Federal Communications Commission (FCC) Announcements

  • The FCC’s Incentive Auction Task Force will hold a webinar on August 22, 2013, from 1:00 pm to 3:00 pm Eastern, to explain how the Commission will “repack” television spectrum after the forward auction. Viewers will be able to submit questions during the webinar. For more information, including how to obtain the login data, click here.
  • he next two FCC Open Meetings are scheduled for September 26 and October 22, 2013. 

The Mobile Market

  • The FCC’s Wireline Telecommunications and Wireline Competition Bureaus last week jointly announced procedures that will apply to the reverse auction that will award as much as $50 million in “to carriers that commit to provide 3G or better mobile voice and broadband services to Tribal lands that lack such services.” Winning bidders must choose whether to deploy 3G service within two years or 4G service within three years after the award, and will be required to provide coverage to 75% or more of the population associated with the eligible blocks in each bidding area. The auction will be conducted as a single-round, sealed-bid auction and will allow for bidding on predefined bidding areas consisting of eligible census blocks aggregated by Tribal lands and census tracts. The Bureaus also announced that the auction date will be moved from the original date of October 24, 2013, to December 19, 2013. The Public Notice describing the auction is available here. AU Docket No. 13-53.
  • EXTENSION GRANTED: The FCC has granted the motion of the American Correctional Association for an extension in the contraband cellphone proceeding. Reply Comments are now due August 23, 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. The Order granting the extension is available here. GN Docket No. 13-111; ET Docket No. 08-73; WT Docket No. 10-4.
  • The FCC has announced the pleading cycle on CTIA’s petition for reconsideration or, in the alternative, clarification regarding the new rule requiring wireless carriers to provide bounce-back notices when a consumer sends a text to “911” in an area where the public service answering point does not yet have that technology. Oppositions to the Petition are due August 15, 2013, and Replies are due August 26, 2013. The Public Notice is available here. PS Docket Nos. 11-153 and 10-255.
  • 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. 

Federal Trade Commission (FTC) and Privacy Regulation

  • The FTC has announced a settlement agreement with a telemarketer that it alleged had violated federal law by making false claims, causing unauthorized debits from consumers’ bank accounts, and illegally charging advance fees without the consumer’s consent. According to the FTC, the telemarketer also “called phone numbers on the National Do Not Call Registry, called consumers who had told them not to call, failed to transmit caller identification to consumers’ caller ID service, delivered pre-recorded messages without prior written consent, repeatedly called consumers to annoy them, and delivered pre-recorded messages that failed to identify the seller, the call’s purpose, and the product or service.” The settlement resolves a complaint the FTC filed in 2012 against Jeremy R. Nelson and four companies he controlled, Nelson Gamble & Associates LLP, Jackson Hunter Morris & Knight LLC, BlackRock Professional Corporation, and Mekhia Capital LLC. The settlement agreement bans the telemarketer from selling debt relief services, telemarketing, and making robocalls. The agreement also imposes a judgment of more than $4.6 million, which will be suspended based on the telemarketer’s inability to pay. More information regarding the settlement agreement is 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

  • On August 6, 2013, the Department of Health and Human Services announced that Farzad Mostashari, the head of the Office of the National Coordinator for Health IT (ONC), will be stepping down this fall.

Mostashari spent four years with ONC, first as a Deputy National Coordinator, then taking over as the National Coordinator in 2011. ONC is the principal federal entity charged with coordination of nationwide efforts to implement advanced health information technology and to foster the electronic exchange of health information. The National Coordinator position was first created in 2004.

Developments in Intercarrier Compensation

  • On August 5, 2013, Southwestern Bell Telephone Co. d/b/a AT&T Texas filed a petition with the Texas Public Utility Commission (TPUC) seeking deregulation of its local exchange service in 109 exchanges. Under Texas law, PURA § 65.052(b), the TPUC is required to deregulate an exchange with a population of at least 100,000, or an exchange with fewer than 100,000 residents, if there are at least two unaffiliated competitors, in addition to the incumbent local exchange carrier (ILEC), providing voice communications in all or part of the market, without regard to the technology employed. AT&T Texas stated that each of the 109 exchanges for which it is seeking deregulation meet this criteria. AT&T Texas also filed a proposed procedural schedule for the petition, suggesting an intervention deadline of August 23, 2013, and a final deadline for TPUC action of November 3, 2013. 

Compliance Notes

  • 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.

  • Completed FCC Form 477s, which are summarized annually in the Local Competition and Broadband Report, are due September 3, 2013. FCC Form 477 collects data concerning broadband connections to end user locations, wired and wireless local telephone services, and interconnected Voice over Internet Protocol (VoIP) services in individual states and territories.

This filing requirement applies to: facilities-based providers of broadband connections to end user locations; providers of wired or fixed wireless local exchange telephone service; providers of interconnected Voice over Internet Protocol (interconnected VoIP) service (including both service retailers and service wholesalers); and facilities-based providers of mobile telephony service. Filers must report data as of June 30, 2013.

Completed forms can be filed electronically here. The FCC has released a webpage to assist filers with completing the form that is available 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. Reply Comments on the competitive bidding procedures are due August 16, 2013. The request for comment is available here

In the Courts

  • On August 1, 2013, the U.S. District Court for the Northern District of Georgia rejected a consumer group’s as-applied challenge to the constitutionality of the Telephone Consumer Protection Act (TCPA). Citizens for Transportation Mobility (CTM) is a non-profit organization created to advocate funding for transportation projects in the greater Atlanta area. It hired a marketing firm, On Target Public Affairs, to handle calls to potential voters. Both CTM and On Target were sued in this putative class action for allegedly violating TCPA by making pre-recorded voice calls to the plaintiff’s mobile phone without his consent. They responded by challenging the statute as an infringement on free speech. The court reasoned that TCPA is content-neutral and serves a significant government interest, and thus warrants “intermediate scrutiny” under the First Amendment. The court then held that TCPA survives this scrutiny, because it “only prohibits unsolicited calls made through use of an automatic telephone dialing system or artificial prerecorded voice. The TCPA also permits automated calls if the caller has ‘prior express consent of the called party.’” Offering further guidance, the court stated that “the defendants can communicate their political message through live solicitation calls, targeted mail, email, and door-to-door canvassing. Moreover, the defendants could have used automatic dialing systems to call cellular phones as long as they obtain the recipient’s consent, which could be done by a person who then switches over to an automated message when consent is obtained.” The case will proceed to the merits. Wreyford v. Citizens for Transp. Mobility, Inc., No. 1:12-CV-2524-RLV (N.D. Ga. Aug. 1, 2013). 

Legislative Outlook

  • On August 8, 2013, several members of the House Commerce Committee sent Acting FCC Chairwoman Clyburn a letter regarding the mandate in the Rail Safety Improvement Act of 2008 to install positive train control (PTC) technology on several rail lines by December 31, 2015. Specifically, the members urged Clyburn “to move expeditiously to put a process in place to facilitate the timely deployment of PTC,” due to concerns that the FCC’s “environmental historic and review processes and regulations” will delay transmission tower buildout. The members closed by stating that they “would appreciate periodic updates from you or your staff on efforts to resolve this matter.” To read the letter and the related press release, click here.
  • The House and Senate are scheduled to return from summer recess on September 9, 2013.