Federal Communications Commission (FCC) Announcements

  • The next meeting of the Consumer Advisory Committee will be August 2, 2013, 9:00 am to 4:00 pm Eastern at FCC Headquarters. Expected topics include access for persons with disabilities and the impact of emerging technologies on consumers. More information is available here.
  • The Tentative Agenda for the next FCC Open Meeting to be held August 9, 2013, at 10:30 am Eastern, lists three items: a Report and Order on technical requirements applicable to unlicensed services in the 57-64 GHz band; a Report and Order to streamline satellite rules; and a report on the progress of the incentive auction slated to be held in 2014. To read the Tentative Agenda, click here.

The Mobile Market

  • The FCC has launched a proceeding aimed at making additional spectrum available for advanced wireless services as required by the Middle Class Tax Relief and Job Creation Act of 2012. On July 23, 2013, it released a Notice of Proposed Rulemaking seeking input on proposals to allow commercial use of spectrum in the 1695-1710 MHz, 1755-1780 MHz, 2020-2025 MHz, and 2155-2180 MHz bands. The Commission’s “goal remains to clear and allocate spectrum in these bands for exclusive commercial use to the maximum extent feasible,” and it will explore “novel approaches to spectrum sharing between commercial and Federal operators.” Comments are due September 19, 2013, and Reply Comments are due October 16, 2013. The full NPRM is available here. GN Docket No. 13-85.
  • Reply Comments on the FCC Notice of Proposed Rulemaking regarding contraband cellphones are due August 2, 2013. In the NPRM, the FCC states that “[p]risoners’ use of contraband wireless devices to engage in criminal activity is a serious threat to the safety of prison employees, other prisoners, and the general public.” The proposed rules would make it easier for correctional facilities to enter into leases or spectrum management agreements, allowing them to control which wireless devices were able to access the network. In addition, the proposed rules would “require wireless providers to terminate service, if technically feasible, to a contraband wireless device if an authorized correctional facility official notifies the wireless provider of the presence of the contraband wireless device”. The Commission also invites comment on “other technological approaches for addressing the problem of contraband wireless device usage in correctional facilities.” The NPRM is available here. GN Docket No. 13-111; ET Docket No. 08-73; WT Docket No. 10-4.

Federal Trade Commission (FTC) and Privacy Regulation

  • On July 25, 2013, the National Telecommunications and Information Administration (NTIA) announced that participants in its year-long, multi-stakeholder process to address mobile privacy and data collection issues has resulted in a draft voluntary code of conduct, though some parties abstained. The new code of conduct is intended to establish greater transparency in the types of information that applications collect and how that information is used. The code would require app developers to display information about their data use and collection practices in a consistent way by providing “short notices” that will help consumers compare and contrast the different apps. The FTC is expected to have enforcement authority over any entity that adopts the code of conduct. Because compliance is voluntary, however, questions remain as to how app developers and others in the industry will implement or abide by it. The FTC, for its part, has stated that it would look favorably in enforcement actions on a business that can show compliance with a strong code of conduct. NTIA Administrator Lawrence Strickling is calling the result a “seminal milestone in the efforts to enhance consumer privacy on mobile devices.” The NTIA’s press release regarding the voluntary code of conduct is available here.
  • EXTENSION GRANTED: Comments on proposed changes to the FTC’s Telemarketing Sales Rule (TSR) are now due August 8, 2013. The FTC seeks to curtail the use of a number of payment methods favored by unscrupulous entities, including (i) “stop[ping] telemarketers from dipping directly into consumer bank accounts by using unsigned checks and ‘payment orders’ that have been ‘remotely created’” and (ii) “bar[ring] telemarketers from getting paid with traditional ‘cash-to-cash’ money transfers, as well as ‘cash reload’ mechanisms.” The news release about the extension is available here.
  • DATE CHANGE: The FTC has changed the date of its consumer privacy workshop to November 19, 2013, in Washington, DC to address the consumer privacy and security issues raised by the growing connectivity of consumer devices such as smart phones, cars, appliances, and medical devices, also commonly referred to as “The Internet of Things”. More information regarding the “Internet of Things” workshop and comments is available here.

New Markets: Smart Grid and E-Health

  • The Centers for Medicare & Medicaid Services have introduced two free mobile device applications to help physicians and health care users track payments that are now required to be reported under the OPEN PAYMENTS program (Physician Payments Sunshine Act). Created by a provision of the Affordable Care Act, OPEN PAYMENTS creates greater public transparency about financial transactions between doctors, teaching hospitals, drug and device manufacturers, and other health care businesses. The apps can facilitate accurate reporting of required information which will be available to the public and will be published annually on the OPEN PAYMENTS website. More information is available here.

Developments in Intercarrier Compensation 

  • On July 24, 2013, the Texas Public Utility Commission (TPUC) issued a public notice directing certificated carriers to submit data on their intrastate switched access rates. Pursuant to Texas law, the TPUC is required to recalculate the weighted average of statewide usage-sensitive switched access rates across all carriers in the state. As a result, the TPUC directed carriers to submit data on the following rate elements from their current intrastate tariffs: originating and terminating common carrier line (CCL); originating and terminating local switching (LS); originating and terminating transport (TR); originating and terminating tandem switching (TS); and average per minute rate for originating and terminating tandem switch transport (TST).

Carriers must also submit the total originating and terminating minutes of use for the most recent 12-month period (August 1 through July 31) for each of the rate elements listed above. Finally, carriers must submit data on the total revenues earned for each of these rate elements for this same period. The TPUC ordered all carriers to file this data by no later than 3:00 pm Central on September 15, 2013. Docket No. 41632.

Compliance Notes

  • Providers of international common carrier services are required to file their International Traffic Data report for 2012 by July 31, 2013, as required by Section 43.61 of the Commission’s Rules. There is a change in filing protocols for resellers of telecommunications services, providers of miscellaneous telecommunications services, and providers with less than $5 million in international revenue. These providers may report their information via transmittal letter, as outlined in Public Notice issued by the FCC, found here.

All other carriers are required to file complete reports pursuant to the current filing manual which can be found here. A copy of the billing codes for switched services settlement arrangements can be found here. (DA-13-1436)

  • Carriers, including incumbent carriers, competitive local exchange carriers and resellers that obtain telephone numbers from the North American Numbering Plan Administrator (NANPA), a Pooling Administrator, or another carrier are required to file FCC Form 502 Numbering Resource Utilization/Forecast (NURF) by August 1, 2013. Paging companies, shared tenant providers, wireless carriers, and satellite service providers are also required to file the NURF. Toll-free numbers are exempt from this filing. The filing can be made electronically here. 
  • Form 499-Q is due August 1, 2013, for all filers that are not considered de minimis for Universal Service filing purposes. This filing encompasses historical revenues from the second quarter of 2013 and projected revenues for the fourth quarter of 2013. A copy of the current FCC Form 499-Q can be found here.

Voice over Internet Protocol (VoIP) providers and Commercial Mobile Radio Service (CMRS) providers who rely on traffic studies to report interstate revenues on FCC Form 499-Q must submit these studies by August 1, 2013, to the Universal Service Administrative Company (USAC) and the Chief, Industry Analysis and Technology Division of the FCC.

  • The FCC is seeking comment on revisions to Forms 470 and 471 which are used by applicants seeking support for funding of projects under the Schools and Libraries Universal Service Funding Mechanism, more commonly known as the E-Rate Program. Form 470 is used to open the competitive bidding process, and Form 471 is filed by the E-Rate applicant to identify the services for which it is seeking reimbursement. The proposed changes to the forms include inquiries about broadband connectivity, and the number, type and speed of current broadband connections. Comments are due August 16, 2013, with reply comments due August 30, 2013. (CC Docket No. 02-6, DA 13-1590)

A copy of the Public Notice can be found here.

A copy of the proposed Form 470 can be found here, while the proposed Form 470 instructions can be found here.

A copy of the proposed Form 471 can be found here, and the proposed Form 471 instructions can be found here.

  • The Wireline Competition Bureau is seeking comments on changes to FCC Forms 479, 486, and 500, all of which are used in administration of the Schools and Libraries Universal Service Support Program, commonly known as the E-Rate Program. FCC Forms 479 and 486 are used by participants in the program to certify compliance with the Children’s Internet Protection Act (CIPA) when applying for discounts on Internet access, internal connections, and basic maintenance of internal connections. Participants also use FCC Form 486 to notify the Universal Service Administrative Company (USAC) of when the participant first receives service. FCC Form 500 is used to make adjustment to previously filed forms. Comments are due August 14, 2013, with Reply Comments due August 28, 2013.

The Public Notice can be found here.

The proposed revised Form 479 can be found here, with the proposed revised instructions here.

The proposed revised Form 486 can be found here, with the proposed revised Form 486 Instructions here.

The proposed revised Form 500 can be found here, with the proposed revised Form 500 Instructions here.

  • The FCC has proposed a Universal Service Fund contribution factor of 15.1% for the third Quarter of 2013. A copy of the Public Notice announcing the rate can be found here. (DA 13-1361)

Broadband News

  • The FCC will auction the H Block, 1915-1920 MHz and 1995-2000 MHz, “by or as early as January 14, 2014.” The Spectrum Act requires that the auction occur by February 23, 2015. Comments on the competitive bidding procedures are due August 5, 2013, and Reply Comments are due August 16, 2013. The request for comment is available here.

In the Courts 

  • On July 24, 2013, the U.S. Court of Appeals for the Ninth Circuit affirmed a trial court’s denial of the motion of Fox Broadcasting to enjoin Dish Network from offering its ad-skipping digital video recording service called Hopper. The court held that the flaw in Fox’s theory was that the consumer decides how and when to use Hopper, not Dish. “Operating a system used to make copies at the user’s command does not mean that the system operator, rather than the user, caused copies to be made,” the court observed. “Here, Dish’s program creates the copy only in response to the user’s command.” And because it was the consumer making the copy, the court held that their copies are protected fair use, such that Dish could not be held secondarily liable. Finally, the court was unpersuaded by Fox’s argument that the Hopper will undermine television’s advertising-supported business model: “If recording an entire copyrighted program is a fair use, the fact that viewers do not watch the ads not copyrighted by Fox cannot transform the recording into a copyright violation.” Fox Broadcasting Co. v. Dish Network LLC, No. 12-57048 (9th Cir.).

Legislative Outlook

  • The House Communications Subcommittee approved the FCC Process Reform Act and the FCC Consolidated Reporting Act by voice vote on July 24, 2013. The Subcommittee’s press release on the vote, which includes links to the two bills, is available here.
  • The Senate Antitrust Subcommittee will hold a hearing titled “Standard Essential Patent Disputes and Antitrust Law” tomorrow, July 30, 2013, at 10:00 am Eastern in 226 Dirksen. For more information, click here.