TCPA Watch

Business, legal and policy developments under the Telephone Consumer Protection Act.

 

1
Live Webcast Examines Controversial Pole Attachment Rules and Right-of-Way Access [UPDATED 6/21/11]
2
FCC Working Group Releases Future of Media Report
3
FCC Proposes to Extend Outage Reporting Rules to Internet-based Services [Updated: 6/9/11]
4
Spectrum Auction Legislation Passes Senate Commerce Committee
5
House Committee Launches Data Security and Electronic Privacy Review
6
Net Neutrality Opponents Question Publication Delay
7
Copyright Bill Targeting Rogue Websites Approved by Senate Judiciary Committee
8
If You Want Broadband, You’ve Got To Get It Built
9
Verizon Challenges FCC Data Roaming Rules
10
House Committee Majority Staff Proposes Structural Changes to FCC

Live Webcast Examines Controversial Pole Attachment Rules and Right-of-Way Access [UPDATED 6/21/11]

Last week’s “Poles and Holes” webcast, carried live on Broadband US TV, sparked a lively debate among panelists representing the telecom sector on the one hand, and utility and local governmental interests on the other. The program featured FCC Wireline Competition Bureau Chief Sharon Gillett who talked with co-hosts Marty Stern of K&L Gates and Jim Baller of The Baller Herbst Law Group about the scope and application of the FCC’s new pole attachment rules, including the rules’ controversial new telecom rate formula and the first-time requirement that incumbent telephone companies get the benefit of regulated pole attachment rates.

The panel discussion highlighted the strong disagreement between telecom industry interests and utilities over the Commission’s new telecom rate formula, new deadlines on completing attachments, and whether revised rules were needed at all. On rights-of-way access and facilities siting matters involving local governments, there was also significant disagreement over the extent to which particular local governments have been a hindrance to deployment. One industry panelist suggested, particularly as to wireless deployments, that “it’s a real fight” in too many cases. Joanne Hovis, President-elect of NATOA, bristled at that notion, stressing the interest of governments in working cooperatively and collaboratively with providers to facilitate broadband deployment, and argued that the industry is trying to “short-circuit localism” and asking the FCC for relief. Hovis, instead, offered that industry should “come to us and we will work with you. If you have a problem with one of our members, we will work with them as well.”

The webcast may be viewed here (registration required).

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FCC Working Group Releases Future of Media Report

The FCC Working Group on the Information Needs of Communities delivered a comprehensive report yesterday addressing recent fundamental changes in the media landscape. The “Information Needs of Communities” report, produced by a group of journalists, scholars, media entrepreneurs, and government officials, reached a number of conclusions indicating that while technological advancements have improved public access to information, major deficiencies exist in contemporary news coverage. Specifically, the report found:

  • An explosion in Internet-based reporting on “hyperlocal” news directed by citizen journalists. The report expects further public reliance on Internet news sources as these non-traditional outlets proliferate. The Working Group pushed for rapid universal broadband deployment to expand access to these new media sources in rural and underserved communities. 
  • A marked decline in “local accountability reporting” from tradition news organizations. The Working Group noted that the recent increase in media outlets failed to result in more stories focused on community issues. The report warns that the dearth of local overage will result in less government accountability, greater corruption, wasted taxpayer dollars, and other community detriments. As a result, the study recommends policymakers craft incentives for media organizations to establish a “state-based C-SPAN” system and allocate more of the federal government’s $1 billion advertising budget for local media outlets.
  • Enhanced collaboration between commercial and non-profit media organizations, with synergies growing across media sectors. The report discovered increased diversification in non-profit media offerings, which the Working Group suggested should be supported through favorable tax reforms.
  • The FCC should take action to put media disclosure information online for easier public access. The Working Group advocated streamlining programming disclosures and eliminating burdensome disclosure rules. The report also advised the agency to take steps to discourage “pay-for-play” arrangements where TV stations allow advertisers to influence content. The report calls for the online disclosure of these arrangements.
  • The media industry would benefit from the repeal of the Fairness Doctrine and the termination of the FCC’s localism proceeding. The report also suggested the FCC re-assess the efficacy of the current satellite TV set-aside for educational programming.

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FCC Proposes to Extend Outage Reporting Rules to Internet-based Services [Updated: 6/9/11]

Update [6/9/11]:  The FCC’s Notice of Proposed Rulemaking extending outage reporting requirements to interconnected VoIP and broadband-based services was published in today’s Federal Register.  Comments are due by AUGUST 8, 2011 and reply comments are due by OCTOBER 7, 2011.  As we previously noted, the proposed rules raise a number of the same jurisdictional issues as the FCC’s net neutrality order and other Commission initiatives extending various regulatory requirements to IP-based services, and will likely be hotly contested. 

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The FCC believes Internet-related outages are a growing problem for which providers lack sufficient accountability and consumers lack appropriate notice. To address these issues, yesterday the FCC adopted a Notice of Proposed Rulemaking which would require interconnected VoIP, broadband Internet, and broadband backbone providers to report service outages lasting longer than 30 minutes. The proposal would impose reporting obligations similar to those currently borne by wireline and wireless carriers, cable operators, and certain satellite providers, and represents the latest example of FCC efforts to layer traditional carrier regulations on VoIP and broadband providers. The Commissioners voted 4-0 in favor of the proposed rules (Commissioner Meredith Baker recused herself following her announced upcoming departure from the FCC to join NBC/Universal). Citing the recent natural disasters affecting Japan and the Midwest and Southern states of the United States, Chairman Julius Genachowski stated the reporting obligations would provide the FCC with the data necessary to rapidly respond to emergency situations.

Leading Internet service and VoIP providers immediately criticized the proposed new rules, arguing that regulations designed for traditional circuit switched phone service are ill-suited for Internet-based technologies. By contrast, public service commissions of states like California and New York hailed the proposal as an effective means of improving local emergency communications.

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Spectrum Auction Legislation Passes Senate Commerce Committee

With wireless Internet traffic expected to increase 26-fold over the next few years, the Senate Commerce Committee yesterday approved the Public Safety Spectrum and Wireless Innovation Act, sending the divisive legislation on to the full Senate for consideration. The bill further stokes the ongoing battle across industry sectors over how best to apportion spectrum and who should bear the burden of reallocation, addressing in one bill issues surrounding both the public safety D-Block spectrum and broadcast spectrum reallocation.

The cornerstone of the new legislation is the establishment of controversial “incentive auctions,” where television broadcasters and other licensees will voluntarily cede some of their existing spectrum inventory to the FCC in exchange for a share of the auction proceeds. The Act would also compensate broadcasters that retain their spectrum but agree to be “repacked” to adjacent channels, potentially freeing up new swaths of spectrum for public use. Auction income would be used to fund the construction and maintenance of a nationwide wireless broadband network dedicated to public safety services. Any surplus revenue obtained from the auctions would go to the U.S. Treasury targeted for deficit reduction. The Act further allocates 10 megahertz of spectrum known as the D-Block for the creation of the public safety broadband network and would permit public safety officials to lease capacity on their network subject to certain restrictions.

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House Committee Launches Data Security and Electronic Privacy Review

In the wake of recent high-profile data breaches suffered by major companies that exposed over 100 million customer records to identity theft, the House Energy and Commerce Committee announced plans to conduct a sweeping review of the data security and privacy issues affecting American consumers and businesses. The Committee will divide the review into two phases by first surveying current security measures used to protect personal information online before turning to bolstering privacy protections for Internet users. Committee Chairman Rep. Fred Upton (R-MI) noted that the recent rise in cyber attacks seeking access to personal data necessitates a reassessment of the security standards used by companies that collect customer information. Communications and Technology Subcommittee Chairman Rep. Greg Walden (R-OR) echoed Sen. Upton’s concerns and stated that the review aims to produce policies which will strike a balance between protecting consumer information and maintaining innovation.

The Committee’s review will likely serve as a launching point to evaluate existing cybersecurity proposals and develop new data protection legislation. In April, Sen. John Kerry (D-MA) and Sen. John McCain (R-AZ) introduced the “Commercial Privacy Bill of Rights Act” to establish federal consumer privacy protections that would apply across industry sectors and level stiff civil penalties against companies that mishandle or lose customer information. To protect the privacy of young social media users, Rep. Joe Barton (R-TX) and Ed Markey (D-MA) proposed the “Do Not Track Kids Act,” which would establish a “Digital Marketing Bill of Rights for Teens,” require companies to erase personal information upon request, and prohibit the storage of user geolocation data. The storage of geolocation data garnered recent media attention following reports that Apple’s iPod and iPad operating systems tracked user movements through a software “bug” which the company later removed. States such as California have also attempted to force social media providers to afford customers more control over their online privacy settings, facing staunch opposition from many major Internet companies.

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Net Neutrality Opponents Question Publication Delay

Administrative delays continue to plague the publication of the FCC’s controversial Net Neutrality Order adopted back in December 2010. According to agency observers, ongoing negotiations with Internet service providers and the need for OMB to approve the rules’ complex information reporting requirements may push the publication date of the regulations into the Fall.

The official publication of the regulations in the Federal Register will enable net neutrality opponents to launch long-awaited legal and legislative challenges against the Order. Even as publication remained pending, Verizon and Metro PCS each appealed the Order in the D.C. Circuit, contending that the FCC exceeded its statutory authority when it imposed the new regulations. The D.C. Circuit dismissed the suits without prejudice last month because the companies filed prior to the Order’s publication, but Verizon indicated that it plans to refile its challenge once the rules are published in the Federal Register. 

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Copyright Bill Targeting Rogue Websites Approved by Senate Judiciary Committee

The Senate Judiciary Committee unanimously voted to approve legislation aimed at shutting down “rogue” websites selling counterfeit goods or offering pirated content. The PROTECT IP Act would authorize the Justice Department to seek court orders prohibiting American Internet service providers from offering access to infringing sites. The Act would further allow content owners to prevent online advertising services and credit card companies from dealing with websites “dedicated to infringing activities.” The new bill represents a less sweeping version of the abandoned Combating Online Infringement and Counterfeits Act (“COICA”) bill, which would have permitted the government to seize domain names involved in copyright infringement.

While some media watchdog groups greeted the proposed reforms with guarded optimism, other organizations expressed lingering concerns over the constitutionality of the Act. Critics note that the definition of a website “dedicated to infringing activities” includes sites which they argue play too small a role in the infringing activity. Reports indicate that the threat of broad enforcement may drive leading Internet search providers like Google to challenge the bill if enacted.

Proponents of the bill, such as Sen. Patrick Leahy (D-VT), contend that the scope of the legislation remains narrow and will only target the “worst-of-the-worst” infringing websites. The proposal enjoys strong support from manufacturer associations and the Chamber of Commerce which blame rogue sites for job losses and recent market declines. The National Association for Broadcasters recently joined the fight in favor of the bill, citing the need to combat widespread piracy of movie and television content. Whether such bipartisan support and industry backing will be enough for the PROTECT IP Act to succeed where its predecessor failed remains to be seen.

If You Want Broadband, You’ve Got To Get It Built

With expanding broadband as its defining priority, the FCC is taking a number of steps to facilitate the deployment of broadband facilities. We recently wrote on the FCC’s new pole attachment order, intended to expedite and lower the cost of access to utility poles. In a companion Notice of Inquiry, published today in the Federal Register, the Commission will be exploring ways that local governments and other authorities can help improve rights-of-way access and facility siting, both of which are key to mobile broadband deployment. Comments on the NOI are due by July 18 and Replies are due August 30. 

To give the FCC’s action some context, it has been estimated that the wireless industry has deployed some 250,000 cell sites in the U.S. in the last 25 years. With 4G deployments, which require sites deeper into the network, one analyst estimated that the country will need 2.4 million sites by 2020 to support the expected level of mobile broadband traffic. For those who remember the battles a few years back between the telecom industry and local governments, as well as agencies managing federal lands, a real question exists as to how that all gets done.

Enter the FCC and the facilities deployment NOI, which has identified and seeks comment on various points of contention between industry and government affecting broadband buildout, in an effort to identify a comprehensive solution. These include timeliness and ease of the permitting process; reasonableness of rights-of-way and other charges; outdated ordinances and statutes, including the treatment of small antenna systems on existing facilities (known as Distributed Antenna Systems or DAS); differing regulation between rights-of-way access, including traditional pole attachments versus wireless facilities siting; and opportunities for FCC intervention and best practices.

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Verizon Challenges FCC Data Roaming Rules

In a move expected by many industry analysts, Verizon Wireless filed a notice of appeal last week in the U.S. Court of Appeals for the District of Columbia challenging the data roaming obligations imposed on wireless carriers adopted by the FCC last month. The FCC order required all wireless carriers to allow customers of competitors to roam on their data networks and mandated “commercially reasonable terms” for intercarrier roaming agreements. The Commission adopted the data roaming order through a close 3-2 vote, with Commissioners Robert McDowell and Meredith Baker questioning the FCC’s authority to impose common carriage-like requirements on an information service.

Verizon’s appeal echoes the dissenting Commissioners’ concerns, characterizing the data roaming order as an arbitrary and capricious exercise of the FCC’s power that unduly burdens major carriers such as itself and AT&T. The company further contends that the new regulations are unnecessary due to the many data roaming agreements the company has with small- and medium-sized wireless companies. Verizon stated that the company now has less incentive to expand its wireless infrastructure if it must share its network with outside users. Meanwhile, consumer watchdog groups hailed the order as necessary to sustain competition during a time when AT&T’s attempted purchase of T-Mobile may lead to further market consolidation.

The data roaming appeal marks Verizon’s most recent challenge to the FCC’s statutory authority at the D.C. Circuit. Just last month, the court dismissed suits brought by Verizon and another carrier against the FCC’s net neutrality regulations because the carriers filed their complaints prematurely.

House Committee Majority Staff Proposes Structural Changes to FCC

With all five FCC Commissioners scheduled to appear before the House Subcommittee on Communications and Technology today, the majority staff of the Committee on Energy and Commerce released a memorandum proposing significant changes to the FCC’s operating procedures.  According to the memorandum, the proposed reforms will streamline the Commission’s rulemaking processes and provide for more public input before the agency renders its decisions.  A few of the key proposals recommended in the memorandum include:

1.      Requiring the FCC to initiate all rulemaking proceedings with a notice of inquiry instead of a notice of proposed rulemaking. This mandatory prerequisite before the FCC could propose rules would require more deliberation by the agency before it adopts final rules.

2.      Obligating the FCC to publish the text of proposed rules for public comment before adopting any final rule.  In addition, agenda items scheduled for a vote by the FCC would be published in advance of any agency meeting.

3.      Establishing minimum comment and review periods for all proposed rules.  The FCC would also be required to render rulemaking decisions by set deadlines.

4.      Allowing a bipartisan majority of FCC Commissioners to set agenda items for consideration.  This proposal would replace the current process where the FCC Chairman holds the initial power to designate an agenda item for consideration. This proposal could also have the effect of requiring a supermajority of Commissioners to approve agenda items (although FCC Commissioner votes do not always fall along partisan lines).

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