Key Regulatory Dates

Section 254(g) Certifications Due May 1, 2014

  • Every non-dominant provider of detariffed interstate interexchange service must certify that it is in compliance with Section 254(g) of the Communications Act, which requires that its rates to subscribers in rural and other high cost areas are no higher than rates charged to subscribers in urban areas by May 1, 2014. This filing is made pursuant to Section 64.1900 of the Commission’s rules.

Form 499Qs Also Due May 1, 2014

  • Form 499-Q is due May 1, 2014 for all filers that are not considered de minimis for Universal Service filing purposes. This filing encompasses historical revenues from the first quarter of 2014 and projected revenues for the third quarter of 2014. 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 May 1, 2014 to the Universal Service Administrative Company (USAC) and the Chief, Industry Analysis and Technology Division of the FCC.

16.6% Is 2Q2014 USF Contribution Factor

  • The 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

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 is attending, click here.

ITW, May 11–14, 2014

  • For more information on the International Telecoms Week 2014 event in Chicago, click here.

FCC Open Commission Meeting, May 15, 2014

  • The FCC’s next Open Commission Meeting is scheduled for May 15, 2014 at 10:30 am; for more information, including the tentative agenda, which includes the much-anticipated open Internet Notice of Proposed Rulemaking, click here.

News Roundup

Federal Court Rules That TCPA Plaintiff Could Not Revoke His Consent to Be Called By Leaving a Message to That Effect As His Voicemail Message

  • On April 21, 2014, the U.S. District Court for the Eastern District of Wisconsin dismissed a complaint filed against Harris & Harris, Ltd. (“H&H”), a third party debt collector, for violations of the Telephone Consumer Protection Act (“TCPA”). In attempting to collect a debt owed by the plaintiff, H&H used an automated telephone dialing system that placed calls and left prerecorded voicemail messages. Using this autodialer, H&H called the plaintiff’s cell phone approximately 163 times. During this time, the plaintiff’s outgoing voicemail message stated that any consent he had given under the TCPA was revoked. H&H only discontinued its calls to the plaintiff once a live agent was able to reach him and he requested that H&H cease all further calls. The court easily dismissed the plaintiff’s argument that he had never consented to the calls, as he had provided his energy company with his cell phone number in connection with his energy account, and H&H was attempting to collect on that account on behalf of the energy company. The court then turned to the plaintiff’s contention that he had revoked consent through his outgoing voicemail message. The court held that the voicemail was not sufficient to revoke consent, noting that to hold otherwise would create an unworkable rule that would serve only to trap companies using autodialers. If the plaintiff were allowed to succeed on his argument, companies using autodialers would be subject to liability as soon as individuals started using a voicemail message that revoked consent, whether or not the companies had actually received any real notice of the revocation, undermining the very notion of consent under the TCPA. Andersen v. Harris & Harris, Ltd., 13-CV-867-JPS, 2014 WL 1600575 (E.D. Wis. Apr. 21, 2014).

FCC Seeks Comment on Three More TCPA-Related Petitions

  • On April 25, 2014, the Federal Communications Commission's Consumer and Governmental Affairs Bureau released a public notice seeking comment on three recently filed petitions related to the Telephone Consumer Protection Act (TCPA) and fax advertisements. The Bureau set a deadline for initial comments of May 9, 2014, while reply comments are due May 16, 2014. The three petitions, filed by Magna Check, Inc., Masimo Corp., and Best Buy Builders, Inc., seek a declaratory ruling and/or waiver concerning section 64.1200(a)(4)(iv) of the Commission’s rules, which requires fax advertisements sent to a consumer who provided prior express invitation or permission to receive such faxes to include an opt-out notice. The petitioners contend that the opt-out-notice requirement should not apply to fax advertisements sent with the prior express permission of the recipient because such faxes are “solicited” faxes. In the alternative, the petitioners request that the Commission provide retroactive waivers to the petitioners on the ground that strict compliance with section 64.1200(a)(4)(iv) would be “inequitable, unduly burdensome, and contrary to the public interest.” A copy of the Bureau’s public notice can be found here.

FCC Issues FNPRM on Spectrum-Sharing Techniques

  • The FCC has adopted a Further Notice of Proposed Rulemaking (FNPRM) aimed at using spectrum-sharing techniques to make more spectrum available for wireless broadband services. The spectrum would be available for consumer use, carrier-grade small-cell deployments, as well as wireless broadband services. The FCC sees this as an opportunity to test innovative spectrum-sharing techniques, which could later be extended to other spectrum bands. Access and operation, which would occur in the 3.5 GHz band, would be managed to avoid interference with existing users of the spectrum by a spectrum access system, which is described as a dynamic database that incorporates technical and functional requirements to manage access and operations on the spectrum. The FNPRM seeks comment on technical, auction, and allocation rules. Comments will be due 40 days after publication of the FNPRM in the Federal Register, and Reply Comments will be due 20 days later. Docket No. GN Docket No. 12-354. The FNPRM and comments from the Commissioners are available here.

Freeport-McMoRan Secures Waiver of FCC’s Antenna Height Limit

  • On April 24, 2014, Arent Fox client Freeport-McMoRan Chino Mines Company secured a waiver of the antenna height limit in Section 90.259(a)(4) of the Commission’s Rules for secondary telemetry operations in the 217-220 MHz band. Freeport-McMoRan sought authorization to operate a telemetry system at its mining operations in New Mexico to monitor meteorological stations to detect storms and lighting, and water pressure in tailings to detect failures in dams, in order to ensure personnel and public safety in and around Freeport-McMoRan’s mining area. Freeport-McMoRan overcame a petition to deny the application and waiver request from the geographic licensee for the frequencies requested by Freeport-McMoRan. The FCC’s Wireless Telecommunications Bureau held that that “Freeport-McMoRan has demonstrated that the underlying purpose of the HAAT limit would not be served by application to the instant case,” and concluded “that a waiver grant is in the public interest, because it will improve the safety and environmental impact of Freeport-McMoRan’s mining operations.”

Arent Fox Partner Ross Buntrock Quoted in E-Commerce Times Article on Microsoft’s Acquisition of Nokia

  • The article, in which Ross comments on various regulatory issues surrounding that transaction in China, the U.S., and Europe, is available here.

Ross Buntrock Also Quoted in Article Over a Twitter Account Used to Satirize Peoria Mayor Jim Ardis

  • The article is available here.