Patton Boggs TechComm Industry Update - May 20, 2011

    20 May 2011

    FCC Annual Video Competition Assessment

    The Federal Communications Commission (FCC or Commission), in a Notice of Inquiry issued a second time, requested information and data for its “Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming.” Comments were originally solicited in 2009. For the first time in the more than 14-year history of this video assessment, the FCC is seeking information and data regarding online video distribution (OVD).

    The report’s new analytic framework will categorize entities that deliver video programming into one of three groups: MVPDs, broadcast television stations and OVDs. The FCC will then examine industry structure, conduct and performance, considering factors such as:

    • Structure: The number and size of firms in each group, horizontal and vertical integration, merger and acquisition activity, and conditions affecting entry and the ability to compete.
    • Conduct: The business models and competitive strategies used by firms that directly compete as video programming distributors, including product differentiation, advertising and marketing, and pricing.
    • Performance: The quantity and picture quality of programming, prices charged for delivered video programming, financial indicators (e.g., revenue and profit margins), and investment and innovation activities.

    The report will look upstream and downstream to examine the influence of industry inputs and consumer behavior on the delivery of video programming. The FCC expects to discuss three key upstream industry inputs: video content creators, video content aggregators and consumer premises equipment.

    Comments are due by June 8, 2011. This proceeding affords an excellent opportunity for video distributors to provide the FCC with any concerns they may have regarding distribution.

    Washington Focuses on Usage Caps

    Earlier this month, AT&T implemented broadband data caps for its DSL and U-Verse broadband service. DSL customers are limited to 150 gigabytes of usage a month (about three hours of online video watching per day) and U-Verse customers are limited to 250 gigabytes per month. A $10 fee will be charged for every 50 gigabytes used in excess of the caps. In comparison, Comcast implemented a 250 gigabytes broadband cap in 2008 but in lieu of overage fees, issues warnings to customers and eventually terminates their service.

    In a letter to the FCC, Public Knowledge and the New America Foundation’s Open Technology Initiative urge the Commission to investigate the impact of AT&T’s broadband caps on consumers. The letter alleges that the caps are contrary to the FCC’s efforts to expand the availability of broadband, the caps are very aggressive, and now more than half of U.S. broadband subscribers are subject to a broadband cap. They asked the FCC to investigate if the data used to access AT&T’s own content is counted against the cap. If not, then AT&T may be treating its own data traffic differently than that of over-the-top services, such as Skype and Netflix. The letter suggests the FCC should impose quarterly reporting requirements on AT&T and other broadband providers that use caps to provide the Commission with data on how the caps are working and the impact of the caps on consumers.

    In April, a few weeks after AT&T announced its intention to implement broadband caps, Netflix CEO Reed Hasting sent a letter to House Republicans urging them not to use the Congressional Review Act to vacate the FCC’s Open Internet order and to adopt comprehensive legislation to provide a structure for media and communications platforms. Nextflix supports open access to the Internet and the FCC’s Open Internet order. However, the order focused on “fair play within an ISP’s network” rather than entry into an ISP’s network. Netflix prefers unlimited usage up to a large cap and objects to carriers charging content providers to gain access to regional interchange points in order to carry traffic to the consumer. Netflix reports the last mile carriage costs for a gigabyte are less than a penny and falling.

    FCC Streamlines Its Pole Attachment Rules

    To improve access to infrastructure, the FCC streamlined its pole attachment rules to promote competition and to reduce the cost of deploying telecommunications, cable and broadband networks. The FCC also revised its rate structure and adopted rules to permit incumbent local exchange carriers (ILECs) to file rate complaints with the FCC. The new rules:

    • Set a maximum timeframe of 148 days for utility companies to allow pole attachments in the communications space, with a maximum of 178 days allowed for attachments of wireless antennas on pole tops, and an extra 60 days for large orders;
    • Set the rate for attachments by telecommunications companies at or near the rate paid by cable companies;
    • Confirm that wireless providers are entitled to the same rate as other telecommunications carriers;
    • Allow ILECs, which are not covered by the rate schedule, to file complaints with the FCC for relief from unreasonable rates, terms and conditions;
    • Clarify that the denial by a utility of a request for attachment must explain the specific capacity, safety, reliability or engineering concern;
    • Encourage negotiated resolution of disputes and pre-planning and coordination between pole owners and attachers, which will be taken into account in any enforcement action; and
    • Remove the cap on penalties for unauthorized attachments.

    The new rules are effective on June 8, 2011.

    Leahy Drops ECPA Reform Bill

    Senate Judiciary Chairman Patrick Leahy (D-VT) on May 17, 2011 introduced legislation to revamp the Electronic Communications Privacy Act (ECPA) that would require the government to secure a warrant before gaining access to a person's e-mail, digital communications or geolocation information.

    Leahy has argued that the 1986 law he helped author has failed to keep pace with advances in digital communications. The law's protections, for example, are targeted at networks and computing resources that are physically accessible, whereas data today is stored and accessed remotely more than ever.

    The ECPA Amendments Act of 2011 would prohibit wireless and remote services providers from voluntarily disclosing contents of user's e-mail or other electronic communications to the government. The legislation would require the government to obtain a search warrant based on probable cause to access all e-mails, digital messages, remotely stored and geolocation data. The bill also would require the government to notify the person whose account was disclosed within three days and provide the individual with a copy of the warrant. However, law enforcement would be permitted to seek a court order to delay notice for up to 90 days should the disclosure threaten an investigation or national security.

    Improving Access to Rights of Way and Wireless Facilities Siting

    The FCC released a Notice of Inquiry seeking suggestions on how it can work with stakeholders to remove unnecessary boundaries in gaining access to rights of way and siting wireless facilities. Specifically, the FCC seeks information regarding best and worst practices, dispute mediation and education, and if FCC rules or guidelines are needed.

    Comments are due by July 18, 2011, and reply comments are due by August 30, 2011.

    Rural Health Care Pilot Program Recent Developments and Proposals Released

    In response to several extension requests, the FCC issued an Order extending the deadline for Rural Health Care Pilot Program (RHCP) participants to choose a vendor and request funding commitments from the Universal Service Administrative Company (USAC) by one year to June 30, 2012. Only those RHCP participants who have received at least one funding commitment letter or filed a completed Form 466-A packet with USAC by June 30, 2011, are eligible for the extension of time. If these conditions are not met for a particular RHCP project, it will be deemed “no longer capable of continuing in the Pilot Program.” The FCC also extended by one year the invoice deadline for RHCP participants.

    At the time of the Order, 41 projects (or 66 percent) have received at least one funding commitment letter from USAC. RHCP participants whose funding requests were approved have published RFPs on the 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. Patton Boggs is currently working with a group of telecommunications vendors to establish the Rural Health Technology Association, a nonprofit whose goal is to promote rural telehealth and assist RHCP participants in the Pilot Program.



    Date Posted

    Allowable Contract Date

    Indiana Telehealth Network (RFP #1)




    Palmetto State Providers Network (RFP #1)




    Pacific Broadband Telehealth Demonstration Project (RFP #8)

    HI, AS, GU



    Arizona Rural Community Health Information Exchange (RFP #2)




    Pacific Broadband Telehealth Demonstration Project (RFP #7)

    HI, AS, GU



    Southwest Telehealth Access Grid (RFP #7)

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



    Virginia Acute Stroke Telehealth Project (RFP#1)




    Illinois Rural HealthNet Consortium (RFP #8)




    Texas Health Information Network Collaborative (RFP #1)




    Health Information Exchange of Montana (RFP #6)




    Pacific Broadband Telehealth Demonstration Project (RFP #6)

    HI, AS, GU



    Pacific Broadband Telehealth Demonstration Project (RFP #5)

    HI, AS, GU



    Southwest Telehealth Access Grid (RFP #5)

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



    Michigan Public Health Institute (RFP #4)




    Oregon Health Network (RFP #12)




    Southwest Telehealth Access Grid (RFP #6)

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



    Louisiana Department of Hospitals (RFP #1)




    Oregon Health Network (RFP #11)




    Adirondack-Champlain Telemedicine Information Network (RFP #1)




    Michigan Public Health Institute (RFP #3)




    New England Telehealth Consortium (RFP #1)

    ME, NH, VT



    New England Telehealth Consortium (RFP #2)

    ME, NH, VT



    Iowa Health System (RFP #3)

    IA, IL



    Pacific Broadband Telehealth Demonstration Project (RFP #4)

    HI, AS, GU



    FCC Seeks Comment on USAC Request for Guidance Regarding Text Message Revenue

    In a recent Public Notice, the FCC seeks comment on a USAC request for guidance: should text message revenues be classified as a telecommunications or non-telecommunications revenue for purposes of reporting and contributing to the Universal Service Fund?

    Comments are due by June 6, 2011, and reply comments are due by June 20, 2011.

    FCC Adopts Updated Ex Parte Meeting Rules to Promote Fairness

    To ensure transparency, to improve fairness and to make information available more quickly, the FCC adopted an Order making changes to its ex parte rules. The updated rules will be effective June 1, 2011, and will include the following changes:

    • Ex parte notices must be filed for all oral ex parte presentations except status inquiries;
    • Ex parte notices must include a summary of all new information discussed. Any information discussed that is already in the record must be cited to, including a page or paragraph number;
    • All ex parte notices must be filed electronically in a machine readable format, including a list of all participants, and an electronic copy of the notice must be provided to all FCC personnel that attended the presentation;
    • Ex parte notices must be filed within two days of the presentation, except in limited circumstances;
    • The Sunshine Period for FCC Open Meeting items begins the date after the Sunshine Notice is released;
    • FCC personnel may request revisions to ex parte notices or that additional information be submitted;
    • The FCC will not automatically incorporate comments posted on its new media websites into the record for all permit-but-disclose proceedings. The FCC will continue to determine if such comments should be included in the record for a proceeding on a case-by-case basis; and
    • Real-party-in-interest information should be collected for parties filing ex parte notices but how that information should be collected and maintained is the subject of a further Notice of Proposed Rulemaking.

    The new rules are effective June 1, 2011.

    FCC Seeks Comment on Proposed Wireless Signal Booster Rules

    The FCC proposes the use of fixed and mobile “consumer signal boosters,” which may be deployed by individuals or entities, to improve wireless coverage and to expand broadband into rural and difficult to ready areas, as long as the device (1) complies with all applicable technical and radiofrequency exposure rules and (2) a set of parameters aimed at preventing and controlling interference problems. A consumer signal booster is any signal booster operated by (or for the benefit of) consumers on spectrum being used to provide subscriber-based services, e.g. voice communications, texting, using a broadband connection to access email or the Internet. The proposed rules will apply to amplifiers, repeaters, boosters, distributed antenna systems (DAS) and in-building radiation systems that serve to amplify signals for subscriber-based services between a device and the network. Per the FCC, femtocells will not be regulated under the proposed rules.

    The FCC seeks comment on the use of consumer signal boosters; if existing boosters should be grandfathered if they do not comply with the FCC’s technical rules; the creation of a National Signal Booster Clearinghouse; and, how quickly after the rules are adopted, booster equipment manufacturers will be able to certify they are in compliance with the new rules. The FCC proposes that new signal boosters in radio services without specific technical booster rules (e.g., the Wireless Communications Service, Advanced Wireless Service, 1.4 Ghz, the Broadband Radio Service and the Educational Broadband Service) will need to comply with the technical rules for mobile devices rather than base stations, which is the practice today. Unless the FCC grandfathers existing booster stations from its proposed rules, existing booster stations will need to be retuned or dismantled.

    Comments are due by June 24, 2011, and reply comments are due by July 25, 2011.

    Rockefeller Seeks to Advance Spectrum Legislation

    Senate Commerce Committee Chairman Jay Rockefeller (D-WV) said his legislation that authorizes incentive auctions and funds a nationwide public safety broadband network will soon head to markup. Despite a White House endorsement for the plan and bipartisan support in the Senate, the bill may face challenges in the House, where the Homeland Security Committee has introduced its own spectrum proposal and the House Energy and Commerce Committee has yet to introduce one. However, the House Energy and Commerce Communications Subcommittee will hold a hearing on creating a public safety broadband network on May 25, 2011.

    Meanwhile, Senate Homeland Security and Governmental Affairs Chairman Joseph Leiberman (ID-CT) and Senator John McCain (R-AZ) introduced their version of D block legislation, the Broadband for First Responders Act of 2011, on May 19, 2011. The renewed push to pass the Senate bill, which would reallocate a valuable portion of spectrum known as the D block to public safety agencies while funding deployment and operation of a nationwide public safety network, coincided with a Washington summit hosted by APCO, public safety’s lobbying group.

    As Congress debates spectrum legislation, the FCC recently issued a Request for Information seeking input for the design and support of incentive auctions for clearing broadcast TV and other spectrum. Bill Lake, FCC Media Bureau Chief, stated that incentive auction models could be available “in a few months” or later this summer. If congressional authority to undertake incentive auctions is granted, the FCC believes it can commence an auction within 18 months. Comments on incentive auction design are due May 26, 2011.

    The White House also is trying to advance the cause of incentive auctions. Last month, it held a summit to discuss the economic benefits of auctioning under-utilized spectrum. At the summit, the wireless industry delivered a letter containing 112 signatures from economists across the country encouraging incentive auctions. The letter read, in part:

    We understand that Congress is considering legislation that would give the FCC explicit authority to run ‘incentive auctions’ in which it would have the ability to distribute some portion of the auction proceeds to licensees who voluntarily give up their license rights. We support such an effort and think it would increase spectrum efficiency in the United States.

    Chairman Julius Genachowski reiterated to the audience at the White House that “It’s essential that we move quickly…. Mobile broadband is being adopted faster than any platform in history…. If we wait until there’s a crisis, we will have waited too long.”

    Commercial Mobile Data Service Roaming Arrangements Must Use Commercially Reasonable Terms and Conditions

    The FCC adopted a rule requiring facilities-based commercial mobile data service providers to offer data roaming arrangements to other such providers on commercially reasonable terms and conditions. A commercial mobile data service is a mobile data service that is not interconnected with the public switched telephone network but is provided for profit and available to the public. Carriers are also permitted to negotiate commercially reasonable measures to safeguard quality of service against network congestion that may result from roaming traffic or to prevent harm to their networks, but those measures must be included in the terms and conditions of the roaming agreement. Among other reasons, a commercial mobile data service provider is not required to enter into a data roaming agreement if (1) the requestor’s network is not compatible or (2) it is not technologically feasible for the host to provide roaming for a requested service unless economically unreasonable changes are made to the host’s network to accommodate the service.

    The FCC’s new data roaming rules are effective on June 6, 2011.

    FCC May Apply Its Outage Reporting Requirements to VoIP and Broadband Service Providers

    The FCC proposes to extend its network outage reporting requirements to facilities and non-facilities based Voice over Internet Protocol (VoIP) service providers and broadband Internet Service Providers (ISPs). Today if a reportable outage is discovered, relevant communications providers are required to submit: (1) a Notification within two hours of discovery; (2) an Initial Report within 72 hours of discovery; and (3) a Final Report, containing all potentially significant information known about the outage, within 30 days of discovery. Through expanded outage reporting, the FCC hopes to track and analyze VoIP and ISP network outages, and use that information to refine and develop best practices to handle emergency situations more effectively.

    Comments are sought on several issues, including: the definition of outage reporting for VoIP and ISP services, the proposed reporting thresholds, the effectiveness of mandatory reporting, how the reporting process should work, what information should be reported, the relative burden of reporting for VoIP providers and ISPs compared to traditional reporters, the confidential treatment of the outage reports, and the costs/burdens/benefits of outage reporting by VoIP providers and ISPs.

    Comments and reply comments are due 60 and 120 days, respectively, after publication of the Notice of Proposed Rulemaking in the Federal Register.

    Increased Access to Modern Communications Technologies for the Deaf-Blind

    The FCC established a National Deaf-Blind Equipment Distribution Program (Program), which implements a provision of the Twenty-First Century Communications and Video Accessibility Act of 2010, to help low-income deaf-blind individuals gain access to modern communications services. The Program will ensure that eligible individuals have access to the Internet and advanced communications, such as interexchange services, advanced telecommunications services and information services. For the first two years, the Program will receive $10 million in funding from the Telecommunications Relay Fund. The FCC has the option of extending the Program for an additional year. Each state will receive at least $50,000 with the remainder of funding allocated in proportion to each state’s population. Certified programs will need to submit documentation for reimbursement and submit reports on their activities and expenses. The new rules are effective June 8, 2011.

    New Mobile Phone Emergency Alert System to Launch in New York and Washington, D.C.

    FCC, FEMA and the largest mobile telephone carriers announced the upcoming launch of the Personal Localized Alerting Network (PLAN), a new mobile telephone emergency alert service, in New York City and Washington, D.C. PLAN is expected to be available in New York and Washington, D.C. before the end of this year and across the United States in April of next year. Wireless customers with newer smart phones will be able to receive free, emergency text-like messages on their handset screen. The messages will be accompanied with a special vibration. Emergency messages will also continue to be broadcast to radio listeners and television viewers using the Emergency Alert System. PLAN recognizes that many people rely on their mobile devices for information and that mobile devices may be the most efficient mechanism for communicating information in an emergency. Federal, state and local agencies will be able to use PLAN to disseminate emergency information relating to natural disasters, terrorist attacks or AMBER alerts. Alerts will be automatically sent to any mobile device in the affected area even if the device has an out of area telephone number.

    The Rural Independent Competitive Alliance Seeks Universal Service Fund Reporting and Contribution Clarification

    The FCC seeks comment on the Rural Independent Competitive Alliance’s (RICA) request asking the FCC to clarify that rural competitive local exchange carriers are not obligated to report on FCC Form 499-A any portion of their end user revenues that are not collected pursuant to rates explicitly designed as charges for the provision of interstate service. RICA also seeks clarification that end user revenues recovered pursuant to rates charged for the provision of telephone exchange service entirely within one state are intrastate revenues.

    Comments are due by June 6, 2011, and reply comments are due by June 20, 2011.

    FCC Adopts New Procedural Rules to Improve Transparency

    The FCC’s revised procedural rules are designed to improve transparency and to provide the public with greater access to the decision-making process through the use of electronic records. The following is a list of some of the new rules:

    • Docket more proceedings so proceeding records are electronically available on the FCC’s website;
    • Mandatory electronic filing for certain proceedings;
    • Permit FCC staff to notify parties electronically of docket filings and to close inactive dockets;
    • FCC staff may dismiss or deny defective or repetitive petitions for reconsideration;
    • FCC on its own motion may modify, set aside or vacate a decision;
    • Set a default effective date for FCC rules if an effective date is not specified in a rulemaking order; and,
    • Add a “next business day” option to its computation of time rule for effective dates that would otherwise occur on a day the FCC is not open for business.

    The new rules are effective June 1, 2011. A Public Notice announcing inactive docketed proceedings that will be terminated is expected to be released later this year. Interested parties will have an opportunity to file petitions for reconsideration stating why a docket should not be terminated.


    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.