February 26, 2013 TechComm Industry Update PATTON BOGGS LLPPowered by In this update:Patton Boggs • Lawmakers Push for Collection of Currently Owed Online SalesTechComm Team TaxationIf you have any questions • FCC Guidance on Wireless Infrastructureabout the foregoing or if yourequire additional • Wireless Bureau Seeks Comment on CTIA Petition Regardinginformation, please Temporary Wireless Towerscontact: • FCC Revises Experimental Radio Service Rules to Boost Wireless InnovationJennifer L. Richter202-457-5666 • FCC Adopts Rules to Promote In-flight Internet Servicesjrichter@pattonboggs.com • FCC Creates Healthcare Connect FundPaul C. Besozzi • FCC Seeks Further Comments on Implementation of the Remote202-457-5292 Areas Fundpbesozzi@pattonboggs.com • DC Circuit Overturns FCC’s “Plug and Play” RulesMichael E. Drobac202-457-7557 • FTC Releases Recommendations on Mobile Privacy Disclosuresmdrobac@pattonboggs.com • FTC Amends Children’s Online Privacy Protection Act RulesRyan W. King • FCC AWS-4 Rules: Full Wireless Terrestrial Authority for 2 GHz202-457-5312 MSS Licenseesrking@pattonboggs.com • FCC Proposes AWS H-Block Service RulesCarly T. Didden • FCC Proposes a New Citizens Broadband Service in the 3.5 GHz202-457-6323 Bandcdidden@pattonboggs.com • Senator Wyden to Pursue Data Cap LegislationJennifer A. Cetta • D.C. Circuit Upholds FCC Ruling on Data Roaming202email@example.com • FCC February MeetingBenjamin Bartlett • FCC Revises Spectrum Screen Rules for Wireless Transactions202-457-7631 and Auctionsbbartlett@pattonboggs.com • FCC Confirms Legality of Confirmatory Text MessagesMaria C. Wolvin • Bill Introduced to Prohibit Lifeline Support for Free Cell Phone202-457-6568 Servicemwolvin@pattonboggs.com • Comments Requested on Text-to-911 ServiceSarah G. Vilms • Immigration Reform Provides Opportunities for TechComm202-457-5248 Industrysvilms@pattonboggs.com • Comments Sought on Incentive Auction SoftwareMelanie C. Goggins • FCC Seeks Comments on Inmate Calling202firstname.lastname@example.org
• Deadline for First Benchmark of the E911 Location Accuracy Rules Has Passed • Representative Lofgren Posts Draft Bill to Narrow Computer Fraud and Abuse Act • Deadline for First Annual CVAA Certification Approaching • FCC Adopts Immediate Interim Rules and Issues NPRM for IP CTS • FCC Seeks Comments on Rural Call Completion • WCB Seeks Comment on Copper Retirement Rule • Data Collection and Analysis of Special Access Market • Comment Sought on Petition to Declare ILECs Non-Dominant in Providing Switched Access Services • FCC Seeks Comment on AT&T and NTCA Petitions Regarding Transition to IP-Based Services • Additional Guidance Released for Broadcasters Commenting Anonymously on Incentive Auction ProceedingsLawmakers Push for Collection of Currently Owed Online SalesTaxationOn February 14, 2013, a bicameral and bipartisan group of lawmakersintroduced the Marketplace Fairness Act (S. 336) to provide amechanism for the collection of sales taxes on ecommerce transactions.The streamlined sales tax project (SSTP) has been developing a singlestandard for states and localities to collect taxes that are already owedbut not collected and technology exists to facilitate such collections. In1992, the Supreme Court held in Quill Corp. v. North Dakota, 504 U.S.298, that such collection could be a burden to interstate commerce butspecifically referenced Congress’ authority to create a pathway forcollection. Overwhelming support exists on both sides of the aisle topass the Marketplace Fairness Act. Multichannel retailers such as BestBuy, JCPenney, Target, Wal-Mart, Lowes, Home Depot, Sears andAmazon.com all support the legislation and have formed a coalitioncalled the Marketplace Fairness Coalition. eBay and Overstock havebeen the primary opponents. With states facing critical budgetshortfalls, the Marketplace Fairness Act would create a mechanism tocollect billions of dollars lost in owed but uncollected taxes -- $23 billionin 2012 and more in 2013 and 2014, as Internet sales are expected torise. Governors, Mayors, state elected officials and county officials haveall weighed in support of the urgency of this measure. Opponents arguethat there could be complications with the more than 10,000 taxingjurisdictions, however, software companies have made it clear toCongressional leaders they do not foresee any problems withstreamlined collections. A hearing and markup are expected on thelegislation as statements of support have come from Majority LeaderReid (D-NV) and Chairman Bob Goodlatte (R-VA).
FCC Guidance on Wireless InfrastructureThe Federal Communications Commission’s (FCC) WirelessTelecommunications Bureau has released guidance on how theCommission will interpret Section 6409(a) of last year’s Middle ClassTax Relief and Job Creation Act. That statute provides, among otherthings, that a state or local government “may not deny, and shallapprove” certain prescribed changes to existing wireless towers or basestations. The FCC Chairman announced that the Bureau was acting aspart of a comprehensive Commission effort to remove barriers tobroadband build-out, including streamlining the deployment of mobilebroadband infrastructure. The guidance addresses, for example, whatthe terms “wireless tower” and “base station” as used in the statutemean, and what it means to substantially change the physicaldimensions of a tower or base station. It also makes clear that a stateor local government may require the filing of an application foradministrative, as opposed to substantive, approval of permittedchanges. The Commission acted after receiving informal inquiries fromservice providers, facilities owners, and state and local governmentsseeking guidance on how the statute should be applied.Wireless Bureau Seeks Comment on CTIA Petition RegardingTemporary Wireless TowersCTIA-The Wireless Association (CTIA) has asked the FCC to initiate arulemaking to add an exception to the current public notice requirementsin the Commission’s Antenna Structure Registration (“ASR”) rules fortemporary wireless towers that (a) will be in use for 60 days or less; (b)require the filing of a notice with the Federal Aviation Administration onForm 7460-1; (c) do not require marking and lighting under FAAregulations; and (d) will be less than 200 feet in height. CTIA asks thatthe Commission provide a blanket waiver so that towers meeting theforegoing criteria would be exempt from the ASR public noticerequirements while any rulemaking initiated pursuant to the request ispending. CTIA claims that, emergency situations aside, there are manynon-emergency situations that arise where carriers need temporarytowers to address short-term capacity constraints, but have insufficientadvance notice to complete the public notice process. Initial commentson the CTIA request were filed on February 25; reply comments are dueby March 12.FCC Revises Experimental Radio Service Rules to Boost WirelessInnovationThe FCC has merged all of the rules devoted to experimentation,including broadcast experiments and developmental operations, into asingle consolidated set of rules under Part 5 Experimental RadioService. The changes provide greater flexibility for licensees in howthey conduct research and development by permitting them to modifyexisting experiments and conduct new experiments within a broad rangeof frequencies, emissions and power levels at defined geographiclocations under a single license. Among other things, the changes add
three new types of licenses: a program experimental license, a medicaltesting license and a compliance testing license. Experimentation underthese new licenses must be on a non-interference basis, as with currentexperimental licenses. In addition, the change increases the current limiton non-certified devices that can be imported into the U.S. for thepurpose of testing and evaluation, and adds flexibility by providingauthority for the conduct of product demonstrations prior to equipmentauthorization at trade shows when there is a negligible risk ofinterference.FCC Adopts Rules to Promote In-flight Internet ServicesThe FCC has adopted technical and licensing rules for Earth StationsAboard Aircrafts (ESAA) that are meant to speed the deploymentbroadband service on commercial and private aircraft. ESAAscommunicate with Fixed-Satellite Service geostationary-orbit spacestations operating in the 10.95-11.2 GHz, 11.45-11.7 GHz, 11.7-12.2GHz (space-to-Earth or downlink) and 14.0-14.5 GHz (Earth-to-space oruplink) frequency bands. With these rules, the FCC also seeks toreduce administrative burdens and process EASS applications up to 50percent faster. In addition, the FCC requests comment on whether toallow ESAAs to operate in the 14.0-14.5 GHz band on a primary basis.Comments are due 75 days after publication of the notice in the FederalRegister, and reply comments are due 105 days after publication.FCC Creates Healthcare Connect FundThe FCC has established the Healthcare Connect Fund in an effort toreform and modernize its universal service program for health care. TheFund will expand access to high-bandwidth connections that health careproviders need for telemedicine and replace the existing Internet Accessand Rural Health Care Pilot Programs. The new program is meant toencourage the formation of state and regional health care networks, andwill allow providers to construct their own broadband infrastructurewhere it is the most cost-effective option. Participants must contribute35 percent of the costs of broadband services or facilities.The FCC also created a new Pilot Program to test whether to expandthe Healthcare Connect Program to skilled nursing facilities. Up to $50million will be available over a three year period for programs thatpropose to use broadband to improve the quality and efficiency of healthcare delivery for skilled nursing facility patents.FCC Seeks Further Comments on Implementation of the RemoteAreas FundThe FCC seeks further comments on the implementation of the RemoteAreas Fund, including how to define the areas where Remote Areasfunding will be available; and how to set the consumer subsidy,consumer eligibility, budgetary measures, service provider participation,performance requirements, and accountability and oversight. The FCC
established the Remote Areas Fund, with an annual budget of at least$100 million, within the Connect America Fund to ensure thatconsumers who live in the most remote areas of the nation have theability to obtain service. Comments were filed on February 19, andreply comments are due by March 18.DC Circuit Overturns FCC’s “Plug and Play” RulesHolding that the FCC lacked the statutory authority to restrict the use of“encoding” technologies that block consumers from recording televisionprograms, the DC Circuit vacated the entire Plug and Play Order asapplied to all multichannel video programming distributors (MVPDs).“Plug and Play” stems from a 2003 agreement ratified by the FCCbetween television manufacturers and the cable industry that allowedconsumers with digital-ready sets to receive high-definition televisionprogramming from cable companies without a high-definition set-topbox. According to the court, “[a]pplying the encoding rules to cableproviders may meet consumer expectations with respect to the marketfor cable devices, but that is no reason to impose these rules on allMVPDs.”FTC Releases Recommendations on Mobile Privacy DisclosuresThe Federal Trade Commission (FTC) released a staff report reviewingthe benefits and privacy risks of mobile technologies and recommendingways to inform consumers about data collection and access practices.For example, the report states that mobile platforms should provide just-in-time disclosures to consumers and obtain their affirmative expressconsent before allowing apps to access sensitive content likegeolocation. In addition, mobile platforms should consider offering a DoNot Track mechanism for smartphone users. The FTC also introduceda new business guide, Mobile App Developers: Start with Security,which provides tips intended to help app developers approach mobiledata security.FTC Amends Children’s Online Privacy Protection Act RulesAfter two comment periods, the Federal Trade Commission (FTC) hasreleased its final amendments to the Children’s Online PrivacyProtection Act (COPPA). Revisions include the expansion of the“personal information” definition to protect children’s geolocationinformation, persistent identifiers, photos, and videos, as well as theclosure of a loophole that previously allowed kid-directed websites topermit third parties to collect information without parental consent.COPPA now extends to third parties if they knowingly operate on achild-directed site, but excludes platforms such as Google Play and theApp Store. Companies are also being encouraged to create additionalmeans to collect parental consent. The amendments were lauded bySenators Mark Pryor (R-AR) and John Rockefeller (D-WV) as well asRepresentatives Joe Barton (R-TX) and Edward Markey (D-MA).
FCC AWS-4 Rules: Full Wireless Terrestrial Authority for 2 GHzMSS LicenseesThe FCC adopted terrestrial wireless service, technical and licensingrules for 40 MHz of 2 GHz Mobile Satellite Service (MSS) spectrum,2000-2020 MHz paired with 2180-2200 MHz (AWS-4 band). The newrules, after additional FCC action, will replace incumbent MSSlicensees’ Ancillary Terrestrial Component (ATC) authority with fullflexible-use wireless terrestrial authority. The FCC also adoptedperformance requirements for the AWS-4 band – provision of wirelessservice to 40 percent and 70 percent of the population in the licensedterrestrial wireless service area within four and seven years,respectively. Penalties apply to MSS licensees that are not able to meetthe wireless performance requirements, including the loss ofinterference protection for satellite operations.FCC Proposes AWS H-Block Service RulesThe proposed AWS H-Block licensing and technical rules makeavailable an additional 10 MHz of spectrum adjacent to PersonalCommunications Service (PCS) spectrum, which is widely used toprovide mobile voice and broadband services. Due to possibleinterference to PCS downlink operations from the lower H Block, theFCC seeks comment on possible uses for the lower H Block, includingunlicensed PCS operations. The proposed rules will also permit the useof mobile and lower power fixed operations in the 1015-1020 MHzportion of the H Block and base and fixed operations in the 1995-2000MHz portion of the H Block. Reply comments are due by March 6.FCC Proposes a New Citizens Broadband Service in the 3.5 GHzBandThe FCC proposes to create a new Citizens Broadband Service in the3.5 GHz band (3550-3650 MHz) that would utilize small cells andspectrum sharing, and to apply this new regulatory regime to theexisting 3.65 GHz band (3650-3700 MHz). This proposal is part of theAdministration’s continued effort to free up more spectrum for wirelessbroadband.The Citizens Broadband Service would be structured in three tiers withdifferent levels of rights and protections, and include a spectrum accesssystem (SAS). The SAS would protect incumbent users (i.e., militaryand satellite operations) and manage interference between the differenttiers. The FCC also proposes employing a license-by-rule regime. Tofacilitate the potential creation of the Citizens Broadband Service, theFCC instructed the International Bureau to stop accepting applicationsin the 3600-3650 MHz band for new earth stations for fixed-satelliteservice if the proposed earth station is more than 10 miles from acurrently licensed earth station.
Comments on these proposals were filed on February 20, and replycomments are due by March 22. In addition, the FCC’s WirelessTelecommunications Bureau and Office of Engineering and Technologywill host a workshop on March 13 to further explore the concepts andproposals raised in the Notice of Proposed Rulemaking (NPRM).Senator Wyden to Pursue Data Cap LegislationAt the end of last year, Senator Ron Wyden (D-OR), introducedlegislation designed to regulate the use of data caps increasingly beingimposed by Internet Service Providers (ISPs) on consumer dataconsumption (Data Cap Integrity Act). The proposal would require theFCC to establish standards for ISPs to accurately measure data usageof consumers, ensure that data caps are designed to manage networkcongestion rather than maximize revenue, provide consumers with toolsto manage data consumption, and prohibit ISPs from discriminatingagainst any content when measuring data. Senator Wyden hasindicated that he will continue to pursue this legislation in 2013, but thelegislation has not been re-introduced this Congress.During the FCC’s consideration of net neutrality rules in 2010, FCCChairman Julius Genachowski voiced support for Internet Service Providers(ISPs) experimenting with broadband usage caps or tiered broadband plansin an effort to explore different business models. In May of 2012 at theCable Show, Chairman Genachowski again confirmed his support forusage-based billing. In the FCC’s Report and Order on Net Neutrality, theFCC noted: “…[t]he framework we adopt today does not prevent broadbandproviders from asking subscribers who use the network less to pay less,and subscribers who use the network more to pay more.” However, in earlySeptember 2012, Chairman Genachowski voiced concerns aboutbroadband caps by stating that “[a]nything that depresses broadband usageis something that we need to be really concerned about.” He continued bysaying that: “[w]e should all be concerned with anything that is incompatiblewith the psychology of abundance.”D.C. Circuit Upholds FCC Ruling on Data RoamingThe United States Court of Appeals for the District of Columbia Circuithas upheld the FCC’s authority to issue a rule requiring mobile-dataproviders to offer roaming agreements to other such providers on“commercially reasonable” terms. The rule was challenged by VerizonWireless on multiple grounds, but most significantly on the grounds thatthe FCC lacked statutory authority to issue the rule and that the ruletreated mobile-Internet providers as common carriers. The Court foundthat Title III of the Communications Act of 1934, as amended, plainlyempowers the FCC to promulgate the data roaming rule. Although therule bears some marks of common carriage, the Court deferred to theFCC’s determination that the rule imposes no common carrierobligations on mobile-internet providers. In addition, the Court foundthat the rule does not affect an unconstitutional taking and is neitherarbitrary nor capricious. The decision of the three judge panel wasunanimous.
FCC February MeetingThe FCC considered two items during its open meeting on February 20: • Increasing the Amount of Spectrum Available for Unlicensed Devices in the 5 GHz Band: The Commission approved a Notice of Proposed Rulemaking to substantially increase the amount of unlicensed spectrum available to accelerate the growth and expansion of new Wi-Fi technology, offering consumers faster speeds and less network congestion at Wi-Fi hot spots. • Improving Wireless Coverage for Consumers Through the use of Signal Boosters: The Commission approved a Report and Order to significantly enhance wireless coverage for consumers, while protecting wireless networks from interference, by adopting new technical, operational and registration requirements for signal boosters.FCC Revises Spectrum Screen Rules for Wireless Transactionsand AuctionsThe FCC recently revised its “spectrum screen” to include 20 MHz ofWireless Communications Service (WCS) spectrum. The FCC uses thespectrum screen when reviewing transactions and auctions to helpidentify markets where the acquisition of spectrum provides particularreason for further competitive analysis. The FCC declined to include the2.5 GHz band in the spectrum screen. The FCC has opened a separateproceeding to reform the spectrum screen.FCC Confirms Legality of Confirmatory Text MessagesThe FCC issued a declaratory ruling agreeing with SoundBiteCommunications that sending a one-time text message confirming aconsumer’s request that no further text messages be sent does notviolate the Telephone Consumer Protection Act (TCPA) or the FCC’srules. These messages must: (1) merely confirm the consumer’s opt-out request and not include any marketing or promotional information;and (2) be the only additional message sent to the consumer afterreceipt of the opt-out request. Confirmatory text messages sent withinfive minutes of the consumer’s opt-out will be presumed to fall within theconsumer’s prior express consent to receive text messages from thesender. Patton Boggs represented SoundBite in this proceeding.Bill Introduced to Prohibit Lifeline Support for Free Cell PhoneServiceRepresentative Tim Griffin (R-AZ) introduced the Stop Taxpayer FundedCell Phones Act (H.R.176) to prohibit universal service support ofcommercial mobile service through the Lifeline program. The bill would
end federal subsidies for free cell phone services. RepresentativeGriffin proposed similar legislation during the 112th Congress, but it didnot gain any traction.It has recently come to light that many of the individuals signed up bytelecommunications companies to receive cell phones were not eligiblefor the program. Some of the federal funds may have to be returned tothe government. The House Energy and Commerce Committee iscurrently investigating this program and we expect the Committee tosend document request letters to several telecommunicationscompanies in the near term.Comments Requested on Text-to-911 ServiceThe FCC seeks comment on its proposal to allow consumers to sendtext messages to 911. The proposal builds on a voluntary commitmentrecently made by the four largest wireless carriers, with the support ofpublic safety organizations, to make text-to-911 available to theircustomers by May 15, 2014, and to provide automatic “bounce back”messages across their networks by June 30. Comments are sought onwhether to require all wireless carriers and providers of “interconnected”text messaging applications to support text-to-911 in areas where 911Public Safety Answering Points (PSAPs) can receive them. In addition,the FCC proposes to require these carriers and providers to send theautomated “bounce back” messages to consumers when the service isunavailable. The comment cycle on the “bounce back” proposal andconsumer education efforts has closed. Comments on other sectionsare due by March 11, and reply comments are due by April 9.Immigration Reform Provides Opportunities for TechCommIndustryCongress has begun in earnest to address immigration reform. Abipartisan group of 14 Senators led by Senator Orrin Hatch (R-UT) andSenator Amy Klobuchar (D-MN) introduced the Immigration InnovationAct of 2013 to boost high-tech innovations through reforms to the H1-Bvisa for highly skilled temporary workers. These types of reforms couldpositively impact the TechComm industry. The bill primarily aims toincrease caps on the numbers of H1-B visas that the U.S. currentlyallows. However, because the immigration debate and reform will bemuch larger than the focus of this bill, now is an opportune time forindustry to provide input to address specific needs.Comments Sought on Incentive Auction SoftwareThe FCC’s Office of Engineering and Technology released newsoftware, TVStudy, that will be used in the upcoming incentive auctions.The software will allow the FCC to “produce television station serviceand interference data that . . . will serve as an input to the algorithmsthat will be used to select operating channels.” Comments are soughton the software generally, as well as the identification of any errors,
unexpected behaviors, or the anomalous results produced in runningthe software. Comments are due by March 21, and reply comments aredue by April 5.FCC Seeks Comments on Inmate CallingThe FCC seeks comment on the reasonableness of inmate callingservice (ICS) rates for interstate, long distance calling at publicly- andprivately-administered correction facilities. The Notice of ProposedRulemaking is a follow up to two prior rulemaking petitions on thissubject (First Wright Petition and Alternative Wright Petition). The FCCseeks comment on a number of related issues, including possible capson ICS rates, competition in the ICS market, site commissions, non-geographic numbers, disabilities access, transitioning existing contracts,and the FCC’s legal authority to regulate ICS. Comments are due byMarch 25 and reply comments by April 22.Deadline for First Benchmark of the E911 Location Accuracy RulesHas PassedCommercial Mobile Radio Service (CMRS) providers that deployhandset-based location accuracy technologies were required to meetthe initial E911 benchmark for location accuracy standards at either acounty-based or Public Safety Answering Point (PSAP)-basedgeographic level by January 18. In addition, all CMRS licensees mustnow provide confidence and uncertainty data on a per-call basis uponthe request of a PSAP, and E911 System Service Providers mustimplement any modifications that will enable the transmission ofconfidence and uncertainty data provided by wireless carriers to thePSAP.Representative Lofgren Posts Draft Bill to Narrow Computer Fraudand Abuse ActRepresentative Zoe Lofgren (D-CA) has introduced a bill that wouldamend the current computer hacking law in honor of Internet activist andco-creator of the social media site Reddit, Aaron Swartz, who committedsuicide in early January. Swartz was accused of stealing academicarticles from computer archives from MIT and faced federal hackingcharges. Swartz could have been sentenced to up to 35 years in prisonand a fine of up to $1 million. Lofgren posted her draft of the bill, whichshe hopes to call “Aaron’s Law” to Reddit on January 15.Congresswoman Lofgren claims that the government was able to levy“such disproportionate charges” against Swartz because of the broadscope of the Computer Fraud and Abuse Act (CFAA) and the wire fraudstatute. The bill would amend these measures to exclude terms ofservice violations.
Deadline for First Annual CVAA Certification ApproachingSection 717 of the Twenty-First Century Communications and VideoAccessibility Act of 2010 (CVAA) establishes new recordkeeping andcertification requirements applicable to any entity that is subject toSection 255, 716 or 718 of the Communications Act, includingtelecommunications carriers, VoIP providers and certain equipmentmanufacturers. Covered providers are required to maintain records ofthe efforts to implement the CVAA, including information about theproviders’ efforts to consult with individuals with disabilities andinformation about the compatibility of services with peripheral devices orspecialized customer premise equipment. This recordkeepingrequirement began on January 30. Section 717 also requires that anofficer of a provider shall certify annually to the FCC that, for theprevious calendar year, records have been kept in accordance with theCommission’s rules. The first Section 717 certification must be filed withthe Commission by April 1, 2013, and annually thereafter for recordspertaining to the previous calendar year. Certifications are required tobe submitted electronically through the newly established“Recordkeeping Compliance Certification and Contact InformationRegistry” located here.FCC Adopts Immediate Interim Rules and Issues NPRM for IP CTSThe FCC has adopted interim rules to address practices that it believeshave contributed to a spike in reimbursement requests made byproviders of Internet Protocol Captioned Telephone Service (IP CTS).The FCC bypassed the typical notice and comment procedures allowingthe interim rules to take effect immediately in three stages, which beganon February 5. The interim rules: (1) prohibit all referrals for rewardsprograms and any other form of direct or indirect inducements for IPCTS subscription; (2) require each IP CTS provider to register eachuser, including to obtain certifications of hearing loss from the userand/or a third party professional; and (3) require providers to ensure adefault setting of captions off at the beginning of each call so that usershave to take an affirmative step to use IP CTS. The FCC also clarifiedits Interstate Telecommunications Relay Service (TRS) payment rule toexplicitly provide that the Fund administrator shall not be obligated topay any request for compensation until it has been established ascompensable.In the accompanying NPRM, the FCC seeks comment on whether tomake permanent, revise or eliminate any of the interim rules. Theagency also asked about other issues such as the likely reasonscausing the unusually rapid growth of IP CTS and whether to adoptrequirements for IP CTS equipment to have labels informing consumersthat IP CTS may only be used by persons with hearing disabilities.Comments were filed on February 26, and reply comments are due byMarch 12.
FCC Seeks Comments on Rural Call CompletionThe FCC seeks comment on how to address problems associated withcompleting long-distance telephone calls to rural customers. The FCCasks about proposed reporting and data retention requirements relatedto call answer rates, how to minimize compliance burdens, and why callanswer rates are different in rural and non-rural areas. The FCC alsoproposes to prohibit both originating and intermediate providers fromcausing audible ringing to be sent to the caller before the terminatingprovider has signaled that the called party is being alerted. Commentsare due 30 days after publication in the Federal Register and replycomments are due 45 days after publication.WCB Seeks Comment on Copper Retirement RuleThe FCC’s Wireline Competition Bureau seeks comment on a request to“refresh the record” and make certain changes to copper retirementrules to “preserve and promote affordable broadband over copper.” Therequest was made by Mpower Communications Corp.; U.S. TelePacificCorp.; ACN Communications Services, Inc.; Level 3 Communications,LLC; TDS Metrocom, LLC and Telecommunications for the Deaf andHard of Hearing, Inc. These parties call on the FCC to requireincumbent Local Exchange Carriers (ILECS) to provide competitivecarriers with access to unbundled copper loops even when the FCC hasgiven the ILEC permission to retire those loops. They further ask theagency to prohibit ILECS from removing copper loops withoutaffirmative permission, and to clarify that ILECs continue to have a dutyto provide unbundled access to cooper loops that remain in place.Comments are due by March 5 and reply comments are due by March20.Data Collection and Analysis of Special Access MarketThe FCC will require providers and purchasers of special access serviceand certain other services to submit data, information and documentsthat will allow the agency to evaluate the state of competition in thespecial access market. The data collection will apply to certainproviders of best efforts business broadband Internet access services,but not to rate-of-return carriers to the extent the carrier provides specialaccess within its rate-of-return service area. The information to becollected falls within five general categories: market structure, pricing,demand (i.e., observed sales and purchases), terms and conditions, andcompetitive pricing decisions. The FCC delegated limited authority tothe Wireline Competition Bureau to implement the data collection,including to make amendments and corrections to the collection and toset deadlines for responses.The FCC also issued a Further Notice of Proposed Rulemaking in orderto determine whether relief from special access regulation is appropriateand to update special access rules.
• In Section IV.A of the notice, the agency seeks comment on a market analysis that it intends to undertake in the coming months to assist in evaluating the price flexibility rules. • In Section IV.B, the FCC further asks how pricing flexibility rules might change after the agency conducts its market analysis, and what steps the FCC should take where relief has been provided under its existing rules and where the data and its analysis demonstrates that competition is not sufficient to discipline the marketplace. • In section IV.C, the agency seeks data and information on the terms and conditions offered by incumbent LECs for special access services.Reply comments on Sections IV.A and C are due by March 12. Inaddition, comments on Section IV.B are due by August 19, and replycomments are due by September 30.Comment Sought on Petition to Declare ILECs Non-Dominant inProviding Switched Access ServicesThe FCC seeks comment on a petition filed by the United StatesTelecom Association (USTA) requesting a declaration that incumbentlocal exchange carriers (ILECs) are no longer presumptively dominantwhen providing voice services over traditional switched accessnetworks. According to the USTA, given the substantial shift ofconsumers away from the legacy public switched telephone network(PSTN) to IP-based services offered over broadband networks, it nolonger makes sense from an economics or public policy standpoint tocontinue to treat ILECs as dominant, and therefore subject to increasedregulatory burdens. Comments were filed on February 25, and replycomments are due by March 12.FCC Seeks Comment on AT&T and NTCA Petitions RegardingTransition to IP-Based ServicesThe FCC is considering comments filed in response to separatepetitions filed by AT&T and the National TelecommunicationsCooperative Association about the transition to IP-based voicenetworks. AT&T called on the agency to open a new proceeding to helpfacilitate the transition from legacy telephone transmission platforms andservices to Internet Protocol (IP) based services. The companyproposes that the FCC conduct limited “trial runs” of the transition fromlegacy to next-generation services. AT&T asserts that the trials will“help the Commission understand the technological and policydimensions of the TDM-to-IP transition and, in the process, identify theregulatory reforms needed to promote consumer interests and preserveprivate incentives to upgrade America’s broadband infrastructure.”NCTA asked the FCC to initiate a rulemaking to promote the evolutionof the public switched telephone network from TDM to IP “through
targeted, thoughtful regulatory relief and the establishment of more appropriate near term economic incentives.” FCC Chairman Julius Genachowski also formed an agency-wide Technology Transitions Policy Task Force that, among other things, will coordinate the Commission’s efforts on IP interconnection, resiliency of 21st century communications networks, business broadband competition, and consumer protection with a particular focus on voice services. The Task Force will hold its first workshop on March 18. Additional Guidance Released for Broadcasters Commenting Anonymously on Incentive Auction Proceedings The FCC Media Bureau has released additional guidance for broadcasters who wish to file anonymous comments regarding the incentive auction proceedings. If a broadcaster chooses not to disclose its identity, the FCC requests that it provide enough information so that the Commission and public can “understand and evaluate the position it takes,” including basic facts such as the market tier in which it operates and whether or not it is network-affiliated. Furthermore, broadcasters who file their anonymous comments electronically must seek a waiver of Section 1.419(e). Reply comments on the NPRM are due by March 12. ************* If you have questions regarding any of the items discussed above, or if you are interested in filing comments or receiving copies of filed comments in any of the FCC proceedings mentioned, please contact the Patton Boggs TechComm practice group. More information about our team can be found at www.pattonboggstechcomm.com.This information is not intended to constitute, and is not a substitute for, legal or other advice. You should consultappropriate counsel or other advisers, taking into account your relevant circumstances and issues. While not intended, thisUpdate may in part be construed as an advertisement under developing laws and rules. www.pattonboggstechcomm.com