Patton Boggs TechComm Industry Update - Week of September 1, 2008

    1 September 2008

    FCC Regulatory Fees due September 25, 2008

    September 25, 2008, 11:59 pm, is the due date for FCC Annual Regulatory Fee payments. Annual regulatory fees are due for many (but not all) wireless, radio, television, cable, earth station, and satellite licenses. Contact us if you need assistance in making payments or if you are unsure about payment obligations. Payment may be remitted to the FCC via U.S. Bank in St. Louis, MO, by check, credit card, or wire transfer. Credit card payments may also be made on-line using the FCC’s Fee Filer system available at http://www.fcc.gov/feefiler.

    Presidential Candidates United on ‘Internet Access For All,’ Divided on Other Telecom Issues

    Sens. John McCain (R-AZ) and Barack Obama (D-IL) share a common technology goal if either is elected the next president: to provide high-speed Internet access to all Americans. How they get there is a different matter.

    The two candidates diverge on how to finance deployment, with Sen. McCain favoring private investment in the build-out of high-speed networks and Sen. Obama seeking to use federal funds by expanding the Universal Service Fund (USF) to include broadband rollout.

    Sen. McCain, a former chairman of the Senate Commerce Committee, is well versed in telecommunications and technology matters. Sen. Obama has capitalized on a high-tech presidential campaign on the Internet and actively uses text messaging with his supporters, including to announce Sen. Biden (D-DE) as his vice presidential pick.

    While it is still somewhat early to know where the candidates stand on technology, Sens. Obama’s and McCain’s campaign sites, recent speeches, congressional votes and news accounts offer a broad outline of their preliminary policy directions.

    The candidates’ telecommunications advisors also shed light on their policy leanings. Both candidates have sought the counsel of former Federal Communications Commission chairmen. Obama tapped William Kennard and Reed Hundt, while McCain chose Michael Powell. Recently, Sen. Obama has been amassing a stable of telecom leaders from the Clinton-Gore administration, including former chief counsel to Reed Hundt, Julius Genachowski, now a special advisor to General Atlantic and managing director of Rock Creek Ventures. Mr. Genachowski is rumored to be on the short list of candidates to fill the next FCC Chairman’s slot if Sen. Obama wins the presidency.

    Here is a brief summary of the positions articulated by the candidates.

    INTERNET ACCESS

    In the presence of market failures to deploy broadband, or other obstacles, Sen. McCain would call on local governments to invest in broadband networks. To that end, Sens. McCain and Frank Lautenberg (D-NJ) introduced the “Community Broadband Act,” which would allow local governments to offer such services, particularly when private industry fails to do so.

    Sen. McCain also advocates for incentives for companies to build out Internet networks in un-served or under-served areas. He also supports private/public partnerships to help rural areas build out broadband infrastructure through government-backed loans or low-interest bonds. Bringing innovation to those with disabilities also is a priority with Sen. McCain, who has spearheaded congressional efforts for closed captioning, hearing aid compatibility, and video description.

    Meanwhile, Sen. Obama takes a different tack toward broadband deployment through a multi-year plan to change USF from a fund that supports voice communications to one that supports affordable broadband, with a focus on reaching un-served communities.

    Sen. Obama’s plan would also increase federal funding to be used for expanding broadband access, make better use of wireless spectrum, promoting next-generation facilities, technologies and applications, and new tax and loan incentives.

    WIRELESS ISSUES

    Sen. McCain hasn’t offered much of a preview on spectrum policy, but Sen. Obama’s campaign promises a review of “existing uses of our wireless spectrum.” His web site also notes that Sen. Obama will create incentives for more efficient, imaginative uses of government spectrum and new standards for commercial spectrum to bring broadband to rural, un-served communities.

    Sen. McCain, meanwhile, has opposed state and local taxes and fees on wireless services, an important issue among wireless providers. In some states and localities, wireless taxes account for up to 17 percent of a consumer’s bill. Such taxes, according to Sen. McCain’s campaign site, “dampen innovation and hit vulnerable Americans.”

    NET NEUTRALITY

    Sen. Obama favors open access and has vowed to block telecommunications companies from charging fees that “privilege the content or applications of some web sites and Internet applications over others.” Recently, Sen. Obama has told the media that he supports a net neutrality law that would pursue discrimination complaints against network operators. Sen. Obama’s vice presidential pick, Sen. Joe Biden of Delaware, has been less hawkish on the issue.

    Sen. McCain, meanwhile, does not think such a law is needed, policy advisor Doug Holtz-Eakin told Communications Daily. An open market with many consumer choices is the best deterrent against unfair practices, according to the Sen. McCain web site. He would keep the Internet free of unnecessary regulation, including taxation. McCain was among those leading the congressional fight a decade ago to ban taxes on Internet access.

    PRIVACY

    Sen. Obama plan pledges to provide protection against misuses of particularly sensitive kinds of information, such as location data and e-health records that do not fit within sector-specific privacy laws.

    Sen. Obama recently came under scrutiny for his vote on the Foreign Intelligence Surveillance Act, or FISA. In June he told CBS news he would try to strip a provision granting immunity to telecommunication companies from assisting the federal government in surveillance efforts. He ultimately switched his position to support a compromise bill in July that became law. Sen. McCain did not vote on the final compromise, but had voted to support earlier versions of the FISA bill.

    Sen. McCain believes the government should promote personal security through stronger enforcement of existing laws, particularly those protecting children, as well as consumer education initiatives and creating incentives for developing secure technologies. Sen. McCain notes that industry must take responsibility for protecting consumer privacy and preventing unintentional loss or theft.

    MEDIA CONSOLIDATION

    Sen. Obama opposes media consolidation and together with Sen. Biden signed on to a resolution sponsored by Sen. Byron Dorgan to overturn recent FCC consolidation rules. Sen. McCain did not sign the resolution, which passed the Senate, but awaits House action.

    HIGH TECH GROWTH

    Both candidates view technology comprehensively, and consider it a necessary component of health care, improving education, the environment, job creation, and public safety. Both campaign web sites speak of technological innovation. Sen. Obama, for one, challenges Americans: “Let’s make college more affordable, and let’s invest in scientific research and let’s lay down broadband lines through the heart of inner cities and rural towns all across America.” Sen. Obama has said he may appoint a Chief Technology Officer. Technological interoperability and overseeing the development of a national, interoperable wireless network for local, state and federal first responders are two of the goals Sen. Obama has set for the country’s first CTO.

    Sen. McCain, meanwhile, notes on his web site that communications is a component of our daily lives. “Nurturing technology and innovation is essential for solving the critical problems facing our country: developing alternative fuels, addressing climate change, stopping the spiraling expense of health care, and better educating our children.”

    Telemedicine a Key Issue in 111th Congress

    Telemedicine will be an important part of health care reform in 2009, an industry executive recently told Communications Daily.

    American Telemedicine Association CEO Jonathan Linkous said that telemedicine will be “very popular in the next Congress,” Communications Daily reported. More than 30 telemedicine bills are pending now, but Congress is unlikely to act on them before the end of the session.

    The Federal Communications Commission’s $417 million Rural Health Care Pilot Program is the primary means of federal telemedicine support, according to Pike & Fischer analyst Timothy Deal, also interviewed for the Communications Daily article.

    Although telemedicine is in its early stages, Linkous noted more investment and deployment in recent years, while advances in handsets designed to access patient data and new mobile medical devices to facilitate monitoring are expected to encourage investments exceeding $1.8 billion by 2013, Deal told Communications Daily.

    Wireless and wireline technologies are positioned to grow, as companies partner with health care providers to provide competitive services and prices.

    FCC Chairman Martin’s Silence Stalls Intercarrier Compensation Reform

    A court remand deadline gives the FCC until November 5, 2008 to reform ISP-bound intercarrier compensation. Chairman Martin has stated that he would prefer to implement broader intercarrier compensation reform before that date but has yet to reveal his plans to the FCC’s other Commissioners. Until then, the FCC’s other Commissioners are meeting with industry representatives to hear their recommendations for intercarrier compensation reform. Once Chairman Martin reveals his plans, the remaining Commissioners will likely begin discussions and negotiations with one another. The longer Chairman Martin waits to disclose his plans, the less likely all of the Commissioners will be able to agree on an order since draft orders are usually circulated three weeks before a vote deadline. If Chairman Martin’s plan is controversial or otherwise not acceptable to the other Commissioners, a longer delay can be expected while a compromise is worked out. Industry sources are split on whether or not Chairman Martin will be able to complete comprehensive intercarrier compensation reform by the November 5, 2008 deadline while some sources suggest a piecemeal approach to reform is a better solution.

    FCC Takes First Step to Implement the New and Emerging Technologies 911 Improvement Act of 2008 (NET 911 Act)

    In a notice released on August 25, 2008, the FCC proposed new rules to implement certain provisions of the New and Emerging Technologies 911 Improvement Act of 2008 (“NET 911 Act”), which would impose the obligation to provide 911 and E911 service on IP-enabled voice service providers, such as interconnected VoIP providers. Due to the need to adopt implementing regulations by October 21, 2008, the rulemaking has a very short comment cycle with initial comments due on September 9, 2008 and reply comments due on September 17, 2008.

    The NET 911 Act affords IP-enabled voice service providers access to 911 and E911 capabilities under the same rates, terms, and conditions offered to CMRS providers. It also provides for access to additional capabilities needed by IP-enabled voice services that are not needed by CMRS providers under the same rates, terms, and conditions they would be offered to CMRS providers if needed. The NET 911 Act directs the FCC to consider and adopt any additional regulations that may be needed to address “any technical, network security, or information privacy requirements that are specific to IP-enabled voice services.” The NET 911 Act requires interconnected VoIP providers to register with the FCC and to provide the FCC with “a point of contact for public safety and government officials” for 911 and E911 related issues. Additional issues available for comment are:

    • the definition of capabilities;

    • who owns and controls the 911 and E911 “capabilities” interconnected VoIP providers need access to;

    • the current rates, terms and conditions available to CMRS providers for 911 and E911 capabilities;

    • unique technical, network security, or information privacy requirements for interconnected VoIP providers that must be taken under consideration; and

    • if enforcement should be delegated to State or local authorities, or to another, non-federal emergency communications entity.

    The Roaming Debate Continues at the FCC

    Roaming has once again gained importance at the FCC in the context of the FCC’s review of two pending transactions, the Verizon-Alltel merger and the Sprint Nextel-Clearwire joint venture. Wireless consolidation and the addition of new wireless services such as AWS-1 and 700 MHz, are also forcing the FCC to review its roaming rules. Chairman Martin circulated a draft order revising the FCC’s roaming rules ahead of the FCC’s August 22, 2008 Open Meeting but the order was later pulled when the Chairman was unable to get support for it. Commissioners Copps and Adelstein offered a counter-proposal with revisions to the in-market provisions in the automatic roaming guidelines and a shift of the automatic roaming burden from wireless operators seeking roaming to carriers being approached to provide that capability, neither of which was acceptable to the Chairman. The FCC’s current automatic roaming rules require a wireless operator to request automatic roaming from the host wireless carrier.

    700 MHz White Spaces Debate Shifts

    As the FCC nears a resolution of the 700 MHz white spaces debate, there is a renewed effort by some carriers for licensing 700 MHz white spaces spectrum. The companies making a last minute push for licensed spectrum are Aloha Partners L.P., Qualcomm Inc., CTIA, and the Rural Cellular Association. Sprint Nextel Corp., T-Mobile USA Inc., FiberTower Corp. and others were early supporters of licensed spectrum as a less-costly alternative for wireless backhaul. House Commerce Committee Chairman John Dingell (D-Mich.) in a recent letter reminded the FCC to consider all proposals for the 700 MHz white spaces, including licensing the spectrum, since the spectrum is very valuable and licensing may minimize harmful interference. The FCC needs to make a decision on how the 700 MHz white spaces spectrum will be licensed, if at all, so it is available for use after the digital transition. Press reports indicate that Chairman Martin is committed to making a decision on the issue before he leaves office.

    In other 700 MHz, recent rumors indicate that Chairman Martin will circulate a further notice with proposed rules for the D-Block (public/private partnership) later this week ahead of the FCC’s September meeting. The further notice is rumored to have short comment deadlines and follows up on the FCC’s earlier notice that stated it would release a second notice seeking comment on its specific proposed rules.

    Google Launches App Marketplace for Android

    Similar to Apple’s App Store, Google has launched an app marketplace called Android Market. Android Market will initially contain free applications for download with a ratings system similar to YouTube. Applications for purchase will be added to Android Market at a later date. Android Market is another example of how smartphone content is driving innovation and giving customers more choices for how to use their devices. One big advantage to Android Market over similar stores is its openness, which pleases developers but raises concerns for Google because it is concerned that consumers may hold it responsible for applications that are ill-conceived or potentially offensive.

    Muni Broadband Is Alive

    There are an increasing number of muni-broadband success stories to report. Some cities, towns, and villages that have been unable to convince local telephone companies or cable incumbents to build fiber-to-the-home networks are either building or considering building their own wireless or fiber networks. With the increased availability of wireless broadband spectrum and the decreasing cost of fiber-to-the-home technology and installation, municipalities and some states are creating and funding fiber-to-the-home initiatives to bring broadband service to cities and under-served rural areas. Some systems provide retail service directly to customers and others are wholesale only services. More information regarding operational and proposed muni and state networks is available here http://telephonyonline.com/fttp/news/telecom_muni_fiber_networks/index.html.

    Senate Commerce Committee to Target Prepaid Calling Card Market

    The Senate Commerce, Science and Transportation Committee has rescheduled its postponed hearing on “Improving Consumer Protection in the Prepaid Calling Card Market” for Sept. 10, 2008. The hearing will be held at 10:00 a.m. in the Senate Russell Building, room 253.

    The Committee intends to examine information disclosure to consumers, allegations of hidden charges and fees, discrepancies in minutes marketed to customers and minutes received, alleged deceptive advertising practices, and efforts by the Federal Trade Commission to combat consumer abuse in this area.

    In addition, the Committee will consider S. 2998, the Prepaid Calling Card Consumer Protection Act of 2008, which was introduced by Sen. Bill Nelson (D-Fla.) and cosponsored by Committee Members Sens. John Kerry (D-Mass.) and Olympia Snowe (R-Maine).

    The bill may be accessed at http://thomas.loc.gov/cgi-bin/thomas.



    FCC Releases Report on the Status of the Digital Television Transition

    Some highlights:

    • 1,002 stations or 56% of active televisions stations have fully constructed their DTV facilities and are ready for the DTV transition;

    • 41% of active stations have not yet completed construction but are on schedule to do so;

    • 3% of active stations will initially only serve 85% of their service population with DTV service by February 17, 2009 with full DTV operations to commence at a later date. This flexibility was offered to stations with unique technical challenges;

    • 1 station reports it will meet the DTV transition deadline a few days late and will be dark for the few days between the deadline and initiating DTV operations.

    • 3 stations have not filed their DTV transition status form but unofficially report they will meet the DTV transition deadline.

    INDUSTRY CALENDAR

    September 3, 2008

    Reply Comment Deadline: AT&T's Compliance Plan for Forbearance Relief from Cost Assignment Rules

    September 4, 2008

    Comment Deadline: Petition for Reconsideration of Interim Cap on Universal Service Payments to Competitive Carriers (replies due September 15)

    September 5, 2008

    Reply Comment Deadline: Petitions for Reconsideration of Broadband Radio Service (BRS) and Educational Broadband Service (EBS) rules

    September 6, 2008

    Deadline for FCC Action on AT&T's Request for Forbearance from ARMIS Reporting Requirements for Local Affiliates

    September 8, 2008

    Congress returns from August recess

    Comment Deadline: Petitions for Reconsideration of the InterCall Order Confirming Audio Bridging Services Must Contribute Directly to the USF Fund (replies due September 22)

    Deadline for Commercial Mobile Service (CMS) providers to file an election with the FCC indicating whether or not they intend to transmit emergency alerts as part of the Commercial Mobile Alert System (CMAS)

    September 9, 2008

    Regional Planning Committee Meeting of Region 19 (New England): regarding 700 MHz and 4.9 GHz Public Safety in, Framingham, Mass

    Comment Deadline: Steps to Implement the NET 911 Improvement Act of 2008: E911 Service by VoIP Providers

    September 10, 2008

    Senate Commerce, Science and Transportation Committee hearing on “Improving Consumer Protection in the Prepaid Calling Card Market”

    Regional Planning Committee Meeting of Region 20 (Northern Virginia, Maryland and District of Columbia) regarding 700 MHz and 800 MHz in, Hanover, Md

    Freeze Lifted on New 17/24 GHz BSS Satellite Applications as of 10:00 AM EDT

    September 15, 2008

    Comment Deadline: Additional Steps to Establish The Commercial Mobile Alert System (replies due September 29)

    Reply Comment Deadline: Petition for Reconsideration of Interim Cap on Universal Service Payments to Competitive Carriers

    Comment Deadline: CTIA’s request for Clarification, Preemption of State and Local Review of Tower Siting Applications (replies due September 30)

    Reply Comment Deadline: Petition for Reconsideration of Interim Cap on Universal Service Payments to Competitive Carriers

    September 16, 2008

    Reply Comment Deadline: FCC Adopts Rules to Assign Traditional Ten-Digit Telephone Numbers to IP-based TRS Users

    September 17, 2008

    Reply Comment Deadline: Steps to Implement the NET 911 Improvement Act of 2008: E911 Service by VoIP Providers

    September 18, 2008

    Comment Deadline: Proposed Additions to Services Eligible for Support in the E-Rate Program in 2009 (replies due October 3)

    FCC, USDA Regional Broadband Workshop - Austin, Texas

    One of four educational workshops on rural broadband to be held during 2008 by the FCC and the US Department of Agriculture

    FCC Pandemic Preparedness Summit

    Summit on Pandemic Preparedness: Enhancing Communications Response for Health Care and First Responders, 9:00 a.m. - 1:15 p.m. at the FCC

    September 22, 2008

    Comment Deadline: FCC Actions on Broadband Radio Service (BRS) and Educational Broadband Service (EBS) Spectrum in the 2496-2590 MHz Band (replies due October 22)

    Reply Comment Deadline: Petitions for Reconsideration of the InterCall Order Confirming Audio Bridging Services Must Contribute Directly to the USF Fund

    September 23, 2008

    Regional Public Safety Planning Committee Meetings for Buffalo and Rochester, New York regarding 700 MHz and 800 MHz

    Regional Public Safety Planning Committee Meeting for Region 24 in Jefferson City, Missouri regarding 700 MHz and 800 MHz

    September 25, 2008

    FCC Annual Regulatory Fees due by 11:59 p.m.

    Regional Public Safety Planning Committee Meeting for Region 38 in Pierre, South Dakota regarding 700 MHz and 800 MHz

    Reply Comment Deadline: Two Petitions for Reconsideration of FCC Rules Assigning Traditional Ten-Digital Telephone Numbers to IP-Based TRS Users

    September 29, 2008

    Reply Comment Deadline: Proposed Rule Revisions for Speech-to-Speech Telecommunications Relay Service

    Reply Comment Deadline: Additional Steps to Establish the Commercial Mobile Alert System

    September 30, 2008

    Reply Comment Deadline: CTIA request for Clarification, Preemption of State and Local

    Review of Tower Siting Applications


    This information is not intended to constitute, and is not a substitute for, legal or other advice. You should consult appropriate counsel or other advisers, taking into account your relevant circumstances and issues. While not intended, this update may in part be construed as an advertisement under developing laws and rules.

    PATTON BOGGS LLP
    www.pattonboggs.com