Telecom Law Monitor : Washington D.C. Telecom Lawyer & Attorney : Kelley Drye & Warren Law Firm : New York, Chicago, Connecticut, New Jersey, Brussels

The Genachowski FCC is enamored with the bully pulpit as an enforcement tool.  In the year since the new Chairman has taken office, we've seen examples with FCC letters to Apple regarding its iPhone approval practices; letters to Google concerning the classification of Google Voice; and letters to wireless carriers concerning their early termination fees.  This time, the FCC's Public Safety and Homeland Security Bureau "reminds" telecommunications carriers of the need to provide diversity and redundancy in their 911 and E-911 services.  Although the Public Notice is not enforceable and does not cite to enforceable rules, it clearly is intended to influence carrier behavior.  Those who fail to heed this "reminder" could find themselves in an investigation questioning whether their practices are "just and reasonable."

The Public Notice stemmed from a review by the Bureau of network outage reports that carriers are required to file.  The Bureau stated that it has observed a "significant number" of 911/E911 outages caused by a lack of diversity.  Moreover, it notes that these outages "could have been avoided at little expense to the service provider"  (emphasis mine).   The clear implication is that FCC tolerance for these types of outages will diminish over time. 

Follow the link for a discussion of the diversity mistakes highlighted by the Bureau.

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Last year, the U.S. Congress directed the Federal Communications Commission (“FCC”) to develop a National Broadband Plan to ensure that every American has “access to broadband capability.” After 36 public workshops, 31 public notices that produced 75,000 pages of public comments, 131 blogposts that triggered 1,489 comments, 69,500 views on YouTube, and countless tweets, the National Broadband Plan is finally here. In the words of FCC Chairman Julius Genachowski, the National Broadband Plan is “a 21st century roadmap to spur economic growth and investment, create jobs, educate our children, protect our citizens, and engage in our democracy.” The National Broadband Plan will be a major influence on U.S. communications policy for the next decade, and it will be studied by broadband providers and national regulatory authorities in many other countries.

Join Robert Aamoth, Todd Daubert and Joan Griffin of the Telecommunications Practice Group of Kelley Drye & Warren LLP for an insightful discussion of the Plan, how implementation of the Plan might impact your business, and what you can do about it. The topics we will explore include:

• A succinct overview of the National Broadband Plan and its key elements;

• A discussion of the myriad new FCC proceedings that will be launched in the wake of the plan, with a focus on proposed reforms of the Universal Service Fund and intercarrier compensation;

• The Plan’s recommendations on changes in competition policy, such as new pricing and performance disclosure requirements for broadband service providers, and new rules to promote intermodal wholesale broadband competition;

• Proposals for more efficient recovery, allocation, and assignment of spectrum and for increased availability of infrastructure such as poles, conduits, rooftops, and rights-of-way; and

• Next steps for the Commission.

To register, call Alexandra Meaza at 202.945.6674 or email dcevents@kelleydrye.com.  Click here for additional details.

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On March 16, 2010, the Federal Communications Commission (“FCC”) announced the release of the National Broadband Plan (the “Plan”). The Plan outlines sweeping proposals intended to accelerate broadband access and adoption throughout the United States that will be implemented over the coming years. Over the coming months, the FCC will launch a series of rulemakings to seek public comment and adopt rules to implement these proposals. Broadband and telecommunications providers should expect these proceedings will be a key focus of the FCC for the next several years.

Among the Plan’s chief recommendations are proposals that would give the FCC and other policymakers an enhanced role in establishing and enforcing pro-consumer policies, including mandating heightened disclosure requirements for broadband service providers, publishing market-by-market analyses of broadband pricing and competition, and enhancing online privacy protections. The Plan also calls for the FCC to: increase the amount of spectrum available for allocation through the use of incentive auctions; expand the amount of spectrum available for unlicensed use; and increase the transparency of spectrum allocation in general. Further, the Plan includes recommendations to speed the development and adoption of technologies that touch on a wide range of policy objectives from health care to public safety to energy efficiency.

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Today, the FCC released its proposed Universal Service contribution factor for the second quarter of 2010.  As predicted, it is 15.3% The new rate will go into effect starting April 1, 2010. 

 

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It has been quiet on the FCC front as all hands seem to be focused on the upcoming National Broadband Plan.  In the meantime, I didn't want this development at the FTC to go unnoticed.  Our firm's sister blog, Adlawaccess, provided this report on the confirmation of two new Commissioners.  A statement by the FTC Chairman is available here.

With the FTC active in enforcement on prepaid card and mobile marketing matters, and with the FTC seeking an end to the "common carrier exception" to its jurisdiction, it is worth monitoring activities at the FTC. 

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The Universal Service Contribution factor has been increasing recently, but could it top 15%?  That is the prediction of Billy Jack Gregg, an analyst who studies the USF fund.  If it does, the cries for USF reform should grow even louder, just at the time that the FCC is announcing USF support for broadband in its National Broadband Plan.  Perhaps even -- or especially -- end users will object to being assessed what amounts to a 15% tax on their telecommunications purchases.  (Disclaimer:  technically, the USF is not a "tax"). 

This prediction stems from a routine filing made by the Universal Service Administrative Company (USAC).  USAC is required to submit to the FCC a quarterly estimate of the revenues and obligations of the Federal Universal Service Fund.  USAC submitted its most recent projection on March 2, 2010.  Billy Jack Gregg of Universal Consulting, who regularly analyzes USF issues, predicts based on this report that the 2Q 2010 USF contribution factor will be 15.3%, yet another new high.  Mr. Gregg has kindly agreed to allow us to post his projections here.  His chart of the USF contribution factor over time graphically displays the staggering increases in the fund the past 10 years. 

The FCC will not release its proposed USF factor for another week or so.  But history suggests that Mr. Gregg's projections will be pretty close.  This also may be a good time to remind contributors that any revisions to your 2Q 2010 499Q are due by March 18.  After that date, you will be assessed USF on the revenues you have projected, at the applicable USF contribution factor for the quarter.

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In a February 11, 2010 ruling in Palmerton Telephone Company v. Global NAPs South, Docket No. C-2009-2093336, the Pennsylvania PUC concluded that Global NAPs is required to pay intrastate access charges for terminating VoIP calls.  The opinion is 30 pages long and highly detailed, but overall it appears to be contrary to the recent decision by the U.S. District Court in Paetec v. CommPartners, where the court ruled that VoIP services are not subject to access charges.  And although the PA PUC attempted to distinguish another May 1, 2009 ruling of the U.S. Court of Appeals in Vonage v. Nebraska PSC preempting a state regulation of VoIP, the new PA PUC decision appears to contradict that Vonage ruling as well.  The May 2009 Vonage opinion upheld a lower court finding that the FCC had "concluded nomadic interconnected VoIP services were only subject to regulation by the FCC."  The PA PUC rejects that reading of Vonage on the basis that Global NAPs' wholesale services are different from Vonage's retail services (even while recognizing that over 50% of Global NAPs traffic may be VoIP).  The PUC thus claims jurisdiction and orders Global NAPs to pay intrastate access charges to Palmerton. 

These conflicting court and PUC rulings are providing increased need for the FCC to finally stop avoiding the issue and address directly the application of access charges to VoIP services.

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As of COB yesterday, 3070 unique CPNI submissions were made in the FCC's annual CPNI certification docket.  That number is almost the same as the 3,107 CPNI filers in 2009.  However, it still is about 500 fewer than the number of active USF filers, according to USAC's most recent report, and is over 3,000 entities fewer than USAC has in its filer database.  It looks like the FCC's Enforcement Bureau will still have some work to do to track down potential CPNI violators.

For those who failed to file the certificiations, be warned that last year, the FCC released an Omnibus CPNI NAL proposing to fine over 600 carriers $20,000 each for failing to file the required annual certification or for filing a non-compliant certification.  This year, the fine has increased to $25,000, at least according to two NALs released late last week (available here and here).  No, this is not an inflationary increase.  Instead, the Bureau reasoned that carriers were on notice of the requirement and had failed to file in past years as well.  Therefore, the action this year was more culpable and deserving of a higher fine.

If you didn't file your 2010 CPNI certification, you should do so soon.

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