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. 23 |
June 3, 2015 |
REMINDER: New Requirements In Effect for 2015 Form 481 Filing
Carriers are reminded that new requirements have gone into effect for this year’s annual Form 481 filing, due July 1, 2015. New requirements include: progress report updates; a certification that steps were taken to provide upon reasonable request broadband service at actual speeds of 4 Mbps downstream/1 Mbps upstream; and certain information about the community anchor institutions to which the ETC began offering broadband service in the preceding calendar year.
BloostonLaw is experienced in preparing and filing Form 481, as well as meeting the FCC’s requirements to obtain confidentiality for the filings. Carriers interested in obtaining assistance should contact the firm.
Headlines
Chairman Wheeler Releases Proposal on Modernizing Lifeline to Include Broadband Service
Chairman Wheeler released a set of proposals to restructure and modernize the FCC’s Lifeline program to include broadband service for low-income consumers and to further combat waste and better target lifeline support.
According to the FCC release, the proposal seeks comment on minimum service standards for voice and broadband service "to ensure that both Lifeline subscribers and ratepayers are getting the best possible value from the service delivered." The Notice also proposes to remove providers from the process of ensuring the eligibility of Lifeline subscribers and seeks comment on other ways to verify eligibility, such as establishing a neutral third party administrator. The Notice seeks comment on how to ensure that the program targets those most in need of the support. The Notice also seeks comment on how to encourage providers to participate in the Lifeline program, to ensure competition among providers on price and service offerings.
The official “Fact Sheet” is available here , and the full item will be released sometime after it is voted upon at the upcoming June Open Meeting.
Comment Requested on Petitions for Waiver of the FCC's Opt-Out Rule for FAX Ads
Four Petitioners have requested retroactive waivers of the FCC's section 64.1200(a)(4)(iv) opt-out notice requirement for fax ads. (CG Docket Nos. 02-278 and 05-338) The Petitioners claim that the fax ads were sent to recipients from whom they had obtained prior express invitation or permission. Section 64.1200(a)(4)(iv) of the Commission’s rules requires that an opt-out notice containing certain information be included in fax ads sent to a consumer who has provided prior express invitation or permission. The Petitioners argue that good cause exists for the waivers because they are similarly situated to parties who were granted retroactive waivers from this requirement by the Commission in the recent Anda Order. Comments on the waiver requests are due by June 12, 2015 and reply comments are due by June 19, 2015.
In the Anda Order, the Commission granted retroactive waivers to several individual petitioners because of uncertainty about whether the opt-out notice applied to “solicited” faxes. The Commission also stated that other, similarly situated parties may seek waivers of the rule. Any companies that have sent fax ads that may be in violation of the FCC's rule should contact the firm to determine whether a waiver should be requested.
FCC Seeks Information for Annual Report to Congress on Mobile Wireless Competition
Congress has directed that promoting competition in mobile wireless services should be a cornerstone of the FCC’s mission and is essential for driving innovation, investment, and other consumer benefits. To assist the Commission in fulfilling this requirement and in preparing its annual report to Congress on the state of wireless competition, the FCC Wireless Bureau has issued a Public Notice ( DA 15-647 ) seeking comment and other input on a broad range of topics relevant to assessing competition in the mobile wireless industry. Initial comments and information submissions on the item are due June 29, 2015 and reply comments are due July 14, 2015.
Comments and other data provided to the Bureau will be used to assist the WTB in preparing its Eighteenth Annual Report to Congress on CMRS Competition. This annual report aims to distill information from a variety of sources, including Mosaik Solutions (“Mosaik”), industry associations, financial industry analysts, company filings and news releases, Security and Exchange Commission (“SEC”) filings, trade publications, industry trade and press releases, research firms’ publicly-available data, university researchers and scholarly publications, vendor market product releases, white papers, service provider web sites, and data submitted to the Commission through other data collection efforts such as FCC Form 477, the Numbering Resource Utilization Forecast (“NRUF”), and Measuring Broadband America.
Information gathered during the course of the inquiry will be used to update the information and metrics used in the Seventeenth CMRS Competition Report (DA 14-1862), as well as to enhance the Bureau’s analysis of the mobile wireless marketplace for the Eighteenth Report.
With respect to competitive dynamics within the mobile wireless marketplace generally, the WTB seeks comment on industry metrics such as subscriber counts and total connections, as well as financial indicators such as revenue or profitability. The Bureau also seeks information on network coverage, by spectrum band, technology, geography, and demographics. In addition, the Bureau seeks information on pricing levels and trends and other non-price factors on which service providers compete, as well as on performance metrics for mobile broadband networks, such as speed and latency, including the methodologies used for assessment. Commenters seeking confidential treatment of their submissions may request that their submission, or a specific part thereof, be withheld from public inspection.
To obtain a better understanding of coverage in rural areas and tribal lands, the Bureau is request is looking for comment on the extent of mobile voice and broadband network deployment in these areas. Are there noteworthy trends in deployment in rural areas and tribal lands? Furthermore, regarding rural areas and tribal lands, to what extent do providers offer coverage only in certain parts of these areas, such as near major roads, where they do not market service to residents of those areas?
The Bureau also seeks comment and information on how mobile wireless service providers and spectrum licensees currently use their licensed spectrum. Are certain frequency bands used heavily while others lie fallow, and if so why? How does this vary across different types of geographic areas or in urban, as compared to rural markets?
Clients with questions or who wish to file comments in this proceeding (WT Docket No. 15-125) should contact the firm.
FCC Issues Second Order and FNPRM on Emergency Alerts to Second Screens
On May 28, the FCC released the Second Report and Order and Second Further Notice of Proposed Rulemaking that was originally adopted at its May 21, 2015 Open Meeting, and which extends accessibility rules for emergency alerts to second screens, including tablets, smartphones, laptops, and similar devices and seeks comment on certain aspects of transmitting emergency information.
Specifically, in the Second Report and Order, the FCC concluded that:
- multichannel video programming distributors (“MVPDs”) must pass through a secondary audio stream containing audible emergency information in accordance with Section 79.2 of the Commission’s rules when they permit consumers to access linear programming on tablets, smartphones, laptops, and similar devices over the MVPD’s network as part of their MVPD services.
- manufacturers of apparatus subject to the FCC’s video description and emergency rules must provide a mechanism that “is simple and easy to use for activating the secondary audio stream to access audible emergency information.” The FCC further clarified that individuals who are blind or visually impaired “should not have to navigate through multiple levels of menus or take other time-consuming actions to activate the secondary audio stream when they hear the aural tone signaling that emergency information is being provided visually on the screen.”
In the Second FNPRM, the FCC sought comment on three issues:
- whether it should adopt rules regarding how covered entities should prioritize emergency information conveyed aurally on the secondary audio stream when more than one source of visual emergency information is presented on-screen at the same time;
- whether it should reconsider the Commission’s requirement for “school closings and changes in school bus schedules” resulting from emergency situations to be conveyed aurally on the secondary audio stream, considering the length of such information and the limits of the secondary audio stream; and
- whether it should require MVPDs to ensure that the navigation devices that they provide to subscribers include a simple and easy to use activation mechanism for accessing audible emergency information on the secondary audio stream, and to provide a simple and easy to use mechanism to activate the secondary audio stream for emergency information when they permit subscribers to view linear programming on mobile and other devices as part of their MVPD services.
Comments on the Second FNPRM will be due 30 days after the item is published in the Federal Register, with reply comments coming due another 30 days after that.
Law & Regulation
Rural Broadband Experiments Support Authorized for 15 Provisionally Selected Bids
On May 27, the FCC’s Wireline Competition Bureau issued a Public Notice announcing it is ready to authorize rural broadband experiments support for 15 provisionally selected bids. To be authorized to receive support, the provisionally selected winning bidders must submit at least one acceptable irrevocable stand-by letter of credit and Bankruptcy Code opinion letter from their legal counsel by June 10.
The provisionally selected winning bids, which cover over 2,091 census blocks in 8 states for a total of $12,573,494.45 in support, were submitted by Northeast Rural Services, Inc. (Oklahoma), Skybeam, LLC (Illinois, Kansas, and Texas), First Step Internet, LLC (Idaho, Washington), Allamakee-Clayton Electric Cooperative, Inc. (Iowa), Consolidated Communications Networks, Inc. (North Dakota), and Delta Communications, LLC (Illinois).
The Bureau also announced that it has posted updated answers to Frequently Asked Questions (FAQs) regarding the rural broadband experiments on the Commission’s website. The FAQs are available at http://www.fcc.gov/encyclopedia/rural-broadband-experiments .
FCC Announces Tentative Agenda for June Open Meeting
On May 28, the FCC announced that the following items are tentatively on the agenda for the June Open Commission Meeting scheduled for Thursday, June 18, 2015:
- a Report and Order that will facilitate innovative technologies and services by establishing a process to authorize interconnected VoIP providers to obtain telephone numbers directly from the Numbering Administrators, rather than through intermediaries.
- a Second Further Notice of Proposed Rulemaking, Order on Reconsideration, Second Report and Order, and Memorandum Opinion and Order to comprehensively restructure and modernize the Lifeline program to efficiently and effectively connect low-income Americans to broadband, strengthen program oversight and administration, and take additional measures to eliminate waste, fraud, and abuse.
- a Declaratory Ruling and Order reaffirming the Telephone Consumer Protection Act's protections against unwanted robocalls, encouraging pro-consumer uses of robocall technology, and responding to a number of requests for clarity from businesses and other callers.
The Open Meeting is scheduled to commence at 10:30 a.m., and will be shown live at FCC.gov/live.
FCC Releases Revenue Thresholds for Carrier Categories
The Wireline Competition Bureau (WCB) announced the inflation-adjusted 2014 revenue thresholds used for classifying carrier categories for various accounting and reporting purposes. The revenue thresholds: (1) distinguish Class A carriers from Class B carriers; and (2) distinguish larger Class A carriers from mid-sized carriers. According to the WCB, the revenue threshold between Class A carriers and Class B carriers is increased to $152.5 million. The revenue threshold between larger Class A carriers and mid-sized carriers is increased to $9.03 billion.
Industry
AT&T to Drop Subsidized iPhone Contracts — Verizon Wireless May Follow Suit
Press reports state that Apple has announced to its employees that there will be significant changes in how iPhones on the AT&T and Verizon Wireless networks are sold and marketed in the United States. Currently, both AT&T and Verizon Wireless offer subsidized phones with a minimum 2 year commitment. For AT&T, this means that phones will only be available on the AT&T Next Plan — which requires the subscriber to pay full price for the phone in either 12, 18 or 24 monthly installments. There are also indications that Verizon Wireless will follow suit later this summer. In this regard, Verizon Wireless has already modified its Edge Up Plan so that customers will not be eligible for upgrades until after 24 months, once the phones are completely paid off — as opposed to 75 percent paid for. It is anticipated that these changes will also affect contracts for iPhones through third party retailers such as Best Buy, Wal-Mart and others.
While speculation is that both AT&T and Verizon Wireless will be able to improve their bottom lines by requiring customers to pay full price for their phones, the question remains whether consumers will want to pay upwards of $600.00 for a phone that previously cost $99.00 or $199.00 every two years. Further, given the recent market consolidations with the elimination of smaller, regional carriers, one can also wonder whether AT&T’s and Verizon Wireless’ efforts are triggered by a perceived lack of competition beyond Sprint and T-Mobile. Only time will tell whether AT&T’s and Verizon Wireless’ gamble will pay off, and whether the marketing policies will spread to other device manufacturers such as Samsung and HTC. If the majority of consumers determine that paying full price for a new phone every two years is unacceptable, the likely consequence will be that consumers will hold onto their devices until they are no longer serviceable. Not only could this have negative impact for the carriers, but it could also have negative consequences for the device manufacturers if demand for new devices falls substantially.
Deadlines
JULY 1: FCC FORM 481 (CARRIER ANNUAL REPORTING DATA COLLECTION FORM). All eligible telecommunications carriers (ETCs) must report the information required by Section 54.313, which includes outage, unfulfilled service request, and complaint data, broken out separately for voice and broadband services, information on the ETC’s holding company, operating companies, ETC affiliates and any branding in response to section 54.313(a)(8); its CAF-ICC certification, if applicable; its financial information, if a privately held rate-of-return carrier; and its satellite backhaul certification, if applicable. Form 481 must not only be filed with USAC, but also with the FCC and the relevant state commission and tribal authority, as appropriate. Although USAC treats the filing as confidential, filers must seek confidential treatment separately with the FCC and the relevant state commission and tribal authority if confidential treatment is desired.
JULY 1: MOBILITY FUND PHASE I ANNUAL REPORT. Winning bidders in Auction 901 that are authorized to receive Mobility Fund Phase I support are required to submit to the Commission an annual report each year on July 1 for the five years following authorization. Each annual report must be submitted to the Office of the Secretary of the Commission, clearly referencing WT Docket No. 10-208; the Universal Service Administrator; and the relevant state commissions, relevant authority in a U.S. Territory, or Tribal governments, as appropriate. The information and certifications required to be included in the annual report are described in Section 54.1009 of the Commission’s rules.
JULY 31: FCC FORM 507, UNIVERSAL SERVICE QUARTERLY LINE COUNT UPDATE. Line count updates are required to recalculate a carrier's per line universal service support, and is filed with the Universal Service Administrative Company (USAC). This information must be submitted on July 31 each year by all rate-of-return incumbent carriers, and on a quarterly basis if a competitive eligible telecommunications carrier (CETC) has initiated service in the rate-of-return incumbent carrier’s service area and reported line count data to USAC in the rate-of-return incumbent carrier’s service area, in order for the incumbent carrier to be eligible to receive Interstate Common Line Support (ICLS). This quarterly filing is due July 31 and covers lines served as of December 31, 2014. Incumbent carriers filing on a quarterly basis must also file on September 30 (for lines served as of March 31, 2015); December 30 (for lines served as of June 30, 2015), and March 31, 2016, for lines served as of September 30, 2015).
JULY 31: CARRIER IDENTIFICATION CODE (CIC) REPORTS. Carrier Identification Code (CIC) Reports must be filed by the last business day of July (this year, July 31). These reports are required of all carriers who have been assigned a CIC code by NANPA. Failure to file could result in an effort by NANPA to reclaim it, although according to the Guidelines this process is initiated with a letter from NANPA regarding the apparent non-use of the CIC code. The assignee can then respond with an explanation. (Guidelines Section 6.2). The CIC Reporting Requirement is included in the CIC Assignment Guidelines, produced by ATIS. According to section 1.4 of that document: At the direction of the NANPA, the access providers and the entities who are assigned CICs will be requested to provide access and usage information to the NANPA, on a semi-annual basis to ensure effective management of the CIC resource. (Holders of codes may respond to the request at their own election). Access provider and entity reports shall be submitted to NANPA no later than January 31 for the period ending December 31, and no later than July 31 for the period ending June 30. It is also referenced in the NANPA Technical Requirements Document, which states at 7.18.6: CIC holders shall provide a usage report to the NANPA per the industry CIC guidelines … The NAS shall be capable of accepting CIC usage reports per guideline requirements on January 31 for the period ending December 31 and no later than July 31 for the period ending June 30. These reports may also be mailed and accepted by the NANPA in paper form. Finally, according to the NANPA website, if no local exchange carrier reports access or usage for a given CIC, NANPA is obliged to reclaim it. The semi-annual utilization and access reporting mechanism is described at length in the guidelines.
AUGUST 1: FCC FORM 499-Q, TELECOMMUNICATIONS REPORTING WORKSHEET. All telecommunications common carriers that expect to contribute more than $10,000 to federal Universal Service Fund (USF) support mechanisms must file this quarterly form. The FCC has modified this form in light of its recent decision to establish interim measures for USF contribution assessments. The form contains revenue information from the prior quarter plus projections for the next quarter. Form 499-Q relates only to USF contributions. It does not relate to the cost recovery mechanisms for the Telecommunications Relay Service (TRS) Fund, the North American Numbering Plan Administration (NANPA), and the shared costs of local number portability (LNP), which are covered in the annual form (Form 499-A) that was due April 1.
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.
AUGUST 29: COPYRIGHT STATEMENT OF ACCOUNTS. The Copyright Statement of Accounts form plus royalty payment for the first half of calendar year 2014 is due to be filed August 29 at the Library of Congress’ Copyright Office by cable TV service providers.
Calendar At A Glance
June
Jun. 5 – Reply comments on Short Form Tariff Review Plans are due.
Jun. 5 – Comments are due on the 9-1-1 Non-Service Initialized Device NPRM
Jun. 10 – Comments are due by 5 p.m. Eastern on the Broadband Opportunity Council Notice and Request.
Jun. 16 – Tariffs filed on 15 days’ notice are due.
Jun. 22 – Comments are due on Eligible Services List for E-Rate 2016.
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.
Jun. 29 – Comments are due on the FCC’s Mobile Competition Report.
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. 6 – Reply comments are due on the 9-1-1 Non-Service Initialized Device NPRM.
Jul. 6 – Reply comments are due on Eligible Services List for E-Rate 2016.
Jul. 14 – Reply comments are due on the FCC’s Mobile Competition Report.
Jul. 20 – PRA comments are due on the Open Internet Order.
Jul. 27 – Comments are due on FirstNet Draft RFP.
Jul. 31 – FCC Form 507 (Universal Service Quarterly Line Count Update) is due.
Jul. 31 – Carrier Identification Code (CIC) Report is due.
August
Aug. 1 – FCC Form 502 due (North American Numbering Plan Utilization and Forecast Report).
Aug. 1 – FCC Form 499-Q (Quarterly Telecommunications Reporting Worksheet) is due.
Aug. 29 – Copyright Statement of Accounts is due.
| BloostonLaw Private Users Update |
Vol. 16, No. 5 |
May 2015 |
FCC Seeks Comment on Supplement to 900 MHz “Private Broadband” Rulemaking
On May 3, Enterprise Wireless Association and Pacific DataVision, Inc. supplemented their Petition for Rulemaking regarding the realignment of the 900 MHz band. Comments on the revised petition are due June 29, 2015 and Reply Comments are due July 14, 2015.
In November, 2014, the Petitioners proposed that the FCC reallocate the 900 MHz band in order to create a private enterprise broadband (“PEBB”) allocation that would be divided into a 3/3 MHz broadband segment (898-901/937-940 MHz) and a 2/2 MHz narrowband segment (896-898/935-937 MHz).
The Petitioners have now filed a supplement which includes draft proposed rules, including specific technical rules (such as emission mask, antenna height and power limits) for operation in the broadband segment. Perhaps most importantly, the proposed rules prescribe a relocation process that would be similar to that used in the 800 MHz rebanding process with Sprint. This would involve a required relocation of incumbent licensees to other spectrum or technologies, pursuant to a negotiation with the PEBB licensee regarding reimbursement of relocation costs. In crafting these proposed wording, EWA has indicated that the rules were based upon rebanding procedures used in other services for the realignment of spectrum bands so that incumbent rights can be balanced against the public policy goal “of using spectrum more efficiently with new technology”. Finally, the draft rules also propose to address the conditions under which the PEBB licensee can offer broadband arrangements to requesting entities, and the interference protection that the PEBB licensee must provide to systems operating in the 901-902/940-941 MHz band.
GE MDS Obtains Rule Waiver for ORBIT Radio System
GE MDS has obtained a rule waiver to allow the use of the D1D emission for equipment in GE’s ORBIT radio platform. This equipment is used as part of GE’s telemetry operations.
Rule Section 90.207 lists the different emissions and the associated types of operations that may be used under Part 90 of the FCC’s Rules. For telemetry operations, Rule Section 90.207(i) only allows use of the A1D, A2D, F1D or F2D emission. GE, which is an equipment manufacturer, states that it is developing a narrowband high-efficiency point-to-point and point-to-multipoint telemetry radio system that will use data rates which greatly exceed the 4800 bps/6.25 kHz bandwidth standard in the FCC’s current rules.
The FCC’s action granting the rule waiver will allow GE to obtain equipment certification for its new ORBIT radio platform for telemetry equipment that will use the D1D emission. In granting the rule waiver, the FCC concluded that the proposed ORBIT radio platform would “promote the efficient use of limited spectrum resources, and . . . improve the effectiveness of critical infrastructure operations that protect life, property and the environment.”
Once GE has obtained the necessary equipment authorizations and made equipment available, users will be able to file applications for new licenses. It is important to note that even though the FCC has granted GE’s waiver request to obtain the necessary equipment authorizations, it will still be necessary for applicants for radio licenses to request a waiver of the FCC’s rules in order to operate this equipment since the FCC has not elected to grant a blanket rule waiver at this time.
FCC’s Wireless Bureau Changes Name of Spectrum and Competition Policy Division — Focuses Functions
Roger Sherman, Chief of the FCC’s Wireless Telecommunications Bureau, recently changed the name of the Spectrum and Competition Policy Division to the “Competition and Infrastructure Policy Division” to more accurately reflect the Division’s increasing focus on tower and other infrastructure matters. In particular, the Division will be charged with developing and implementing “sound spectrum, competition and infrastructure policies that promote the rapid deployment of wireless communications services to consumers and encourages competition in the wireless communications marketplace.”
For private wireless licensees, the Competition and Infrastructure Policy Division will manage issues related to tower siting and obstruction marking and lighting of antenna towers under the FCC’s Rules, as well as addressing wireless matters affecting the National Environmental Policy Act (NEPA) and the National Historic Preservation Act.
States’ Opt Out Rights Pose Financial Hurdles for First-Net
FirstNet’s mission is daunting — the creation of a nation-wide, interoperable nationwide broadband public safety communications system in the 700 MHz band. At its Industry Day earlier this month, FirstNet outlined its high-level business model, including the components necessary to pay for the deployment and maintenance of the system. These components include (a) a payment of $7 billion from the US Treasury; (b) fees that FirstNet will charge to its users; (c) selling excess capacity on a commercial basis and (d) utilizing existing infrastructure to the extent practical.
Thanks to the unexpectedly high proceeds from the recently concluded AWS-3 auction, FirstNet has secured its $7 billion payment from the US Treasury. What is not known is how many of the individual states will elect to opt into the system being developed by FirstNet. If several States elect to opt out, FirstNet could find itself with a significant revenue short-fall, something that it will not be able to calculate until much later down the road. Based on news reports from the Industry Day Event, indications are that the total number of users could range from 4 million to 13 million — with the revenue difference being $2.5 billion per year based upon a $30.00 monthly service fee per user.
There are several unanswered questions: How will FirstNet define public safety? Will it be police, fire and EMS or something broader that includes some or all aspects of critical infrastructure? What type of communications will be handled on the FirstNet network? Will communications only be data or telemetry between devices, or will voice communications be supported as well? Answers to these sorts of questions will drive not only the design of the network, but also the potential usage and revenue draw for the network.
Relief from Robo Calls May Be In Sight
Yesterday, the Chairman of the FCC announced that he was circulating proposed rules that would “protect Americans from unwanted robocalls, text messages and telemarketing calls.” This action is the result of several petitions that sought clarification of the FCC’s enforcement procedures under the Telephone Consumer Protection Act (TCPA). The proposed rules are designed to strengthen consumer protections that were first enacted in 2003 with the Federal Trade Commission’s (FTC’s) Do Not Call Registry, by closing loopholes in order to prevent unwanted calls to wireline and wireless phones already registered in the Do Not Call Registry.
In proposing this action, the FCC notes that unwanted phone calls are the number one consumer complaint — amounting to over 215,000 in 2014 alone.
In order to accomplish this, the FCC is proposing the following initiatives: (a) allow consumers to say “Stop” by revoking a prior authorization for robo and other telemarketing calls, (b) allow carriers offer “robocall-blocking technologies” to consumers, since a carrier’s obligation to complete calls “is not a legal barrier to the consumers’ right to avail themselves to a call blocking technology”, (c) clarify in FCC rules that the reassignment of a phone number revokes any prior authorizations to accept robo calls; (d) clearly define an autodialer as “any technology with the capacity to dial random or sequential numbers” so that robocallers cannot “skirt” consumer consent requirements, (e) provide very limited exceptions for robocalls, e.g., public safety, fraud alerts, medication refills and (f) affirm that the consumer has the ultimate right to determine what calls he or she will or will not receive.
The FCC has taken its enforcement of the TCPA very seriously over the years. So far this year, the FCC has issued upwards of $450,000 in proposed fines and a $2.9 million fine last year.
Chairman Wheeler has circulated his proposed rulings to the other FCC commissioners for their consideration and these new rules are scheduled to be voted on at the Commission’s Open Meeting on June 18.
Bill Introduced in Alabama to Allow Municipalities to Provide Broadband Outside City Limits
On April 30, a bill was introduced in the Alabama Senate that would remove current restrictions and allow municipalities to construct telecommunications and cable systems, and to provide related services (including Internet) to households outside city limits.
Specifically, the bill would remove existing limitations that prevent municipal service providers from building net-works and furnishing services to individuals outside of the municipality and police jurisdiction, territorial jurisdiction, or any area in which the municipality currently furnishes any other utility.
The bill follows in the footsteps of the FCC’s recent Memorandum Order and Opinion granting petitions for preemption of similar restrictions in Chattanooga, Tennessee and Wilson, North Carolina, in which the FCC made clear it would not hesitate to preempt similar statutory provisions in factual situations where it finds those statutes function as barriers to broadband investment and competition.
Driving and Mobile Devices — a Recipe for Disaster?
This past weekend, an article on MotorTrend.com concerning the use of mobile devices while driving began: “It appears as though all the “don’t text and drive” campaigns may need some changes in the near future, because a study released by AT&T reveals drivers who use their phones while driving aren’t just texting. Some are taking selfies and checking into social media, while others are even engaging in video chats.”
The use of cell phones has been main stream since the mid-1990s as the devices became smaller and easier to use. Fortunately or unfortunately, over the past 10 years or so, the devices have become smarter — essentially becoming mini-computers that can keep you connected almost as well as an Internet connected desk-top computer. As a result, everyone has become much more dependent on and comfortable with mobile devices, such that these devices have become an extension of the individual user in all facets of life. While access to instant information and the ability to send messages at any time have their benefits, there are also social costs and unintended consequences. As Motor Trend has indicated, of the 2,067 people polled between the ages of 16 and 65 in the US who use their cell phones at least once per day, 70 percent use their smart phones while driving, 61 percent admitted to texting and 33 percent to either reading, sending or replying to e-mails. Motor Trend stated that the poll also indicated that 28 percent surfed the Internet while driving, while 27 percent used Facebook and 14 percent used both Twitter and Instagram.
One can conjecture that the use of smart phones has become an addiction for many — whether it be while driving a car or going out on a date with your significant other or spouse. Next time you pull up to a traffic light — look around you. Next time you are at a restaurant, look at the surrounding tables and see how many smart phones are out and in use. You might be surprised.
What is the solution? Some states now have laws banning the use of hand-held devices. That certainly is a start, but several years into the existence of such laws a lot of texting and surfing still goes on behind the wheel. But what about use of hands-free Bluetooth? And, what about self-control? Neither seems to be winning the day. Perhaps wireless carriers can help manage the problem through the use of high profile publicity campaigns against distracted driving, and encouraging the use of voice recognition technologies that allow the user to keep their eyes on the road. Significant strides are being made toward apps that allow you to listen to voicemails, texts and e-mails audibly.
OP ED: Our Take on Commissioner O’Rielly’s Concerns regarding Enforcement Penalties and Fines
In a recent Blog post, Commissioner Michael O’Rielly takes the Commission to task because it has no mechanism for ensuring that fines for rules violations are paid. In this regard, Commissioner O’Rielly asked the Enforcement Bureau to provide detailed information on the most recent Notices of Apparent Liability and Forfeiture Orders. However, the Enforcement Bureau advised Commissioner O’Rielly that it did not routinely track the collections of monetary forfeitures (fines). Commissioner O’Rielly concluded that without this collections information, the Commission is ill equipped to determine the effectiveness of its enforcement actions.
Depending upon your perspective, Commissioner O’Rielly may be on the right track in taking the position that the Commission’s staff should have some sort of a mechanism for tracking enforcement actions from cradle to grave — even after responsibility for the enforcement action has been transferred to the U.S. Treasury or the Department of Justice for collection. It seems counterintuitive, from an internal controls aspect, that the Commission would not have this process in place — especially in light of the Commission’s Redlight Rule, which permits the FCC to block action on a pending matter once the forfeiture matures to an unpaid debt, following the issuance of a final court order and the subsequent failure to pay.
Section 504 of the Communications Act provides a very clear process for the collection of FCC fines. In those circumstances where a fine pursuant to a Forfeiture Order or a subsequent Commission order on reconsideration is not paid, Section 504 allows the federal government to bring a civil suit in the United States district court where the person or carrier has its principal place of business or where the person or carrier operates. The federal government is not entitled to any presumption that the Commission’s conclusions were correct. Rather, the government will be required to prove its case anew since the case must be brought as a trial de novo — meaning that the parties will be entitled to relitigate the underlying facts and appropriateness of the fine. This is a critical safeguard in order to ensure that there is sufficient evidence of a violation and that an appropriate penalty is assessed for a violation that was not subject to the political whims of the Commission or Congress. |
David George and Bill Noyes
