Key Regulatory Dates

Form 499As Due April 1, 2014

  • Companies that provide telecommunications and Voice over Internet Protocol (VoIP) service are reminded that completed FCC Form 499-As are due today, April 1, 2014. These forms report annual revenue to the Universal Service Administrative Company (USAC) and the Federal Communications Commission (FCC), as well as other fund administrators. This form must be filed by all interstate telecommunications carriers, interconnected VoIP providers, providers of interstate telecommunications that offer service for a fee on a non-common carrier basis (including stand-alone audio bridging companies), and payphone providers that are aggregators. In addition, non-interconnected VoIP providers are now required to file this form for the assessment of fees to support the Telecommunications Relay System (TRS). The FCC recently released updated instructions for completing those filings. Notably, the instructions include updated guidance for the execution of reseller certificates for services provided to resellers that pay into the federal Universal Service Fund. Copies of the Public Notice outlining the changes from the 2013 FCC Form 499-A and 499-Q can be found here, and the new versions of the forms can be found here and here.

The revenues reported on Form 499-A provide the basis for true-up of a company’s Universal Service contributions and for assessing annual fees for the TRS, Local Number Portability (LNP) fund, the North American Numbering Plan Administration fund, and the FCC’s annual fee.

Companies may submit FCC Form 499-A electronically if they have registered with USAC. If a company submits its FCC Form 499-A to USAC in hard copy, it must contain an officer’s original signature.

Accessibility Certificates Also Due Today, April 1, 2014

  • Certificates regarding disabled persons’ access to services are due today, April 1, 2014.Telecommunications carriers, equipment manufacturers, Voice over Internet Protocol (VoIP) providers, including non-interconnected VoIP providers, wireless carriers, and advanced communications service providers are required to file a certificate with the FCC stating that they maintain records of any and all efforts undertaken to ensure their products and services are accessible to those with disabilities. Specifically, companies must maintain records of:
    • Their efforts to consult with individuals with disabilities;
    • Descriptions of the accessibility features of its products and services; and 
    • Information about the compatibility of these products and services with peripheral devices or other equipment typically used to gain access to the company’s services, such as hearing aids.  here. More information can be found in the Public Notice found here. (DA 14-354)

The certificate must identify both a contact within the company who is authorized to resolve complaints, as well as an agent to receive any informal complaints that may be received by the FCC regarding the company alleging violations of the Commission’s accessibility rules, or Sections 255, 716, and 718 of the Communications Act of 1934, as amended (the Act). These sections of the Act requires providers to ensure that their services and equipment are accessible by the disabled, including that any Internet browsers included on mobile telephones are accessible by those who are visually disabled (unless doing so is not achievable), and to maintain the records described above. In addition, the certificate must be supported by a declaration or affidavit signed under the penalty of perjury by an officer of the company who has personal knowledge of the company’s recordkeeping policies and procedures.

The FCC has established a filing portal for this certificate, which can be found here. More information can be found in the Public Notice found here. (DA 14-354)

16.6% Is Proposed 2Q2014 USF Contribution Factor

  • The proposed Universal Service contribution factor for the second quarter of 2014 is 16.6%. A copy of the Public Notice announcing the rate can be found here. (DA 14-377)

Key Industry Events

FCC Open Commission Meeting, April 23, 2014

  • The FCC’s next Open Commission Meeting is scheduled for April 23, 2014 at 10:30 am; for more information, click here.

MMA Forum, May 6–7, 2014

  • For more information on the Mobile Marketing Association’s Forum event in New York City, which Arent Fox partner Ross Buntrock will be attending, click here.

Arent Fox Partner Stephanie Joyce Discussed Inmate Phone Issues on The Kojo Nnamdi Show, March 4, 2014

  • To listen to the interview, click here.

News Roundup

Recent FTC Settlement Highlights Need for Companies and Founders to Exercise Caution When Using “Lead Generators”

  • The Federal Trade Commission (“FTC”) recently announced a settlement agreement with a home security company, Versatile Marketing Solutions (“VMS”), and its founder, which were accused of violating federal law by calling millions of consumers that were already part of the National Do Not Call registry. The settlement agreement imposed civil penalties of $3.4 million jointly on the company and founder, most of which were suspended because it was determined that paying those penalties would cause significant financial hardship. This recent FTC settlement is a cautionary reminder about the need to ensure compliance with statutes and regulations designed to protect consumers from unwanted calls and text messages. In this particular example, VMS purchased a list of phone numbers from a third-party “lead generator.” The lead generator claimed that the consumers on the list consented to receive calls from VMS to discuss the installation of a free home security system, when in fact the consumers had not given their consent. Moreover, the FTC found that VMS had acted improperly because it failed to confirm on its own that the numbers provided by the lead generator were not registered with the National Do Not Call Registry. The FTC alleged that VMS ignored “warning signs that the lead generators were engaged in illegal telemarketing practices.” According to an FTC spokesperson, the case highlights that “[c]ompanies that use lead generators must exercise due diligence when they buy lists of phone numbers, or else they can be on the hook...”

Federal Court Dismisses TCPA Suit Where Plaintiff Provided Her Mobile Number

  • On March 24, 2014, the United States District Court for the District of Minnesota granted Star Tribune Media Company’s (“Star”) motion for judgment on the pleadings on Telephone Consumer Protection Act (“TCPA”) claims filed against Star for calls made to Plaintiff about her newspaper service. Plaintiff had signed up for a one-year newspaper subscription through Star, and in doing so, had provided her wireless phone number on the subscription order form. The order form stated that the subscription would continue unless Plaintiff notified Star of a desire to cancel. After the initial one-year subscription had ended, Plaintiff received calls with pre-recorded messages that stated that the calls were for “service verification.” Plaintiff also received a call in which a Star representative informed Plaintiff that she had an outstanding balance. In rejecting the TCPA claims, the court held that Plaintiff had granted prior express consent to be called because she had provided her phone number during the process of subscribing to the newspaper and had not communicated to Star any limitation on her phone number’s use. The court also rejected Plaintiff’s argument that her one-year subscription and any subsequent renewal were separate transactions, as renewal was addressed in the original subscription agreement. Last, the court rejected Plaintiff’s argument that her consent was automatically revoked upon termination of the one-year subscription, noting that even if her subscription had terminated at the end of one year, this would not automatically revoke any prior express consent to be called. In so holding, the court noted that nothing in the relevant FCC orders supports the idea of automatic revocation. Steinhoff v. Star Tribune Media Co. LLC, No. 13–cv–1750 (SRN/JSM), 2014 WL 1207804 (D. Minn. Mar. 24, 2014).

FCC Seeks Comment on TCPA-Related Petition Seeking Clarity on Calling-Party Disclosure Rules

  • On February 28, 2014, the Consumer and Governmental Affairs Bureau of the Federal Communications Commission (FCC) released a public notice seeking comment on National Grid USA, Inc.’s petition for expedited declaratory ruling and/or waiver filed on February 18, 2014. National Grid is requesting that the FCC clarify that that a “doing business as” (d/b/a) name registered with the state corporation commission (or comparable regulatory authority) that is stated at the beginning of a prerecorded message satisfies the caller identification requirements for such calls pursuant to section 64.1200(b)(1) of the Commission’s rules. By way of background, section 64.1200(b)(1) requires that all artificial or prerecorded voice telephone messages shall “[a]t the beginning of the message, state clearly the identity of the business, individual, or other entity that is responsible for initiating the call. If a business is responsible for initiating the call, the name under which the entity is registered to conduct business with the State Corporation Commission (or comparable regulatory authority) must be stated.” National Grid asserts that the Commission has not ruled specifically on whether a d/b/a name that is also registered with a state corporation commission satisfies this requirement. National Grid argues that a d/b/a name that is registered with the appropriate regulatory authority allows called parties the same ability to search for and identify the caller as they would be able to do with a search for a “legal” or “official business” name. As result, National Grid contends that a registered d/b/a name satisfies the intent of the rule to ensure that callers are able to identify the calling party. Comments were due March 31, 2014, and reply comments are due April 15, 2014. A copy of National Grid’s petition can be found here.