"Federal Communications Commission (FCC) Announcements"
October 26, 2009 Welcome to this week's edition of Arent Fox's This Week in Telecom, our weekly newsletter designed to keep you apprised of recent developments in telecommunications policy, legislation and litigation. Federal Communications Commission (FCC) Announcements FCC Chairman Julius Genachowski has announced the following new Senior Staff: Mindel De La Torre, Chief of the International Bureau, and Yul Kwon, Deputy Chief of the Consumer and Governmental Affairs Bureau. Commissioner Meredith Attwell Baker has announced her new Staff. The Legal Advisor for Media issues will be Brad Gillen who starts November 9, 2009. The Legal Advisor for Wireless, International, and Public Safety issues will be Charles Mathias. Christi Shewman, who previously was an Acting Legal Advisor, has been named Legal Advisor for Wireline issues. Millie Kerr will serve as Confidential Assistant and Staff Attorney to the Commissioner. The next Quarterly Board Meeting of the Universal Service Administrative Company will be held on October 27, 2009, at USAC's Washington, DC office located at 2000 L Street NW, Suite 200, Washington, DC. The meeting is open to the public. (DA 09- 2098, CC Docket Nos. 96-45, 97-21) FCC Commences Child Safety Proceeding On October 23, 2009, the FCC released a Notice of Inquiry commencing a new Media Bureau docket entitled Empowering Parents and Protecting Children in an Evolving Media Landscape, MB Docket No. 09-194. The NOI seeks comment on child safety and literacy in the various electronic media. Comments will be due 60 days from the date of publication in the Federal Register. Please contact Ross Buntrock, Alan Fishel, Jeff Rummel, or Stephanie Joyce (contact information below) for further information or for assistance in filing comments. Developments in Intercarrier Compensation The Iowa Utilities Board (IUB) is seeking comments on proposed amendments to its rules to address so-called High Volume Access Service (HVAS) traffic. The proposed amendments consist of four separate items: (1) defining an HVAS situation as one in which a Local Exchange Carrier's (LEC) traffic increases by 100 percent in less than six months; (2) prohibiting association tariffs from applying association tariff rates to HVAS traffic; (3) requiring LECs to notify Interexchange Carriers (IXCs) of their plans to add an HVAS customer and prohibiting a LEC from charging IXCs for terminating HVAS traffic until the IUB approves that LEC’s separate HVAS tariff; and (4) authorizing the IUB to revoke a LEC’s certificate of public convenience and necessity if it does not comply with the IUB’s HVAS rules. Comments on the IUB’s proposed rules are currently due tomorrow, October 27, 2009. Please contact Ross Buntrock, Jon Canis, Michael Hazzard, or Stephanie Joyce (contact information below) for further information regarding this proceedings or for assistance with filing comments. (Docket No. RMU-2009-0009). Free Conferencing Corporation (Free Conferencing), a client of Arent Fox’s Telecommunications Practice Group, recently filed an Ex Parte with the Commission to present its side of the story in the ongoing dispute over whether the Commission should address access rates for high volume services. Free Conferencing explained that, despite the IXCs’ efforts to turn this dispute into a debate about adult chat-lines, it has never offered such services and has clients entities such as Obama for America, the Salvation Army, and the Kidney Cancer Association. Free Conferencing further argued that it was not its services that were driving an increase in traffic, but rather the IXCs’ unlimited long distance plans, which paradoxically attract the customers who talk the most while desensitizing such customers from the cost of making any particular call. (WC Docket Nos. 07-135 and 07-52). Stimulus This Week The Senate Commerce, Science, and Transportation Committee has scheduled a hearing for October 27, 2009, regarding oversight of the broadband stimulus programs under American Recovery and Reinvestment Act. The hearing is scheduled to start at 2:30 PM EST in Room 253 of the Russell Senate Office Building. The National Telecommunications and Information Administration (NTIA) and the Rural Utilities Service (RUS) have unveiled their List of Public Filings database in order to allow the public to comment on applications filed in the first round of funding under the NTIA's Broadband Technologies Opportunities Program (BTOP) and RUS's Broadband Initiatives Program (BIP). Commenters have until October 28, 2009 to file comments. Existing providers are not required to file comments on projects in their service areas unless they want their existing services to be included in the evaluation if an area is underserved or unserved under the Notice of Funds Availability Guidelines. All comments must be filed electronically as NTIA and RUS will not accept paper fillings. Please click here for the Web site. The Governors of Illinois, Maine, Michigan, Virginia, and Washington have each filed letters of with NTIA and RUS for the funding of various broadband deployment projects proposed for funding under NTIA's BTOP and BIP Programs. NTIA and RUS requested that the governors prioritize each proposed project in each of their respective states in order to assist NTIA and RUS in evaluating each project and awarding grants. The US Telecom Association, the National Cable & Telecommunications Association, the Organization for the Promotion and Advancement of Small Telecommunications Companies, the American Cable Association, the Independent Telephone & Telecommunications Alliance, and the Western Telecommunications Alliance filed a joint letter requesting that NTIA and RUS simplify the process by which incumbent carriers challenge the eligibility of an application's proposed service area as 'underserved' or 'unserved'. Currently, the incumbent carriers are required to use the agencies' mapping tool to review an area and “wait for the system to calculate the census block areas covered by the manually drawn map and then make adjustments.” The incumbent carriers are asking that they be allowed to access the service area data directly from the applications themselves and match it to their own internal databases in order to respond to NTIA and RUS more quickly and efficiently. There is no indication whether NTIA and RUS will grant such a request. However, it is widely believed that a request for information will be issued by NTIA and RUS before the end of the month, and that this request will focus in part on how to improve the second round of funding in order to develop the second Notice of Funds Availability (NOFA). The second NOFA is expected late this year or early next with applications for the next round of funding under both BTOP and BIP due in approximately February 2010. Please contact Ross Buntrock, Jonathan Canis, Alan Fishel or Jeffrey Rummel (contact information below) for further information regarding stimulus funding. FCC Wireless Notice of Inquiry EXTENSION OF TIME GRANTED: Reply Comments on the FCC Notice of Inquiry regarding innovation in the wireless industry are now due on on November 5, 2009 (Docket Nos. GN; 09-51, 09-157) pursuant to a 21-day extension granted by the FCC on the motion of CTIA and Public Knowledge (DA 09-2206). Please contact Alan Fishel, Michael Hazzard or Jeffrey Rummel (contact information below) for further information regarding this proceeding or for assistance with filing comments. In the Courts On Wednesday, November 4, 2009, the US Court of Appeals for the Second Circuit will hear argument in AT&T's appeal of the Connecticut District Court's decision that AT&T's “U-Verse” IPTV video offering is a “cable service” within the meaning of the Cable Act, and that it is therefore a “cable operator” under the Act. AT&T's principal argument on appeal is that the district court's opinion should be vacated as moot by virtue of a subsequent Connecticut state court decision regarding Connecticut's franchising law. Office of Consumer Counsel v. Southern New England Tel. Co. (Case No. 09-0116-cv). The US Court of Appeals for the Third Circuit will hear oral argument in Council Tree Communications, Inc. v. FCC (Case No. 08-2036) on December 1, 2009, a case in which the petitioners seek review of the FCC's 2006 revisions to its “designated entity” eligibility rules and its decision to apply those revised rules to the Advanced Wireless Services license spectrum auction. Compliance Notes The Universal Service Fund contribution rate for the fourth quarter of 2009 is 12.3 percent. (DA 09-2042, CC Docket 96-45) Completed Form 499-Qs are due November 1, 2009. Filers that are assessed $10,000 or more each year are required to file Form 499-Q. Please contact Ross Buntrock, Jonathan Canis or Michael Hazzard (contact information below) for further information. Broadband News On October 20, 2009, the FCC held a full-day workshop as part of the development of the National Broadband Plan, GN Docket Nos. 09-47, 09-51, 09-137, on “Broadband Accessibility for People with Disabilities: Barriers, Opportunities, and Policy Recommendations.” At the workshop Commissioner Michael Copps emphasized that broadband access technology available to persons with disabilities is 10-20 years behind the norm, thus putting those persons at a disadvantage in the digital world. Several panelists cited the costs of deploying broadband and communication devices accessible as major obstacles to wider adoption. Panelists also disagreed over the extent to which government regulation is necessary to encourage accessibility for, and noted that service providers seek to avoid specific government regulations. On October 2, 2009, the FCC requested comments in GN Docket Nos. 09-47, 09-51, 09-137 on whether the FCC or a non-governmental entity should establish a broadband clearinghouse for easy access to broadband best practices. The FCC is seeking comment on who should create such a clearinghouse, what would be the most useful content, and who would most benefit from the clearinghouse, among other items. Comments are due November 16, 2009. Please contact Ross Buntrock, Jon Canis, Alan Fishel, Michael Hazzard or Jeffrey Rummel (contact information below) for further information or for assistance in filing comments. On Wednesday, October 14, 2009, the FCC established a pleading cycle in GN Docket Nos. 09-47, 09-51, and 09-137 seeking comments on a draft study the FCC had commissioned from Harvard University's Berkman Center for Internet and Society as part of the development of the National Broadband Plan. The Center had conducted “an expert review of existing literature and studies about broadband deployment and usage throughout the world” and the FCC seeks comment on draft study's usefulness and whether similar studies would be helpful. Comments are due November 16, 2009. The study is available here. On October 19, 2009, the FCC corrected a prior public notice in GN Docket No. 09-29 that had announced a report on rural broadband, but had not attached the report entitled “Bringing Broadband to Rural America: Report on a Rural Broadband Strategy.” The report can be found here. On October 22, 2009, the FCC established a pleading cycle seeking comments in WC Docket No. 09-193 regarding a petition filed by the National Association of Regulatory Utility Commissioners (NARUC) that sought clarification on whether any FCC order or regulation “limits State authority to collect any data from any broadband infrastructure or service provider.” The FCC invited comment on what if any FCC order or regulation preempted state broadband information filing requirements. Comment are due November 2, 2009, and replies are due November 9, 2009. Please contact Ross Buntrock, Jon Canis, Alan Fishel, Michael Hazzard or Jeffrey Rummel (contact information below) for further information or for assistance in filing comments Reply Comments in the Spectrum for Broadband proceeding (GN Docket Nos. 09-47, 09-51, 09-137) are due November 13, 2009. The FCC is seeking comment on the sufficiency of current spectrum allocations, including but not limited to the prime spectrum bands below 3.7 GHz. This proceeding arose from comments made at FCC broadband workshops indicating that sufficient spectrum may not be available in the future. Please contact Ross Buntrock, Jon Canis, Alan Fishel, Michael Hazzard or Jeffrey Rummel (contact information below) for further information or for assistance in filing comments. On September 25, 2009, the FCC established a pleading cycle in GN Docket Nos. 09-47, 09-51, 09-137 seeking comment on the “Contribution of Federal, State, Tribal and Local Government to Broadband.” The FCC is seeking comment on how governments can promote the adoption of broadband and “how digital technologies and broadband deployment can improve civic engagement, government at all levels, and the lives and welfare of residents and businesses.” Specifically, the comments seek to information on e-government, government broadband initiatives, and use of government assets, among other items. Comments are due November 6, 2009. Please contact Ross Buntrock, Jon Canis, Alan Fishel, Michael Hazzard or Jeffrey Rummel (contact information below) for further information or for assistance in filing comments. The FCC is also seeking comment on “Broadband Deployment and Adoption on Tribal Lands” (GN Docket Nos. 09-47, 09-51, 09-137). As part of the National Broadband Plan, the FCC is seeking comment on more specific areas, here broadband in Indian lands. Specifically, the proceeding seeks comment on identifying and remedying barriers to broadband deployment and adoption on Tribal land, whether prior deployment of telephone lines offers any guidance to broadband deployment, and how the FCC, Tribes, and private carriers can facilitate deployment, among other items. Comments are due on November 9, 2009, and reply comments are due December 9, 2009. Please contact Ross Buntrock, Jon Canis, Alan Fishel, Michael Hazzard or Jeffrey Rummel (contact information below) for further information or for assistance in filing comments. Legislative Outlook Two new surveillance bills were introduced on October 20, 2009, by House Judiciary Committee Chairman John Conyers, D-Mich., HR 3485, the “USA PATRIOT Amendment Act of 2009,” would extend the sunset on the USA PATRIOT Improvement and Reauthorization Act of 2005 to December 31, 2013 as well as toughen the standard for for issuing surveillance orders and affording subpoenaed carriers the right to challenge the legality of orders. HR 3486, the “FISA [Foreign Intelligence Surveillance Act] Amendments Act of 2009,” most notably would repeal the retroactive immunity given to telecommunications carriers that complied with the improper warrants issued under the Bush Administration. On October 22, 2009, the House Communications Subcommittee held a hearing entitled “Video Competition in a Digital Age.” Witnesses included Benjamin Pyne, President for Global Distribution of Disney Media Networks, Terrence K. Denson, Vice President of Corporate Marketing for Verizon, and Adam Thierer, President of the Progress and Freedom Foundation. House Commerce Committee Chairman Henry Waxman, D-Calif., opened the hearing with a statement noting that “the market for distribution of video programming is changing,” but that “the advantages of historic incumbency can be difficult for new entrants to overcome absent government intervention.” Mr. Denson highlighted the reach and features of its FiOS product as having spurred innovation from cable providers but noted that Verizon continues to face “a variety of regulations that do not apply to the cable incumbents with whom we compete.” He cited “win back” regulations as an example. Mr. Thierer of PFF stated that “there's more competition for our eyes than ever before” and that, if anything, “citizens suffer from 'information overload,' not information scarcity.” On October 22, 2009, Chairman Waxman and Senate Commerce Committee John Rockefeller, D-W.Va., issued a letter to FCC Chairman Genachowski on the Net Neutrality Notice of Proposed Rulemaking issued that day by the FCC. The one-page letter stated simply that the Chairmen support the FCC's efforts, particularly its efforts “to conduct this rulemaking in an open and transparent manner that is fair to all parties.” The Senate Commerce Committee will hold a hearing tomorrow, October 27, 2009, at 2:30 pm Eastern (SR-253), on Oversight of the Broadband Stimulus Programs of the American Recovery and Reinvestment Act. Scheduled witnesses are Larry Strickling (NTIA), Jonathan Adelstein (RUS Administrator), and Dr. Mark Goldstein (Director of Government Accountability Office). HEARING RESCHEDULED: The Senate Commerce Committee has rescheduled its hearing titled “Combating Distracted Driving: Managing Behavioral and Technological Risks” from October 14, 2009, as previously announced, to Wednesday, October 28, 2009, at 2:30 pm EST in Room SR-253. Scheduled witnesses include FCC Chairman Julius Genachowski and US Secretary of Transportation Ray LaHood. Upcoming Events Today, October 26, 2009, Arent Fox Partner Jeffrey Rummel will speak at the Next Generation Radio Communications & Spectrum Technologies Conference in Las Vegas, NV, sponsored by the Association of Naval Aviation (ANA). His speech is titled “FCC Regulation of the Manufacture, Development & Testing of Military Communications Systems; Defense Contractor Strategies for Effective and Streamlined Licensing of Experimental Systems.” On November 3, 2009, Jeffrey Rummel will speak on FCC licensing requirements at the Annual Symposium for the Antenna Measurement Techniques Association (AMTA) in Salt Lake City, Utah. Jeff is Co-Chair of AMTA's Committee on FCC Compliance and Licensing, and has spoken before the organization at several prior events. Attendees will include defense contractors and antenna and telecom manufacturers from around the world. For further information, please contact any of our attorneys in the Arent Fox Telecommunications Group, including: Ross A. Buntrock email@example.com 202.775.5734 Jonathan E. Canis firstname.lastname@example.org 202.775.5738 Alan G. Fishel email@example.com 202.857.6450 Michael B. Hazzard firstname.lastname@example.org 202.857.6029 Stephanie A. 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