Patton Boggs TechComm Industry Update - January 10, 2011

    10 January 2011

    The Federal Communications Commission Adopts Controversial Net Neutrality Rules

    At its December meeting, the Federal Communications Commission (FCC) adopted open Internet rules (also know as net neutrality rules) in order to “preserve the open Internet as a platform for innovation, investment, competition, and free expression.” The rules apply less restrictive requirements to mobile broadband networks than to fixed broadband networks. The FCC’s vote on the rules broke down along party lines with the two republican commissioners dissenting, questioning the FCC’s statutory authority, and arguing that if the new rules would hurt the broadband market.

    The FCC established the following three enforceable net neutrality provisions for fixed broadband Internet access service (which includes fixed wireless services and fixed satellite services, as well as wireline services):

    • Transparency: Providers must disclose their network management practices and the performance characteristics and commercial terms of their broadband services.
    • No Blocking: Subject to reasonable network management practices, providers may not block lawful content, applications, services or non-harmful devices.
    • No Unreasonable Discrimination: Providers may not “unreasonably” discriminate in transmitting lawful network traffic. Unreasonable discrimination does not include reasonable network management.
    • Reasonable Network Management: Network management is “reasonable” if it is appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service.

    With regard to mobile wireless broadband Internet access service, the FCC adopted the following requirements:

    • Transparency: Mobile broadband providers must comply with the same transparency rule as fixed broadband providers. Additionally, mobile providers must disclose their third party device and application certification procedures and clearly explain criteria for any restrictions on use of their networks.
    • No Blocking: Subject to reasonable network management practices, a mobile provider may not block access to lawful websites, and may not block applications that compete with the provider’s voice or video telephony services.

    Commercial agreements between a broadband provider and a third party to prioritize certain traffic over other traffic for certain broadband subscribers, i.e. pay for priority, would likely not satisfy the FCC’s “no unreasonable discrimination” rule. In addition, in the area of specialized or managed services, such as voice, subscription video, telemedicine, smart grid or eLearning, the FCC declined to impose net neutrality regulations at this time, but instead indicated it will continue to observe the market to ensure that consumers benefit from such services and those services do not undermine or threaten an open Internet.

    The FCC also adopted a mechanism for enforcing its net neutrality rules. Consumers can submit informal complaints regarding a provider’s network management practices to the FCC without a filing fee. After giving 10 days notice to the broadband provider, any person may file a formal complaint with the FCC, alleging a violation of the net neutrality rules. Complaints may be expedited under the Enforcement Bureau’s “Rocket Docket” procedures. The FCC also has the option of initiating investigations and enforcement actions on its own.

    The rules are effective 60 days after publication in the Federal Register of notice that the Office of Management and Budget has approved the information collection requirements contained in the rules. The FCC will review its net neutrality rules no later than two years from their effective date, and will make adjustments as appropriate.

    Congress Largely Opposes the FCC’s Net Neutrality Rules

    In the weeks leading up to the FCC’s December Open Meetings, both Republican and Democratic members of Congress expressed opposition to or concern about Chairman Julius Genachowski’s proposed net neutrality rules. After the FCC’s vote, members quickly announced oversight hearings would be scheduled.

    House Energy & Commerce Committee Chairman Fred Upton (R-MI), and Reps. Lee Terry (R-NE) and Marsha Blackburn (R-TN), announced plans for an oversight hearing calling on the chairman and commissioners to explain the FCC’s authority to adopt the new rules. At the same time, Upton pledged to work on a legislative solution to overturn the rules. The members assert that the FCC’s new rules overreach, impede job creation and hinder investment in broadband. Upton said that this would be “the first hearing out of the box,” with additional hearings in the coming weeks.

    In the Senate, Commerce Committee Chairman Jay Rockefeller (D-WV) supported the new rules, but noted that wireline broadband rules should apply equally to wireless providers. The Committee’s Ranking Member, Kay Bailey Hutchison (R-TX), intends to offer a resolution of disapproval on the FCC’s net neutrality order. A vote on such a resolution is not likely to occur until February.

    Upton and Communications and Technology Subcommittee Chairman Greg Walden (R-OR) also may investigate the procedure the chairman used to adopt the rules. There is concern that a final draft of the order was not available until 11:30 p.m. the night before the FCC Open Meeting, and that it contained substantive changes.

    Rep. Ed Markey (D-MA) supported the order and called it “a step forward,” but he offered that the order should have banned paid prioritization, and the new rules should have applied equally to wireless and wireless providers. Rep. Maxine Waters (D-CA) and Rep. Bobby Rush (D-IL) expressed concern that the FCC’s net neutrality rules are “insufficient and harmful” because they would create a mobile digital divide. They noted the rules do not apply equally to wireline and wireless broadband networks, and wireless broadband networks are more widely used by minorities. Mobile broadband networks are not subject to the FCC’s unreasonable discrimination rule.

    Comcast-NBCU Merger Update: January Completion Likely

    Throughout December 2010, rumors circulated in Washington that the U.S. Department of Justice (DOJ) and the FCC might complete their respective reviews of the Comcast-NBCU merger by the end of the year. On December 23, 2010, Chairman Genachowski placed an order on circulation providing the other commissioners four weeks to vote on the order before the FCC's January Open Meeting. It is expected that the FCC and DOJ will both announce their consent to the proposed merger in late January. Discussions of possible conditions on the merger are ongoing, and Comcast, NBCU, General Electric and other parties continue to meet with FCC and DOJ officials to discuss online video, program access, set-top-box and other issues. It is believed that the reviewing agencies will impose conditions on the merger designed to ensure fair competitive access to the vast array of programming that will be owned by the merged entity for all forms of distribution, particularly online.

    The Patton Boggs TechComm Group has been involved in the merger, representing a number of interested and concerned parties.

    Level 3 Claims Comcast Violates Net Neutrality

    The net neutrality rules approved by the FCC may get an early test as the agency reviews allegations raised by Level 3 Communications Inc. (Level 3) claiming that Comcast violated existing net neutrality principles by demanding greater compensation for increases in video traffic. Level 3, which provides Internet distribution services to Netflix, accused Comcast of violating the then-existing net neutrality principles by charging “tolls” to deliver movies and TV shows via the Comcast broadband system. The Level 3 claim has generated significant industry interest and the FCC has been hearing from all sides. Recently, Level 3 wrote to Chairman Genachowski and Christine Varney at the DOJ urging the regulators to impose conditions on the Comcast-NBCU merger that will assure consumers access to all forms of content on the Internet without discriminatory fees. Comcast’s network interconnection fees “have much broader policy implications,” wrote Level 3 CEO James Crowe, “significantly impacting competition in the delivery of all video programming and the future of the Internet.”

    Comcast asserts that its Level 3 pricing terms are appropriate for a paid “peering” relationship, and that such agreements have been around for many years and are standard industry practice. Level 3 rejects this explanation.

    FCC To Release Retransmission Consent NPRM

    In a recent speech, Bill Lake, Chief of the FCC’s Media Bureau, announced that the agency will release a Notice of Proposed Rulemaking (NPRM) regarding retransmission consent that will explore additional actions the FCC may undertake to prevent consumers from losing access to programming while cable companies and broadcast station owners negotiate retransmission consent agreements. The NPRM will raise several issues, including whether the FCC should clarify what are good faith negotiations and per se violations, and impose greater specificity regarding the meaning and scope of the FCC’s “totality of the circumstances” test. The FCC will also review any broadcast rules that may interfere with retransmission consent negotiations.

    By releasing an NPRM instead of a Notice of Inquiry (NOI), the FCC will be in a better position to adopt rules quickly should further disputes arise between broadcasters and pay television providers that threaten consumers’ ability to view broadcast stations over their cable or satellite services. The NPRM is scheduled to be circulated to the chairman and commissioners for a vote in the first quarter of 2011.

    In October 2010, Senate Communications Subcommittee Chairman John Kerry (D-MA) drafted a bill regarding retransmission disputes that includes fines for bad faith negotiations, permits standstill agreements and allows the FCC to mediate, but not arbitrate, complaints. Sen. Kerry also held a hearing, but has since announced that he will not introduce his legislation at this time because the FCC is taking action on these issues.

    FCC Adopts Rulemaking to Allow Wireless Broadband Providers Access to Television Spectrum Using Voluntary Auctions

    To increase effective spectrum use, the National Broadband Plan proposed making 120 MHz of television broadcast spectrum available to broadband service providers through the use of voluntary broadcast spectrum auctions. To further this goal, the FCC has proposed a rulemaking and seeks comment on the following proposals:

    • Establishing new allocations for both fixed and mobile wireless services in the TV broadcast bands;
    • Enabling TV stations to voluntarily combine their operations and distinct programming lineups on a single TV channel;
    • Enabling TV broadcasters to opt to share channels by further tapping the technical capabilities that became available following the nation’s historic transition to digital television in 2009; and
    • Improving TV reception on the VHF channels (2-13), such as by increasing transmitting power and establishing minimum performance standards for indoor antennas.

    Comments and reply comments are due 45 and 75 days, respectively, after publication of the Notice of Proposed Rulemaking in the Federal Register, which has yet to occur.

    FCC Continues to Evaluate the Environmental Effects of Towers and Antennas

    Owners and operators of wireless towers and wireless antennas should pay attention to recent developments regarding the FCC’s Antenna Structure Registration (ASR) Program. Involvement by tower owners may be needed in an effort to streamline the process of getting approvals from local jurisdictions for collocation applications.

    Pursuant to the ASR Program, antenna structures must be registered with the FCC by their owners. Under the FCC’s current ASR rules, owners of antenna structures that are taller than 200 feet above ground level, or that may interfere with the flight path of a nearby airport, must register those structures with the FCC after receiving an FAA No Hazard determination. ASR does not replace the FAA notification requirement. For antenna structures that require registration with the FCC, agency staff will not issue a construction authorization to an applicant until the antenna structure is registered with the FCC and receives a No Hazard determination from the FAA.

    The FCC is conducting a Programmatic Environmental Assessment (PEA) to identify environmental effects of the ASR program. The Environmental Assessment is being undertaken in response to a remand from the U.S. Court of Appeals for the D.C. Circuit in American Bird Conservancy v. FCC, where the Court determined that towers may have a significant environmental effect on migratory birds. The FCC also will evaluate alternatives and determine whether a more extensive analysis may be required under the National Environmental Protection Act (NEPA) before certain towers and antenna structures may be deployed.

    Environmental assessments are already required today as part of the process for obtaining a construction permit. The FCC must review the following factors in evaluating environmental compliance before towers are erected:

    • will the tower be located in an officially designated wilderness area or wildlife preserve;
    • will the tower impact endangered species or critical habitats; will it affect historical structures;
    • will the tower impact Indian religious sites; will it be located in a residential neighborhood, flood plain or near wetlands; and
    • will the tower cause human exposure to radiofrequency radiation in excess of commission guidelines.

    Tower and antenna structure applicants must include this environmental assessment as part of their application paperwork. Any changes to the FCC’s ASR rules, as the FCC is currently contemplating, that incorporate more extensive environmental analysis prior to registering a tower or antenna structure with the FCC will likely cause a delay in tower/antenna deployment and increase registration costs. Interested parties should contact us and file written comments by January 14, 2011.

    In addition to the federal requirements, before a tower is deployed or new equipment is attached to existing structures, wireless operators must generally obtain state and local zoning approvals. Despite a Congressional requirement that state and local zoning authorities act within “a reasonable period of time,” there have been persistent industry complaints that local authorities often take months and even years to act, even on routine applications. In response to industry complaints, combined with a desire to facilitate the deployment of wireless broadband networks, the FCC issued an order at the end of 2009 interpreting a “reasonable period of time” as a “shot clock” on local jurisdictions to make a decision within 90 days for collocations, and 150 days for new towers. If a jurisdiction fails to act on the application within the applicable time period, applicants may file a claim for relief in court. Industry proposed that a local jurisdiction’s failure to act within the shot clock timeframe should result in a “deemed granted” ruling, particularly in the case of collocation requests, but the FCC rejected this argument, stating that it is important for courts to consider the individual facts of every case. This aspect of the FCC’s rules may be challenged by tower owners in a further petition for rulemaking. The FCC's "shot clock" order is being challenged by municipalities in the U.S. Court of Appeals for the Fifth Circuit.

    FCC Proposes New Experimental Licenses 

    In a rulemaking, the FCC has proposed new types of experimental licenses called “program licenses.” The agency proposed three new program licenses that would remove the need for a qualified entity to seek separate licensing for each experiment. Program licenses are proposed in three categories:

    • Research license: This license would allow universities, laboratories, and other qualified research institutions to conduct experiments over a wide variety of frequencies and other operating parameters.
    • Innovation Zone license: The FCC would identify discrete geographic areas, in relatively remote locations, where researchers can conduct a wide range of experiments.
    • Medical license: This license would allow medical institutions to innovate and develop new devices that can save lives, reduce medical costs for consumers and provide new treatment options for wounded service men and women.

    The FCC also proposed ways to streamline and clarify its experimental licensing rules. The proposed changes would expand opportunities for researchers and manufacturers to conduct market trials as part of product development. Comments and reply comments are due 30 and 60 days, respectively, after publication of the Notice of Proposed Rulemaking in the Federal Register, which has yet to occur.

    In a separate Notice of Inquiry, the FCC seeks comment on how to promote wireless innovation and more intensive and efficient use of spectrum using smart radios and techniques. Comment is also sought on how to advance these technologies and whether creating test-beds or modifying spectrum management practices and policies would be beneficial. Comments are due in response to this Notice of Inquiry by February 28, 2011, and reply comments by March 28, 2011.

    Rep. Upton Announces House Energy and Commerce Subcommittee Assignments

    Fred Upton (R-MI), chairman of the House Energy and Commerce Committee, announced the members that will lead his six subcommittees in the 112th Congress. Although three members had been vying to chair the Communications and Technology Subcommittee, Rep. Greg Walden (R-OR), a former broadcaster, will assume that chairmanship, with Rep. Lee Terry (R-NE) stepping in as vice chair.

    Rep. Cliff Stearns (R-FL) will serve as chairman of the Oversight and Investigations Subcommittee. Rep. John Shimkus (R-IL), will take the gavel at the Subcommittee on Environment and Economy and Rep. Tim Murphy (R-PA) will serve as his vice chair. The Environment and Economy subcommittee is new and was created by splitting the current Energy and Environment Subcommittee jurisdiction into two entities. The other new subcommittee, Energy and Power, will have jurisdiction over energy and Clean Air Act issues, and will be chaired by Rep. Ed Whitfield (R-KY), with Rep. John Sullivan (R-OK) serving as vice chair. Rep. Sue Myrick (R-NC) will serve as Chairman Upton’s vice chair on the Energy and Commerce Committee, while Rep. Joe Barton (R-TX) will serve as the Energy and Commerce Committee’s chairman emeritus.

    In addition to Rep. Walden, Chairman Upton unveiled 12 other GOP additions to the House Energy and Commerce Committee: Reps. Charles Bass (NH), Brian Bilbray (CA), Bill Cassidy (LA), Brett Guthrie (KY), Gregg Harper (MI), Pete Olson (TX), Cathy M. Rodgers (WA), Cory Gardner (CO), Morgan Griffith (VA), Adam Kinzinger (IL), David McKinley (WV) and Mike Pompeo (KA).

    Neil Fried will serve as chief counsel for the Communications and Technology subcommittee. Fried has worked with the Energy and Commerce Committee since 2003 and was involved in the 2005 digital television transition legislation and congressional oversight of the 2009 digital transition date. Prior to joining the committee, he spent time in private practice, specializing in television and telecommunications issues and working for the FCC implementing the Telecommunications Act of 1996.

    Ray Baum joins the Communications and Technology subcommittee staff as senior policy advisor. Baum is a native of Oregon and is the current chairman of the Oregon Public Utility Commission. He also chaired the Oregon Broadband Advisory Council, served as a member of the Board of Directors of the NARUC (National Association of Regulatory Utility Commissioners) and is state chair of the Federal–State Joint Board on Universal Service.

    President Signs Tax Deal

    President Obama recently signed the most significant tax bill in nearly a decade. The legislation maintained provisions that will be very beneficial for communications and technology companies. The bill allows companies to write off 100 percent of investments in business equipment they put into service between September 8, 2010 and December 31, 2011, and an extra 50 percent in 2012. This relief will help companies with high levels of capital expenditures, such as network providers. The bill also extended a lapsed research and development tax credit for two years, and extended special expensing rules for U.S. movie and TV productions.

    Rep. Markey To Introduce Children’s Privacy Legislation

    Congressman Ed Markey (D-MA), a leading privacy proponent, said he intends to introduce legislation next year that would allow parents and children to opt out of being tracked on the Internet. The measure would allow parents to control the information web providers may collect about underage children. Rep. Markey authored the Children’s Online Privacy Protection Act (COPPA) in 1998, which consumer groups say is outmoded in view of smart phones with location tracking and other applications that collect personal information. The Federal Trade Commission (FTC) is also reviewing COPPA, and members of the Senate Commerce Committee have indicated that they plan to work on an update.

    President Signs Online Privacy Legislation

    President Obama recently signed legislation that will require online companies to secure consumers’ consent before they are enrolled in services. The Restore Online Shoppers’ Confidence Act essentially applies the informed consent provision of the FTC’s telemarketing sales rules to the Internet. 

    U.S. Department of Commerce Issues a Privacy Green Paper

    The U.S. Department of Commerce recently issued a “Green Paper” entitled “Commercial Data Privacy and Innovation in the Internet Economy: A Dynamic Policy Framework.” The paper was prepared by the department’s Internet Policy Taskforce and recommends the consideration of a new framework for addressing online privacy issues in the United States. The report calls upon government and business to work together in order to deal with internet privacy issues from a global perspective. A summary of the paper is available here. Comments are due by January 28, 2011.

    FTC Releases Draft Privacy Report

    The FTC recently issued its draft staff privacy report, “Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Businesses and Policymakers.” While only a “preliminary staff report,” this 122-page report evidences the FTC staff’s current views on best practices in the privacy area, especially as they relate to online privacy and the use of consumer data.

    The FTC staff seeks comments on core issues raised by the draft report, including the feasibility of a “Do Not Track” mechanism for online consumer behavior (such as searching, purchases and browsing behavior), how to balance the needs of businesses and the privacy interests of consumers. Comments may be submitted through January 31, 2011; a final report is expected late in 2011.

    FCC Seeks Comment on Expanding Auction Bidding Credits

    The FCC has issued a Public Notice seeking comment on whether to issue a Notice of Proposed Rulemaking (NPRM) to investigate a new preference program allowing spectrum auction bidding credits for entities or persons who have overcome substantial disadvantage. Preference programs provide qualifying bidders with credits that reduce payments made by those bidders for spectrum purchased in an auction. Comment is sought on how such a preference program would expand the pool of designated entities that would not otherwise qualify for existing bidding preferences. Comment also is sought on how the Commission should address constitutional issues and eligibility requirements. Comments are due by February 7, 2011, and reply comments are due by February 25, 2011.

    Renewed FCC Focus on Accessibility

    During a recent FCC Open Meeting, the commissioners were presented with an outline and schedule of how the agency will implement the 21st Century Communications and Video Accessibility Act (Accessibility Act). The Accessibility Act updates federal disability protections to include new technologies such as broadband, digital and mobile innovations, and requires a range of accessibility mandates. For example, the Accessibility Act requires advanced telecommunications services and related equipment and software to be accessible, including interconnected VoIP service, electronic messaging, interoperable video conferencing and Internet browsers on mobile devices. It also applies hearing aid compatibility mandates to advanced communications devices. For video programming, the Accessibility Act reinstates and updates the FCC’s video description rules, and requires closed captioning on Internet programs that have already been shown on television with captions. It also requires video programming devices to be more accessible.

    The FCC released several public notices regarding accessibility in 2010, and will adopt more than 10 accessibility orders over the next three years. In 2011-12 alone, the FCC proposes to adopt new rules regarding deaf and blind equipment distribution, accessible advanced communications equipment and services, hearing aid compatibility for advanced communications, relay services reform, video description rules, Internet captioning of television programming and closed captioning on video devices. The FCC staff is well underway in drafting notices of proposed rulemaking. Interested parties should get involved now to help shape the rulemaking notices, which are expected to be released in the first quarter of 2011. Please contact us for additional information and suggestions on how to participate in the rulemaking process.

    The United States Trade Representative Requests Comments on Telecommunications Trade Agreements

    The U.S. Trade Representative (USTR) is conducting its annual review of telecommunication trade agreements between the U.S. and other nations. The report is scheduled to be completed by March 31, 2011. The review process includes a public comment period during which interested parties may submit comments regarding whether other countries that are parties to telecommunication trade agreements with the U.S. have complied with their obligations. Reply comments are due by January 14, 2011.

    The following issues are available for comment:

    • whether any WTO member is acting in a manner that is inconsistent with its obligations under WTO agreements affecting market opportunities for telecommunications products or services;
    • whether Canada or Mexico have failed to comply with their telecommunications obligations under NAFTA;
    • whether Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras or Nicaragua have failed to comply with their telecommunications obligations under CAFTA-DR;
    • whether Australia, Bahrain, Chile, Morocco, Oman, Peru or Singapore have failed to comply with their telecommunications obligations under the Foreign Trade Agreement (FTA) with the U.S.;
    • whether any country has failed to comply with its obligations under telecommunications trade agreements with the U.S., other than FTAs;
    • whether any act, policy or practice of a country cited in a previous section 1377 review remains unresolved; and
    • whether any measures or practices impede access to telecommunications markets or otherwise deny telecommunications products and services market opportunities with respect to any country that is a WTO member, or for which an FTA or telecommunications trade agreement has entered into force between such country and the U.S.


    FCC Releases Updated FCC Forms 470 and 471 and Announces FY2011 Filing Window for the Schools and Libraries Program

    Due to recent changes adopted by the FCC for the Schools and Libraries (E-rate) Program, the agency updated Forms 470 and 471. OMB approval was received for both forms. USAC is performing maintenance on its website beginning Friday, January 7, 2011 at 6:00 pm EST, through Sunday, January 9, 2011, to prepare for FY2011 and to post the new Forms 470 and 471. The FCC clarified that only the November 2010 version of FCC Form 471 will be accepted for filing, and once the November 2010 version of FCC Form 470 is posted on USAC’s website, previous versions will no longer be accepted. The FY2011 FCC Form 471 application filing window will open at noon EST on Tuesday, January 11, 2011, and will close at 11:59 pm EDT on Thursday, March 24, 2011.

    Additional filing guidance is expected from the FCC once the new Forms 470 and 471 are available on USAC’s website. USAC recommends completing and certifying any in-progress Form 470s before the maintenance begins. After the maintenance and the posting of the new Form 470, applicants trying to certify an old version of Form 470 will be required to provide USAC with the additional information requested in the new Form 470 before the applicant’s certification will be accepted.

    The new FCC Forms 470 and 471 now require applicants to disclose information about their E-rate consultants. An E-rate consultant filed a petition with the FCC seeking clarification of the definition of consultant. The petitioner also requested that consultant information disclosed on the forms be kept confidential and from public disclosure. Reply comments are due by January 7, 2011. Please contact us for more information.

    FCC Clarifies E-rate Gift Rules

    In a recent order, the FCC clarified the new gift rules for the E-rate program that it adopted last fall. The gift rules prohibit E-rate applicants from soliciting or accepting gifts, and service providers from offering or providing gifts. The rules include exceptions for gifts of modest refreshments not offered as part of a meal, items with little intrinsic value intended solely for presentation, items worth $20 or less, gifts to family members or friends, and certain charitable donations. The new rules are meant to be consistent with gift rules applicable to federal agencies.

    In a clarifying order, the FCC answered a number of questions raised by E-rate participants regarding how to interpret the FCC’s new gift rules, including questions related to charitable donations, events, representation on boards and timing. For example, the order clarified that an eligible applicant applying for E-rate funding for the first time, or for a new category of service, must be in compliance with the E-rate gift rules for the service they will seek beginning at least six months prior to the posting of its FCC Form 470. The FCC also indicated that it will take into consideration the exceptions to the federal agency gift rules when determining whether there has been a violation of the E-rate gift rules, and provided examples of the types of donations that qualify for the charitable donations exception. The gift rules are complex. If you have questions about how the E-rate gift rules work, please contact us.

    Rural Health Care Pilot Program Recent Developments and Proposals Released

    Rural Healthcare Pilot Program (Program) participants currently face a June 30, 2011, deadline to submit RFPs or risk losing awarded funds. One grantee, the Indiana Telehealth Network, has requested an additional year (to June 30, 2012) to submit its funding proposal, perhaps reflecting the difficulty participants face in this economic environment to secure matching funds and operating capital. Reply comments on that extension request are due by January 17, 2011. Many Program participants are similarly situated and the Patton Boggs TechComm team is working to examine options for relief.

    To date, 48 of the 68 Program participants whose funding requests were approved have published RFPs on the Universal Service Administrative Company’s (USAC) website, seeking vendors and service providers to assist them in building broadband networks to support rural health care. Of the RFPs, the ones listed below were most recently posted to USAC’s website. Participants must wait at least 28 days before entering a contract with a vendor. Please contact us if you require more information about any of these RFPs.      



    Date Posted

    Allowable Contract Date

    Health Information Exchange of Montana (RFP #5)




    Western New York Rural Area Health Education Center (RFP #2)




    Oregon Health Network (RFP #9)




    Iowa Rural Health Telecommunications Program (RFP #3)

    IA, NE, SD



    Southwest Telehealth Access Grid (RFP #4)

    NM, CO, TX, AZ, CA, NV, UT



    Illinois Rural HealthNet Consortium (RFP #7)




    California Telehealth Network (RFP #3)




    White House to Reform Federal IT Practices

    The White House released a 25-point plan to reform federal IT efficiency, effectiveness and service delivery. The plan includes a move to a “Cloud First,” or Internet-based, IT solution that must be used if a secure, reliable and cost-effective cloud-based solution is available. Agency Chief Information Officers (CIO) will be required to identify three “must move” services, and create a plan for migrating them to a cloud solution. One of these services must be migrated within 12 months and the other two must be migrated within 18 months. In addition, within six months, the federal CIO is to release a strategy for accelerating the adoption of cloud computing.

    Commissioner Copps Proposes Diversity Regulations in News Programming, Draws Criticism

    FCC Commissioner Michael Copps recently suggested that broadcasters should be subject to a new “public values test” every four years. Such a test, Copps proposed, would make a broadcaster’s license renewal contingent upon proof that they meet certain criteria.

    According to Copps, broadcasters should be mandated to do the following: prove they have made a meaningful commitment to public affairs and news programming; prove they are committed to diversity programming by, for instance, showing that they depict women and minorities; report more to the government about which shows they plan to air; provide greater disclosure about who funds political ads; and devote 25 percent of their prime-time coverage to local news. The regulations would apply to all news outlets operating on the public airwaves.

    At least one lawmaker criticized the plan. Rep. Joe Barton (R-TX) wrote to Copps, noting that the federal government should not be in the business of mandating broadcast content. Rep. Barton’s letter questioned whether Copps believes the government should reinstate the defunct Fairness Doctrine, a standard that required broadcast licensees to offer balanced coverage. Commissioner Copps responded that he did no favor reinstatement of the Fairness Doctrine.

    Qualified Entity Sirius-XM Application Procedures

    As we previously reported, the FCC updated the definition of Qualified Entities that will be eligible to lease Sirius-XM channels, but the FCC did not identify how interested parties can apply. The lease application procedures are now available on the Sirius-XM website, including the specific information required to be submitted and the application evaluation criteria that will be used to review lease applications. Applications are due by January 7, 2011. Tentative selections will be announced on March 2, 2011 and lease agreements will be signed by April 17, 2011.

    Smart Phone Battles

    Apple and Nokia are headed to the International Trade Commission to argue intellectual property violations. Apple’s iPhone is manufactured abroad and is trying to stop the importation of Nokia phones that employ Google’s Android operating system, one of iPhone’s biggest competitors. Nokia also sued Apple over a number of products, including the iPad. Apple has a pending lawsuit against Motorola alleging that nine Motorola phones use Apple’s multitouch technology without Apple’s permission.

    FCC Implements Satellite Television Extension and Localism Act (STELA)

    The FCC recently released three orders and a public notice to implement STELA. One order increases flexibility and choice for satellite subscribers to receive televisions stations from nearby markets. The other orders update the FCC’s procedures for how subscribers may qualify to receive satellite-delivered distant television stations if they are unable to receive their local television stations.

    A public notice requests comment on the metrics and data the FCC should incorporate into a required report to Congress on the availability of in-state broadcast stations. The report must contain: (1) the number of households in a state that receive the signals of local broadcast stations assigned to a community of license that is located in a different state; (2) the extent to which consumers in each local market have access to in-state broadcast programming over the air or from a multichannel video programming distributor; and (3) whether there are alternatives to the use of designated market areas, as defined in Section 122 of Title 17, United States Code, to define local markets that would provide more consumers with in-state broadcast programming.

    Comments are due by January 24, 2011 and reply comments are due by February 22, 2011. Please contact us for additional details or if you are interested in filing comments.

    FERC Smart Grid Technical Conference Announced

    The Federal Energy Regulatory Commission (FERC) announced that it will hold a public Technical Conference on Monday, January 31, 2011, at its headquarters in furtherance of its Smart Grid Interoperability Standards. The technical conference seeks to obtain additional information to aid FERC’s determination of whether there is “sufficient consensus” that the National Institute of Standards and Technology’s five foundational standards are ready for FERC consideration in a rulemaking proceeding. A conference agenda will be released by FERC in a subsequent notice. Please let us know if you are interested in participating in the conference.

    President Signs Truth in Caller ID Act of 2009

    The President signed into law the Truth in Caller ID Act of 2009 (Act) shortly before the end of 2010, which amends the Communications Act of 1934 to ban the manipulation of caller identification (Caller ID) information. The Act prohibits anyone in the U.S. from interfering with a telecommunications service or VoIP service to cause misleading or inaccurate Caller ID information to be transmitted with the intent to defraud, cause harm or wrongfully obtain something of value. The Act includes an exception for law enforcement activities and any court order authorizing Caller ID manipulation. It also includes civil and criminal penalties that may be enforced by states after consulting with the FCC.

    U.S. Supreme Court to Review Interconnection Rate Decision Issued by the U.S. Court of Appeals for the Sixth Circuit

    The U.S. Supreme Court agreed to hear the cases Talk America v. Michigan Bell (Dkt. No. 10-313) and Isiogu v. Michigan Bell (Dkt. No. 10-329). The issues in both cases are whether (1) incumbent local telephone companies (LECs) pursuant to the Telecommunications Act of 1996 and the FCC’s 2005 Triennial Review Report and Order are required to make entrance facilities (not interconnection facilities) available to competing carriers at government-regulated at-cost rates, or if LECs may charge higher market rates and (2) if the lower court provided the appropriate level of deference to the FCC’s interpretation of its rules.

    Michigan Bell, a subsidiary of AT&T, argues that the FCC’s Triennial Review Report and Order provides a mechanism for charging market rates for entrance facilities rather than government-regulated at-cost rates. Some competing carriers, including Talk America, complained to the Michigan Public Service Commission (MPSC) about the market rates for entrance facilities and the MPSC ruled that the entrance facilities should continue to be available to competing carriers at the lower government-regulated rates. Michigan Bell challenged the ruling in federal court and won, and the lower court ruling was affirmed by the U.S. Court of Appeals for the Sixth Circuit. Interestingly, the Sixth Circuit’s decision is contrary to the interpretation of the FCC's own rules and orders set forth in the FCC's amicus brief, and creates a conflict with opinions issued by the U.S. Court of Appeals for the Seventh, Eighth and Ninth Circuits.

    The FCC participated in the lower court proceedings as an amicus curiae and supported the arguments raised by the competing carriers. It has not yet filed an appearance in either case at the Supreme Court, but that may change now that the cases are moving forward.

    President Signs CALM Act

    The President signed into law the Commercial Advertisement Loudness Mitigation (CALM) Act, which directs the FCC within one year to adopt rules to prevent commercials from being broadcast at a higher volume than the corresponding program material. The new rules are to be effective one year after they are adopted.

    The CALM Act states that any television broadcast station, cable operator or other multichannel programming distributor, which installs, uses and maintains the requisite equipment and software in compliance with the FCC’s commercial advertisement rules to control loudness, will be deemed to be in compliance with the such rules. The FCC may grant a one year waiver of its commercial advertisement loudness rules and a one year extension of the waiver to any television broadcast station, cable operator, or other multichannel video programming distributor, which demonstrates that purchasing the equipment and software needed to comply with the FCC’s commercial advertisement loudness rules would result in financial hardship.

    FCC to Adopt Public Safety Interoperability Rules at Its January Open Meeting

    The FCC scheduled its next Open Meeting for Tuesday, January 25, 2011. The following items are on the tentative agenda:

    • Interoperability Order and FNPRM: An Order and Further Notice of Proposed Rulemaking to ensure that the public safety broadband network is interoperable nationwide
    • Data Innovation Initiative Presentation: A presentation on the status of the comprehensive reform efforts to improve the FCC’s fact-based, data-driven decision-making.


    FCC Seeks Comment on Revolutionizing America’s 911 Services

    In response to recommendations in the National Broadband Plan, the FCC released a Notice of Inquiry (NOI) seeking comment on how to transition the country’s 911 system from a network that uses traditional voice-centric devices to a Next Generation 911 (NG911) system that utilizes advanced communications technologies. The FCC envisions an emergency communications system with which consumers can send videos, photos, and text messages to first responders.

    The FCC seeks to better understand NG911, including its applications and architecture, and how to further the country’s transition to advanced emergency communications services. For example, the FCC raises questions about mechanisms for transporting digital content across NG911 networks and other potential technical and operational challenges. The FCC also requests comment on consumer privacy issues, consumer education and awareness, and the proper role of federal, state, local and tribal governments in facilitating the NG911 transition. Comments and reply comments are due 45 and 60 days, respectively, after publication of the NOI in the Federal Register, which has yet to occur.

    FCC Extends Deadline for Broadcasters and Other Emergency Alert System Participants to Comply with Next Generation Emergency Alerts and Warnings

    In 2007, the FCC required all Emergency Alert System (EAS) participants to be able to receive Common Alerting Protocol (CAP)-formatted EAS messages within 180 days of FEMA’s adoption of a CAP standard. The FCC extended the implementation deadline for the receipt of CAP-formatted EAS messages from March 29, 2011 to September 30, 2011 in order to provide participants with additional time to develop, test and certify new EAS CAP-compliant equipment, and due to the costs associated with the purchasing of new CAP-compliant equipment.


    If you have any questions about the foregoing or if you require additional information, please contact:


    Carly T. Didden

    Jennifer A. Cetta

    Ryan W. King

    Monica S. Desai

    Mark C. Ellison

    Matthew B. Berry