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

The Commission's efforts to resolve the 2009 Omnibus CPNI NAL continue to provide insights into the enforcement process generally.  In the past, we've commented on surprisingly small settlements and odd provisions, but two orders earlier this week are especially cryptic.

In both orders, the Chief of the Telecommunications Consumers Division of the FCC Enforcement Bureau concluded that "no forfeiture should be imposed" with respect to the carriers identified.  I would like to provide you a definitive reason for the cancellation, but the orders literally provide no explanation of the basis for that conclusion. 

In one case, I believe the rationale is that the entities are interconnected VoIP providers.  As we've explained previously, because of the Commission's refusal to determine if interconnected VoIP providers are telecommunications carriers, they get one free bite at FCC violations.  Each of the three carriers listed in this cancellation order reports itself as an interconnected VoIP provider on its USF forms.  Because of that, the FCC could not impose a fine for failing to file the CPNI certification unless the FCC had issued a Citation first.

The other case is truly mystifying.  The two carriers listed in this cancellation order are listed as a "CAP/LEC" and an "IXC", respectively, in the USF filer database.  Although one appears to have ceased providing business in 2007, the other provider filed a Form 499-A in April 2011.  We are left to guess what circumstances justified the decision not to impose a forfeiture.

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According to the FCC's weekly list of pending items on circulation, the Commission appears ready to resolve a longstanding petition by an interconnected VoIP provider to cancel its 2007 FCC regulatory fee.  The ruling could have impact on future regulatory fee assessments, but the specific relief relating to 2007 (if the petitioner is successful) is likely to be limited to the petitioner.

See below for more on the pending action.

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As we've noted previously, the U.S. Department of Justice has urged the FCC to take an expansive interpretation of the Truth in Caller ID Act of 2009.  In comments filed last week, the Department continued its effort to have the FCC apply the rules to VoIP providers, including those not subject to any FCC rules today.

In its comments in response to the FCC Notice of Proposed Rulemaking, the Department urged the FCC to adopt rules regulating Caller ID spoofing providers directly.  It contends that this authority is rooted in the Truth in Caller ID Act of 2009 itself and in the Commission's "ancillary" authority over non-common carriers (the same authority at issue in the Comcast net neutrality case).  The Department does not explicitly mention non-interconnected VoIP providers or one-way VoIP providers in its comments, but its arguments would extend to any service provider offering spoofing services. 

The Department's comments are available here.

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Last week brought new actions in three of the FCC's most common enforcement areas:  Failure to pay USF contributions, "robocall" telemarketing violations and "junk fax" solicitations.  One action also is an example of anti-spoofing enforcement by the Commission.  The Commission's actions are briefly described below.

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It has been a month and a half since we noted that the FCC and Maryland PSC were investigating an incident in which Verizon experienced outages in processing wireless 911 calls to two Maryland counties.  See below for a quick update on the status of each investigation.

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In a move that has more symbolic than practical effect, on Friday, the U.S. House of Representatives approved a resolution of disapproval of the FCC's December 21, 2010 Net Neutrality Order.  The Resolution was approved largely along party lines, with only two Republicans voting against the measure and only six Democrats voting for the measure.

To become effective, the resolution of disapproval would have to be approved by the Senate and signed by the President.  The Senate is not expected to approve the resolution, and the President stated that he would veto any disapproval measure.

The next major step for the Net Neutrality Order will be Court of Appeals review.  That will commence once the FCC publishes notice of the order in the Federal Register.

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With the continued uncertainty regarding the classification of VoIP service and the application of intercarrier compensation to VoIP, litigation over VoIP charges is extensive.  In the latest case to reach a decision, the FCC ruled that a CLEC serving an affiliated VoIP provider may not collect tariffed access charges for terminating calls to the VoIP customers or for 8YY calls originated by the VoIP customers.

The FCC order was issued in a formal complaint case brought by AT&T against YMax Communications Corp., whose affiliated entity provides the MagicJack VoIP device.  The Commission agreed with AT&T that it did not have to pay YMax's access charges for the traffic in question.

The FCC's decision is a narrow one, however.  It ruled only that the CLEC's tariff language did not apply to the traffic, not that VoIP may not be subject to access charges.  The primary lesson of the case is that a VoIP provider must carefully consider the description of its services, and not necessarily use "cookie cutter" tariffs designed for traditional PSTN traffic. 

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With only hours (as of this writing) before a likely government shutdown over the budget, the FCC finally released its shutdown plan. 

UPDATE 4/9/11:  Congress reached a resolution of the FY 2011 budget battle late last night.  The President's discussion is available here, and Speaker Boehner's release is available here.  Congress passed a short-term continuing resolution to avert a shutdown, and are preparing a bill to fund the government through the remainder of FY 2011.  It appears, therefore, that the FCC shutdown plan will not be needed.

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We are pleased to announce that Kelley Drye is expanding its national presence by merging with White O'Connor Fink & Brenner LLP, a highly respected Los Angeles litigation firm best known for its success in complex business and entertainment industry litigation.

This merger returns Kelley Drye to California and adds a significant new expertise in the entertainment and media industry.  White O’Connor’s attorneys strengthen Kelley Drye’s capabilities in several other key practice areas and bring a well-established record of trial victories. They have defended and prosecuted a wide range of cases, including entertainment, First Amendment, insurance recovery, media-related torts, real estate, copyright, trademark, antitrust, class actions and other complicated commercial disputes.

To learn more, see our press release and review the practice group description on our website.

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Back in January, we posted on Verizon's attempt to appeal the FCC's Net Neutrality order.  Verizon presented a controversial claim that the order was a "licensing" decision which limited review to the U.S. Court of Appeals for the D.C. Circuit.  The FCC opposed that interpretation.

If successful, Verizon's preemptive move would have prevented a lottery from deciding which court of appeals considered the Net Neutrality order.  Yesterday, however, the D.C. Circuit dismissed Verizon's appeal as premature.

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