Federal Communications Commission (FCC) Announcements#

  • The Final Agenda for the FCC Open Meeting on September 26, 2013, contains five items: the four items previously noticed, plus a Notice of Proposed Rulemaking (NPRM) on consumer choice in wireless service and the resilience of wireless networks. To read the full Final Agenda, click here.
  • The FCC's Consumer and Governmental Affairs Bureau will host a forum on October 1, 2013, to discuss cybersecurity and children’s online safety. The forum will be held from 10:00 am to 3:00 pm Eastern in the FCC Meeting Room. Space is limited; to register, send your name, organization and contact information to cybersecuritynextgen@fcc.gov. To learn more, click here

The Mobile Market

  • On August 27, 2013, the FCC’s Consumer and Governmental Affairs Bureau released a Public Notice seeking additional comment and to refresh the record regarding “cramming” on wireline and wireless phone bills. Cramming is how the agency describes the practice of placing unauthorized charges on phone bills. Comments are due 45 days after Federal Register publication of the Public Notice and Reply Comments are due 15 days after that. CG Docket Nos. 11-116 and 09-158; CC Docket No. 98-170. The Public Notice is here.
  • The FCC’s Public Safety and Homeland Security Bureau will host a public workshop on October 2, 2013, to discuss the use of wireless technology to contact emergency services. Among the topics to be discussed are the quality of 911 location information delivered to Public Safety Answering Points (PSAPs), including concerns raised in an ex parte filing by the California chapter of the National Emergency Number Association (CALNENA) about the percentage of wireless 911 calls in California being delivered without required location information. Details regarding the workshop participants, panels, and times will be announced by the Bureau in a further public notice. The Bureau will accept comments from interested parties in advance of the Workshop until September 25, 2013. The public notice is available here. PS Docket No. 07-114.
  • The FCC’s Wireless Telecommunications Bureau has established a pleading cycle the application of AT&T, Inc. for approval of its purchase of Leap Wireless International which includes the Cricket brand of prepaid consumer wireless services. Petitions to Deny are due September 27, 2013, and Oppositions to the Petitions are due October 7, 2013. Petitioners may file Replies by October 15, 2013. WT Docket 13-193. The Public Notice is available here. 

Federal Trade Commission (FTC) and Privacy Regulation

  • On September 13, 2013, the FTC announced that it has permanently shut down two illegal robocalling operations. The two companies, Treasure Your Success and Ambrosia Web Design, separately agreed to settle charges that they used prerecorded calls to trick consumers into deceptive credit card interest rate reduction scams. According to the FTC, the proposed settlements will ban the companies “from telemarketing and delivering robocalls. They also will be permanently prohibited from advertising, marketing, promoting, or offering for sale any debt relief product or service, or assisting others in doing so.” More information, including the proposed settlement agreements, is available here.
  • The FTC will hold a consumer privacy workshop on 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

  • A bill introduced in Congress on September 10, 2013, would make it easier for healthcare providers to treat Medicare patients in other states with telemedicine by permitting the healthcare provider to be licensed only in the state where they have their office. HR 3077, the TELEmedicine for MEDicare Act, was introduced by Reps. Devin Nunes, R-Cal., and Frank Pallone, D-NJ. The bill reflects the Service Members Telemedicine & E-Health Portability (STEP) Act which was enacted in 2011 to allow the Department of Defense to authorize healthcare professionals to treat veterans across state lines without the need for additional licenses, and an additional bill, HR 2001, the Veterans E-Health and Telemedicine Support (VETS) Act which would provide a similar exemption for Department of Veterans Affairs healthcare providers if adopted. The full text of HR 3077 is available here. 

Developments in Intercarrier Compensation

  • On September 17, 2013, Acting FCC Chairwoman Mignon Clyburn issued a statement that she has circulated a proposed Order and Further Notice of Proposed Rulemaking addressing problems associated with rural long-distance call completion. On February 7, 2013, the FCC issued a Notice of Proposed Rulemaking (NPRM) seeking comment on proposed rules related to rural call completion, stating that intermediate wholesale long-distance carriers may be failing to deliver a significant number of calls to rural areas, while retail long-distance carriers may not be adequately monitoring the rural call completion performance of these wholesale carriers.

The NPRM proposed rules requiring facilities-based originating long-distance carriers to collect and retain basic information on call attempts and to periodically undertake call completion analyses and report the results to the FCC. In addition, any originating long-distance carrier having more than 100,000 subscribers would be required to:

  • Measure the call answer rate for each rural operating company number (OCN) to which 100 or more calls are attempted per month;
  • Submit to the FCC monthly call completion data segregated by rural and non-rural OCNs on a quarterly basis; and
  • Retain records for the preceding six months concerning each long-distance call handled in a readily retrievable form.

According to FCC officials, the Order under circulation adopts most of these proposals, with one exception: carriers would not have to report call completion data for calls handled by no more than two other carriers. WC Docket No. 13-39.

Compliance Notes

  • The Universal Service Fund proposed contribution factor for the Fourth Quarter of 2013 is 15.6%. A copy of the Public Notice can be found here. (DA 13-1880) 

In the Courts

  • On September 13, 2013, a federal trial court in Illinois held that a suit alleging that Merck & Co. violated the Telephone Consumer Protection Act by sending a fax advertising a free webcast stated a claim and may proceed to discovery. Plaintiff North Suburban Chiropractic Clinic, Ltd. complained that Merck sent it an unsolicited fax that invited it to view “a medical education program for health care professionals only” relating to “health literacy” topics that did not “on their face involve[] products or services commercially available from defendant.” Merck moved to dismiss the case on the ground that its webinar was free, but the court applied an FCC finding that even faxes “that promote goods or services even at no cost … are unsolicited advertisements under the TCPA’s definition.” The court acknowledged that the FCC’s ruling could be avoided where “the complaint fails to allege that the seminar was a pretext to an advertisement,” but found that Plaintiff adequately alleged that Merck intended to use this free webinar to market its own goods or services. As such, the court ordered the parties to begin discovery. N. Suburban Chiropractic, Ltd. v. Merck & Co., No. 13 C 3113 (N.D. Ill. Sept. 13, 2013).

Legislative Outlook 

  • Senator John “Jay” Rockefeller IV, D-W.Wa., Chair of the Senate Commerce Committee, has released a statement on the nomination of Mike O’Rielly to the FCC. He began, however, by nothing that his Committee requires a budget extension by the end of this month when the previous, stopgap 7-month appropriations expire. With regard to O’Rielly, Sen. Rockefeller called him an “expert in communications areas” and asked him to pay particular attention to two FCC proceedings that concern him: Incentive Auctions and E-Rate. The Senator also reminded O’Rielly of “the FCC’s role in guaranteeing universal service, competition, consumer protection, and the other important values embedded in our communications law.” The full statement is available here.

Sen. John Thune, R-SD, Ranking Member, also released a statement. Notably, he indicated that the two FCC nominees, Tom Wheeler and O’Rielly, might not take their seats until mid-October. The full statement is available here.