and Pennsylvania, resulted in over 6,600 calls for emergency service being missed – including for domestic violence, assaults, motor vehicle collisions, a heart attack, a drug overdose and an intruder breaking into a residence. CenturyLink’s $16 million settlement results in the largest 911 related fine ever assessed by the FCC. The FCC concluded that because the outage was not the result of an “extraordinary natural disaster or other unforeseeable catastrophe,” the outage would have been preventable had CenturyLink and Intrado implemented basic safeguards. Additionally, the FCC noted that both CenturyLink and Intrado had failed to make timely notifications to the affected public safety call centers. Tom Wheeler, Chairman of the FCC stated that “Americans need to be confident that the service they use to reach first responders is reliable and accessible in their time of need.” Mr. Wheeler continued that “[p]roviders [of 911 services] have a responsibility to ensure that all Americans can use 911 to call for help any time. When a company fails to live up to its obligations, it will be held accountable.” The Chief of the FCC’s Enforcement Bureau, Travis LeBlanc, stated that “[d]elivering 911 calls is one of the most important public safety responsibilities a phone company has” and “[w]e will aggressively enforce the Commission’s 911 rules whenever the public’s trust in 911 is undermined.” As part of the settlement, CenturyLink and Intrado Communications agreed to adopt comprehensive compliance plans that will require the to implement appropriate risk management procedures. In particular, CenturyLink and Intrado Communications will be required to take steps in the evolving NG911 environment to: - Identify risks that could result in disruptions to 911 service;
- Take action against any identified risk
- Detect all future 911 outages
- Respond to any 911 outages in a timely manner with remedial actions, including: prompt notification to any affected emergency call center; and
- Recover from any outages on a timely basis.
Additionally, the companies will be required to develop appropriate measures to detect disruptions in 911 service in network facilities under its direct control; develop and implement procedures to maintain current contact information for officials designated to receive outage notifications at each PSAP that it serves; examine the PSAP notification processes utilized by its affiliates; and establish clear operational roles and responsibilities with its affiliates to improve situational awareness and information sharing. To the extent that you are providing 911 service to public safety call centers, it is critically important that steps be taken to ensure the reliability of your service. We recommend that contingency plans be put in place and that in the unlikely event of a failure, timely notification be made to the affected public safety call centers. FCC Sends Open Internet Order for Federal Register Publication Last week, The Wall Street Journal and other news sources reported that the FCC sent its Open Internet Order out to be published in the Federal Register on April 1. As our clients know, the publication of the Order in the Federal Register triggers two key events in the life of any FCC order: it sets the effective date for the rules adopted therein, and starts the period for filing Petitions for Reconsideration (before the FCC) or Applications for Review (before the circuit courts). Given the many promises of litigation made by large carriers like AT&T regarding the order, and not to mention the two Applications for Review have already been filed prematurely, it’s safe to say the Order’s publication has been highly anticipated.
BloostonLaw Contacts: Ben Dickens, Industry
Recent Study Indicates 19% of Americans Depend on Phone for Internet Access According to a study by the Pew Research Center, in association with the John S. and James L. Knight Foundation, nearly two-thirds of Americans own a smartphone, and 19% of Americans rely to some degree on a smartphone for accessing online services and information and for staying connected to the world around them — either because they lack broadband at home, or because they have few options for online access other than their cell phone. 7% of respondents indicated they own a smartphone but have neither traditional broadband service at home, nor easily available alternatives for going online other than their cell phone. Other findings include: - 64% of American adults now own a smartphone of some kind, up from 35% in the spring of 2011.
- 10% of Americans own a smartphone but do not have broadband at home, and 15% own a smartphone but say that they have a limited number of options for going online other than their cell phones.
- Smartphones are widely used for navigating numerous important life activities, from researching a health condition to accessing educational resources. Lower-income and “smartphone-dependent” users are especially likely to turn to their phones for navigating job and employment resources.
- A majority of smartphone owners use their phone to follow along with breaking news, and to share and be informed about happenings in their local community.
- Smartphones help users navigate the world around them, from turn-by-turn driving directions to assistance with public transit.
“The traditional notion of ‘going online’ often evokes images of a desktop or laptop computer with a full complement of features, such as a large screen, mouse, keyboard, wires, and a dedicated high-speed connection,” wrote Pew senior researcher Aaron Smith. “But for many Americans, the reality of the online experience is substantially different.” Calendar At A Glance
April
Apr. 13 – Reply comments are due on Letter of Credit Requirements.
Apr. 14 – Deadline for reply comments on Online Public File Expansion NPRM.
Apr. 21 – Reply Comments are due on 911 Policy NPRM. May
May 1 – FCC Form 499-Q (Quarterly Telecommunications Reporting Worksheet) is due.
May 18 – Short Form Tariff Review Plan is due.
May 29 – Comments on Short Form Tariff Review Plans are due. June
Jun. 1 – FCC Form 395 (Annual Employment Report) is due.
Jun. 5 – Reply comments on Short Form Tariff Review Plans are due.
Jun. 16 – Tariffs filed on 15 days’ notice are due.
Jun. 23 – Petitions to Suspend or Reject Tariffs filed on 15 days’ notice are due.
Jun. 24 – Tariffs filed on 7 days’ notice are due.
Jun. 26 – Replies to Petitions to Suspend or Reject Tariffs filed on 15 days’ notice are due.
Jun. 26 – Petitions to Suspend or Reject Tariffs filed on 7 days’ notice are due by noon Eastern Time.
Jun. 29 – Replies to Petitions to Suspend or Reject Tariffs filed on 7 days’ notice due by noon Eastern Time. July
Jul. 1 – FCC Form 481 (Carrier Annual Reporting Data Collection Form) is due.
Jul. 1 – FCC Form 690 (Mobility Fund Phase I Auction Winner Annual Report) is due.
Jul. 31 – FCC Form 507 (Universal Service Quarterly Line Count Update) is due.
Jul. 31 – Carrier Identification Code (CIC) Report is due. | 
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