Washington Monitor
Volume XVIII, No. 2 February 2, 2010

RCA Files Comments on QWEST II

On January 28, RCA emphasized the importance of focusing on the appropriate principles to govern comprehensive Universal Service Reform in comments filed with the Federal Communications Commission (FCC) in response to the FCC’s Further Notice of Proposed Rulemaking addressing concerns raised by the U.S. Court of Appeals for the Tenth Circuit in its Qwest II decision. Specifically, RCA stressed the need for portability of support in reforming the fund for the future as well as targeting support to areas that need it most in both interim and long-term action.

To view RCA’s press release accompanying the filing, please click here.
To view RCA’s full comments, please click here.

Senate Subcommittee Hold Hearing on Broadband Programs Funded by the Stimulus

The Senate Committee on Appropriations Commerce, Justice, and Science Subcommittee held a hearing January 28 on the broadband technology opportunities program funded by the American Recovery and Reinvestment Act of 2009, popularly referred to as the stimulus.

The hearing, featuring testimony from the Honorable Gary Locke, Secretary of the U.S. Department of Commerce, and the Honorable Lawrence Strickling, Administrator of the National Telecommunications and Information Administration (NTIA), contained debate on both the appropriateness and the effectiveness of the spending. Senator Richard Shelby (R-AL) attacked the spending as wasteful and driving unnecessary debt, while Senator Barbara Mikulski (D-MD), Chairwoman of the Subcommittee, supported the development, stating that “Rural broadband is one of the most crucial programs” but emphasized that the spending must create jobs.

To view full information on the hearing and a recording of the session, please click here.

House Subcommittee Reports Two Spectrum Bills

On January 21, the House Energy and Commerce Subcommittee on Communications, Technology and the Internet favorably reported two bills involving spectrum. H.R. 3125 would require an inventory of radio spectrum bands, and H.R. 3019 would improve the process used for reallocation of spectrum from Federal government uses to commercial uses.

Both bills were unanimously sent to the full committee by voice vote; H.R. 3019 was reported as introduced and H.R. 3125 was agreed to by a voice vote after the incorporation of an amendment in the nature of a substitute. Changes in this amended version of H.R. 3125 include:
·   Providing one year instead of six months to inventory the spectrum;
·   Providing the FCC and NTIA the discretion to extend the inventory up to and including 10 GHz;
·   Including characteristics and uses of spectrum being inventoried;
·   Providing for the agencies to not only report on what spectrum, if any, should be reallocated, but also opportunities for potentially sharing spectrum; and,
·   Changing the security language to allow the secretary of an agency with oversight to permit spectrum uses to remain classified.

RCA praised Chairman Rick Boucher (D-VA) and the Subcommittee for moving forward with this legislation.

To view RCA’s press release following the markup, please click here.
To view full information on the markup and a recording of the session, please click here.

FCC Seeks Information from Nations Four Largest Wireless Carriers and Google Regarding Application of Early Termination Fees

On January 26, the FCC sent letters to Verizon Wireless, AT&T Mobility, Sprint Nextel, T-Mobile and Google seeking information regarding the implementation and application of their early termination fees (ETFs). While acknowledging that each of the carriers may have various rationales for their ETFs, the FCC states:

These fees are substantial (and in some cases are increasing) and have an important impact on consumers’ ability to switch carriers. We therefore believe it is essential that consumers fully understand what they are signing up for—both in the short term and over the life of the contract—when they accept a service plan with an early termination fee.

Some of the more notable questions asked by the FCC include:

· What is the amount of the ETF for each service plan where ETFs apply? If there are different ETFs for different plans, what is the rationale for those differences?

· Does the ETF itself vary by device (e.g., higher ETFs for advanced devices)? If higher ETFs apply to a certain class of devices, exactly how is that class defined?

· Is it possible for consumers to buy a handset from you at full price to avoid an ETF? If this is possible, can consumers buy unsubsidized handsets online, as well as at brick-and-mortar stores?

· Are ETFs prorated so that the customer’s liability decreases over time? If so, what is the exact schedule by which they are prorated?

· What is the rationale for your ETF(s), and how specifically do the structure and level of those ETF(s) relate to that rationale?

Of particular note is the letter sent to Google because it is not the only letter recipient that is not a wireless carrier. The Commission’s decision to send a letter to Google stems from Google’s decision to implement an “Equipment Recovery Fee” in connection with its offering of the Nexus One to customers who agree to a two-year contract with T-Mobile.

Consumers who purchase Google’s Nexus One phone and choose to cancel service with T-Mobile are obligated to pay two ETFs – one to Google and one to T-Mobile. The Commission notes in its letter to Google that the “combination of ETFs from Google and T-Mobile for the Nexus One is also unique among the four major national carriers” and that “[c]onsumers have been surprised by this policy and by its financial impact.” Accordingly, the FCC asks Google and T-Mobile about their rationale for these combined fees, and whether the companies have coordinated or will coordinate on these fees and on the disclosure of their combined effect.

The FCC requests responses from each of the companies by February 23, 2010.

Commissioner Clyburn Explains Positions on Universal Service Reform

In a January 25th speech at the Organization for the Promotion and Advancement of Small Telecommunication Companies (“OPASTCO”), FCC Commissioner Mignon Clyburn provided attendees with her current positions on the actions necessary to reform the Universal Service Fund (USF).

In her speech, Commissioner Clyburn stated that the USF must be recalibrated to support both voice and broadband services, particularly in high-cost rural areas of the country where the prospects for broadband deployment would otherwise be bleak. Commission Clyburn also noted her belief that broadband must be available in rural areas at comparable rates to urban and suburban areas.

With these goals in mind, Commissioner Clyburn made the following reform recommendations:

· The establishment of a Broadband Fund to support the availability and affordability of high-speed Internet. The Commissioner’s proposed approach would require all broadband service providers to contribute to the Broadband Fund. Those providers serving high-cost areas would have access to the funds in order to deploy and offer affordable broadband service.

· The possibility of allowing only one provider to be chosen to receive the funds in high-cost areas.

· Establishing a competitively-based and technology-neutral approach for choosing providers eligible for support from the Broadband Fund.

· Obligating designated broadband providers to offer broadband services to all consumers in the area, within a reasonable timeframe, and at a reasonable rate.

· Encouraging companies currently receiving support from the legacy high-cost
programs in the USF to transition to the Broadband Fund, but establishing a specific timeframe for the transition’s completion so that once a provider is receiving support from the Broadband Fund, its support from the legacy high-cost programs would cease.

· Offering low-income consumers an opportunity to connect to broadband through the Lifeline program.

· Reforming intercarrier compensation, including the harmonization of interstate and intrastate interconnection rates that are just and reasonable and reflect the actual costs to use the networks.

FCC Proposes Revisions to Its Telemarketing “Robocalls” Rules

On January 22, the FCC released a Notice of Proposed Rulemaking (NPRM) requesting comments on proposed revisions to its rules under the Telephone Consumer Protection Act of 1991 (TCPA) to provide stricter standards to help residential telephone subscribers avoid unwanted telephone solicitations. One of the objectives of the proposed revisions is to harmonize the FCC’s rules on pre-recorded telemarketing calls with the more restrictive standards of the Federal Trade Commission’s (FTC) recently amended Telemarketing Sales Rule.

While the majority of entities that use prerecorded telemarketing calls are subject to both agencies’ telemarketing regulations, most regulated entities must comply with the FTC’s current, more restrictive standards. However, entities outside the FTC’s jurisdiction, such as telephone companies, airlines, banks, and insurance companies, are currently subject to less restrictive standards.

Under the proposed revisions, sellers and telemarketers would be required to obtain written consent from recipients before making pre-recorded telemarketing calls (“Robocalls”), even when the caller has an established business relationship with the consumer. The revisions also make it easier for consumers to opt out of receiving robocalls.

The proposed revisions would require that prerecorded telemarketing calls include an automated, interactive mechanism by which a consumer may “opt out” of receiving future prerecorded messages from a seller or telemarketer. In addition, the proposed revisions would adopt a “per campaign” standard for measuring the maximum percentage of live telemarketing sales calls that a telemarketer lawfully may drop or “abandon” as a result of the use of automated dialing software or other automated dialing equipment.

The proposed rule changes would not affect categories of prerecorded message calls that are not currently covered by its TCPA rules. These include:
·   Calls by or on behalf of tax-exempt non-profit organizations;
·   Calls for political purposes, such as those made by politicians or political campaigns;
·   Calls for other noncommercial purposes;
·   Commercial calls that do not contain unsolicited advertisements, for example, calls that deliver purely “informational” messages notifying recipients of a flight cancellation; and
·   Messages sent to consumers to alert them to emergency situations.

Comments are due 60 days and reply comments 90 days after publication of the NPRM in the Federal Register.

See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Notice of Proposed Rulemaking, CG Docket No. 02-278, FCC 10-18 (rel., Jan. 22, 2010).

FCC Denies Stay Request for Rules on State and Local Action on Tower Siting Applications

On January 29, the FCC released an Order denying a motion for emergency stay of rules adopted in November 2009 to accelerate the deployment of wireless networks by requiring state and local authorities to act on cell tower siting applications in 150 days and co-location applications in 90 days. The rules also established a 30-day review period for local authorities to determine the completeness of a wireless facilities siting request.

The FCC found no compelling reasons for granting the stay, which requires the petitioners to demonstrate that:
·   (1) It is likely to prevail on the merits;
·   (2) It will suffer irreparable harm in the absence of a stay;
·   (3) Other interested parties will not be harmed if the stay is granted; and
·   (4) The public interest would favor a grant of the stay.

The FCC noted that even assuming the petitioners could demonstrate a likelihood of success on the merits of their petition, they still would not be entitled to a stay because they have not established any of the other three factors that would warrant a stay.

On December 23, 2009, the FCC released a Public Notice requesting comments on a December 17, 2009 petition for reconsideration or clarification of the rules in question. The petition was submitted by the National Association of Telecommunications Officers and Advisors (NATOA), the United States Conference of Mayors, the National League of Cities, the National Association of Counties, and the American Planning Association.

In addition to the petition for reconsideration, the parties filed on the same date an emergency motion for stay of the FCC’s action or, in the alternative, of the portion of that action that defines the ability of State and local governments to toll the timeframes during the first 30 days after receipt of an incomplete application. In the January 29, 2010 Order, the FCC denied this stay request. The separate petition for reconsideration remains under FCC review.

See In the Matter of Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review and to Preempt Under Section 253 State and Local Ordinances that Classify All Wireless Siting Proposals as Requiring a Variance Emergency Motion for Stay of the National Association of Telecommunications Officers and Advisors, the United States Conference of Mayors, the National League of Cities, the National Association of Counties, and the American Planning Association, Order, WT Docket No. 08-165, DA 10-212 (rel., Jan. 29, 2010).

FCC Proposes National Testing of the Emergency Alert System

On January 14, the FCC released a Second Further Notice of Proposed Rulemaking requesting comments on a proposed amendment to its Part 11 rules to provide for annual national testing of the Emergency Alert System (EAS) and the collection of data from such tests. EAS is the primary national warning system that provides the President with the means to address the nation during a national crisis. It is also used by state and local officials to issue warning messages about imminent or ongoing hazards in specific regions.

To date, neither EAS nor its predecessor national alerting systems have been used to deliver a national Presidential alert. The FCC, the Federal Emergency Management Agency (FEMA) and the National Weather Service (NWS) are responsible for EAS, and have begun planning for a national EAS test. The FCC is therefore proposing to amend its rules to specifically provide for such testing and data collection.

Comments are requested by March 1 and reply comments by March 30, 2010.

See In the Matter of Review of the Emergency Alert System, Second Further Notice of Proposed Rulemaking, EB Docket No. 04-296, DA 10-11 (rel., Jan. 14, 2010).

UPCOMING REGULATORY DEADLINES

February 5, 2010 – Comments due on three petitions for rulemaking and two petitions for declaratory ruling on the proper use of signal boosters on frequencies listed under the following FCC rules. See FCC Releases Public Notice Seeking Comment on Multiple Petitions Regarding the Use of Wireless Signal Boosters & Other Signal Amplification Techniques, Public Notice, WT Docket No. 10-4, DA 10-14 (rel., Jan. 6, 2010).
February 8, 2010 – Comments due on Petition for Reconsideration or Clarification of the FCC’s adoption of a 30-day review period for local authorities to determine the completeness of a wireless facilities siting request in its Nov. 18, 2009 Declaratory Ruling on Tower Siting. See Wireless Telecommunications Bureau Seeks Comment on Petition for Reconsideration or Clarification of the Commission’s Declaratory Ruling Clarifying Provisions in Section 332(c)(7) of the Communications Act, WT Docket No. 08-165, DA 09-2629 (rel., Dec. 23, 2009).
February 12, 2010 – Reply comments on Further Notice of Proposed Rulemaking involving Qwest International, Inc. v. FCC in which the 10th Circuit remanded the FCC’s rules for providing high-cost universal service support to non-rural carriers. See High-Cost Universal Service Support; Federal-State Joint Board on Universal Service, Further Notice of Proposed Rulemaking, WC Docket No. 05-337, CC Docket No. 96-45 (rel., Dec. 15, 2009).
February 16, 2010 – Reply comments due on Petition of Cellco Partnership d/b/a Verizon Wireless for Pro Forma Amendment of ETC Designations in Alabama, North Carolina and Virginia. See Public Notice WC Docket No. 09-197, DA 09-2638 (rel., Dec. 30, 2009).
February 17, 2010 – Reply comments due on FCC Public Notice regarding an appropriate analytical framework for examining the various issues raised in the FCC’s January 2005 “Special Access” Notice of Proposed Rulemaking which launched a review of rules for setting the rates charged for interstate special access services by ILECs subject to price cap regulation. See Parties Asked to Comment on Analytical Framework Necessary to Resolve Issues in the Special Access NPRM, FCC Public Notice, WC Docket Nos. 05-25, RM-10593, DA 09-2388 (rel., Nov. 5, 2009); see also 74 Fed. Reg. 63702.
February 22, 2010 – Reply comments due on three petitions for rulemaking and two petitions for declaratory ruling on the proper use of signal boosters on frequencies listed under the following FCC rules. See FCC Releases Public Notice Seeking Comment on Multiple Petitions Regarding the Use of Wireless Signal Boosters & Other Signal Amplification Techniques, Public Notice, WT Docket No. 10-4, DA 10-14 (rel., Jan. 6, 2010).
February 22, 2010 – Comments due on the long-term status of microphones and other low power auxiliary stations. See Revisions to Rules Authorizing the Operation of Low Power Auxiliary Stations in the 698-806 MHz Band, Public Interest Spectrum Coalition, Petition for Rulemaking Regarding Low Power Auxiliary Stations, Including Wireless Microphones, and the Digital Television Transition, Amendment of Parts 15, 74 and 90 of the Commission’s Rules Regarding Low Power Auxiliary Stations, Including Wireless Microphones, Report and Order and Further Notice of Proposed Rulemaking, WT Docket No. 08-166, WT Docket No. 08-167, ET Docket No. 10-24, FCC 10-16 (rel. Jan. 15, 2010).
March 1, 2010 — Comments due on FCC’s Second Notice of Proposed Rulemaking proposing to amend the FCC’s Part 11 rules governing the Emergency Alert System (EAS) to provide for national testing of the EAS and collection of data from such tests. See In the Matter of Review of the Emergency Alert System, Second Further Notice of Proposed Rulemaking, EB Docket No. 04-296, DA 10-11 (rel., Jan. 14, 2010).
March 5, 2010 – Reply comments due on FCC “Net Neutrality” Notice of Proposed Rulemaking proposing six enforceable “net neutrality regulations applicable to providers of broadband Internet access services. See Preserving the Open Internet; Broadband Industry Practices, Notice of Proposed Rulemaking, GN Docket No. 09-191, WC Docket No. 07-52, FCC 09-93 (rel., Oct. 22, 2009).
March 15, 2010 — Reply comments due on the long-term status of microphones and other low power auxiliary stations. See Revisions to Rules Authorizing the Operation of Low Power Auxiliary Stations in the 698-806 MHz Band, Public Interest Spectrum Coalition, Petition for Rulemaking Regarding Low Power Auxiliary Stations, Including Wireless Microphones, and the Digital Television Transition, Amendment of Parts 15, 74 and 90 of the Commission’s Rules Regarding Low Power Auxiliary Stations, Including Wireless Microphones, Report and Order and Further Notice of Proposed Rulemaking, WT Docket No. 08-166, WT Docket No. 08-167, ET Docket No. 10-24, FCC 10-16 (rel. Jan. 15, 2010).
March 30, 2010 – Reply comments due on FCC’s Second Notice of Proposed Rulemaking proposing to amend the FCC’s Part 11 rules governing the Emergency Alert System (EAS) to provide for national testing of the EAS and collection of data from such tests. See In the Matter of Review of the Emergency Alert System, Second Further Notice of Proposed Rulemaking, EB Docket No. 04-296, DA 10-11 (rel., Jan. 14, 2010).
TBD – Comments and reply comment deadline on FCC’s proposed revisions to its telemarketing “Robocall” rules. See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Notice of Proposed Rulemaking, CG Docket No. 02-278, FCC 10-18 (rel., Jan. 22, 2010).

The Washington Monitor is published by the Rural Cellular Association (RCA). The Washington Monitor is not intended to provide legal or business advice and may, despite good intentions, contain errors and omissions.

Disclaimer: RCA members should determine the applicability of all Federal Communications Commission rules and policies, as well as other information contained herein, to their own operations and consult their own counsel as may be appropriate. RCA assumes no responsibility for errors or omissions in The Washington Monitor.

Washington MonitorVolume XVIII, No. 2 February 2, 2010