Patton Boggs TechComm Industry Update - September 2011

    30 September 2011

    Net Neutrality / Open Access Rules to be Published, Court Challenges to Follow

    While the Federal Communications Commission (FCC) released landmark rules designed to safeguard a free and open Internet last December, many are still wondering when these eagerly anticipated regulations will take effect. Last week, the FCC’s Open Internet regulations cleared their last bureaucratic hurdle when the Office of Management and Budget (OMB) signed off on the FCC’s rules. As a result, the FCC, in all likelihood, will publish its Open Internet rules in the Federal Register within the next three weeks. This is a key step for two reasons. First, the rules will go into effect sixty days after publication in the Federal Register. Second, publishing the rules in the Federal Register starts the clock for court challenges. Such challenges will be undoubtedly filed by major broadband service providers, such as Verizon and MetroPCS, which had challenges to the rules thrown out of court earlier this year on the grounds that they were filed prior to the regulations’ publication in the Federal Register and, therefore, premature. Content and edge providers that will benefit from the restrictions on service providers’ ability to block or discriminate against network traffic, at a minimum, should intervene in these challenges in order to support the FCC’s authority to adopt Open Internet rules. Additionally, such content providers may consider filing their own challenges to the FCC’s rules, arguing that they do not go far enough to safeguard the free and open nature of the Internet. While those hostile to any Open Internet rules will undoubtedly file their challenges in the D.C. Circuit, a court that is perceived to be more hostile to the FCC’s assertion of its regulatory authority in this case, content providers, by challenging these rules in other courts, such as the Ninth Circuit, could trigger a lottery that would determine in which court all challenges filed against the rules would be consolidated.

    Spectrum, Incentive Auctions, Public Safety Network Figure Prominently in President’s Jobs Plan

    Spectrum is a key part of President Obama’s American Jobs Act, the details of which he sent to Congress on September 12. The package calls for reallocation of the 700 MHz D-block for first responders and $7 billion to build and operate a nationwide public safety wireless broadband network. The $7 billion is much less than what the National Broadband Plan suggested a network would cost – $24.5 billion. It also comes in lower than the President’s budget request of $10.7 billion and the $11.75 billion proposed in S. 911, Senator Jay Rockefeller’s (D-W.V.) legislation. The jobs plan would establish a Public Safety Broadband Corporation with a board comprised of federal and non-federal members that would hold the license for D-block. The Corporation would be able to charge fees for use of capacity on the public safety network, whether by public safety users or by commercial users on a secondary basis.

    The so-called National Wireless Initiative contained in the jobs plan would also give the FCC authority to hold incentive auctions and require the Commission to assign at least 84 MHz of spectrum through competitive bidding.

    Unlike S. 911, the President’s plan would also authorize the FCC to assess and collect fees from Fiscal Year 2012 through 2021 for initial spectrum licenses and construction permits that were not assigned by auction, and for modifications or renewals of initial licenses and other authorizations, whether granted through competitive bidding or not, based upon public interest principles (i.e. if a modification increases the value of the license). Broadcast television and public safety radio services would be exempt from the spectrum user fees.

    Pre-Paid Calling Card Companies Face Increased FCC Scrutiny

    The FCC issued an Enforcement Advisory announcing enforcement actions against four companies in the pre-paid calling card industry and putting the industry on notice that the agency will continue to strictly enforce consumer protections regarding the marketing of pre-paid calling cards. The four enforcement actions assessed proposed forfeitures totaling $20 million dollars ($5 million each) for willfully and repeatedly violating Section 201 of the Communications Act (Act) by deceptively marketing pre-paid calling cards. Section 201(b) of the Act requires that “[a]ll charges, practices, classifications, and regulations for and in connection with [interstate or foreign] communications service, shall be just and reasonable….” The FCC determined that the companies’ marketing practices and fees and surcharges, which quickly depleted purchased pre-paid card minutes, were “unfair and unreasonable” practices under the Act. The FCC also noted that the fees and surcharges were contrary to the promised minutes of use available on the cards and that the terms and conditions for the cards were not sufficiently detailed for a purchaser to understand their meaning at the time of purchase on the number of minutes purchased.

    Although the FCC found the apparent violations of these companies particularly egregious, it noted that the enforcement actions revealed apparent widespread patterns of deceptive activity. The Enforcement Bureau hoped that the decisions “lead all pre-paid card providers to reexamine their marketing practices to ensure that they are treating consumers fairly.” What can pre-paid calling card companies do to protect against an FCC enforcement action? Review your advertising, marketing materials and procedures for anything the FCC might construe as an unfair, unjust, deceptive or unreasonable marketing practice. Companies need to ensure that their terms and conditions, fees and surcharges and actual available minutes on their cards are clear and conspicuously displayed at the point of purchase. Patton Boggs’ TechComm Group can conduct such a compliance review as well as advise on any and all enforcement inquiries and actions relating to pre-paid calling card advertising and marketing practices.

    LightSquared Update

    LightSquared just announced that it developed a prototype device that will allow precision GPS devices to operate in the lower 10 MHz of LightSquared’s MSS spectrum without experiencing harmful interference. Commercial production of the receiver could begin within several months, though GPS advocates have already signaled concerns over the prototype’s utility and effectiveness. It is expected that the prototype device will be included in the additional testing mandated by the FCC. In a House Committee on Science, Space, and Technology hearing held earlier this month on the impacts of the LightSquared network, Committee Ranking Member Eddie Bernice Johnson (D-TX) stated that she hoped both a reliable GPS and a LightSquared broadband network could co-exist. The House Armed Services Strategic Forces Subcommittee has also scheduled a hearing this month dealing with the GPS interference issue. Regulators from the relevant agencies, including FCC Chairman Genachowski, are expected to testify on whether GPS operations necessary for national security interests can be sustained if LightSquared’s proposal is adopted.

    Spectrum Legislation and Incentive Auctions

    The debate over spectrum legislation and incentive auctions seems ready to heat up again with Congress back in session. There is a good chance Congress will pass spectrum legislation later this year - either as a standalone bill, such as the Rockefeller/Hutchison bill (S. 911) or as a result of the process established by the Budget Control Act of 2011, in which the Super Committee will look for up to $1.5 trillion in additional deficit reduction. President Obama’s Jobs Bill would also authorize the FCC to conduct incentive auctions and reallocate the 700 MHz D-block to public safety. Senators Rockefeller and Hutchison (R-TX) have indicated that spectrum legislation is one of their top priorities, and the House Communications and Technology Subcommittee also listed broadband and wireless spectrum policy as a top priority.

    The impact of Hurricane Irene coupled with the recent earthquake in the Washington, DC area may help push the debate along. Senators Rockefeller and Hutchison sent a letter to FCC Chairman Genachowski arguing, in part, that these events showed a need for a nationwide wireless broadband network and that public safety cannot rely exclusively on commercial networks. The National Association of Broadcasters (NAB) also released statements after both events extolling the benefits of broadcast services and taking jabs at wireless services. CTIA responded with its position on the impact of the earthquake, claiming that “wireless networks worked” and asserting that network congestion experienced by some users just underscores the need to make more spectrum available for wireless services.

    In addition, a few weeks ago, Representative John Dingell (D-MI) sent a strongly worded letter to Chairman Genachowski because the Chairman failed to provide the Congressman with more information about the effects of voluntary incentive auctions on broadcasters, and refused to release the FCC’s Allotment Optimization Model (AOM) (“a tool that Commission staff is developing to assist the Commission in conducting voluntary incentive auctions”). NAB has been trying to get the FCC to release more information about the AOM. The Congressman said that he is left to conclude that NAB’s analysis of the effects of incentive auctions is “probably more correct than not,” and that the FCC is concealing the nature and consequences of incentive auctions. NAB released a statement expressing disappointment with the FCC’s response to Congressman Dingell stating, “If the FCC has evidence proving that NAB’s analysis is incorrect, it should make it available, and quickly.”

    Chairman Genachowski responded that the AOM is a work in progress and that he is “deeply concerned that disclosure of predecisional information would potentially damage the Commission’s deliberative processes, as well as result in needless public confusion about the status of the Commission’s work on the voluntary incentive auction concept.” Chairman Genachowski did commit to putting the AOM out for public comment before the FCC adopts rules for any future incentive auction.

    GAO Reports Uncertainty Regarding Low-Power Television Stations

    The Government Accountability Office (GAO) recently issued a report on low-power television stations. The report is particularly interesting because it discusses the relationship between low-power stations and the reallocation of broadcast spectrum for mobile broadband services. Among other things, the GAO states that the fact that the FCC is considering reallocating broadcast spectrum has created uncertainty for low-power stations and caused many to delay the transition to digital out of concern with being disadvantaged by the eventual repacking of spectrum. The report further notes that transitioning low-power stations from analog to digital can free up spectrum for other uses and concludes that the Commission has not collected adequate data to fully evaluate the benefits of low-power stations. Without this information, the FCC is limited in its ability to weigh the value of these stations against the need to reallocate spectrum to mobile broadband. The FCC appears to be working on the two recommendations made in the GAO report to explore options for better data collection and to work through questions about Class A low-power stations, but it will be interesting to see how the needs of low-power broadcasters will factor into the ongoing debate on spectrum reallocation.

    Commissioner Copps Calls for Evaluation of Integrating FM Chips in Mobile Phones

    In remarks delivered last week, FCC Commissioner Copps called for a “thorough, calm, and reasoned discussion” about integrating FM chips into mobile devices. The Commissioner described this proposal as a possible way to provide consumers with better means to receive communications during a disaster. As you may recall, NAB had made the inclusion of radio chips in mobile phones a major legislative priority for the 112th Congress.

    NAB quickly released a statement welcoming the discussion and touting the benefits of broadcasting: “Radio chips in cellphones require no additional spectrum and could be activated immediately in many devices. From a public safety perspective alone, it’s time to give citizens access to lifeline information provided by America’s hometown radio stations.”

    However, the story doesn’t stop there. In response to NAB, CTIA issued a strongly worded blog post taking issue with claims about the benefits of broadcast versus wireless services during an emergency. Not to be outdone, NAB responded to CTIA welcoming a debate on “whether broadcasting is more reliable in times of crisis than cellphone networks,” and indicating that it supports “voluntary” activation of radio chips in cell phones. NAB further urged cell phone makers to “do the right thing and activate radio chips in cellphones.”

    Court Denies Stay of the FCC’s New Pole Attachment Rules

    Earlier this year, the FCC adopted new pole attachment rules reducing the rates that utility pole owners can charge for telecommunication services, requiring pole owners to provide wireless carriers with greater access to poles and imposing a shot clock for how long pole owners have to allow attachments. The new pole attachment rules are effective. The utility companies filed a petition for reconsideration with the FCC opposing the new rules and a request for stay. Not surprisingly, the U.S. Court of Appeals for the D.C. Circuit denied the request stating that the utility companies did not meet the requirements for a stay. Petitions for reconsideration are still pending at the FCC.

    Per GAO, Agencies Need Rules for Social Networking and Protections Against Hacking

    Recently, the GAO reported that U.S. governmental agencies need to adopt recordkeeping, privacy and data security polices. The GAO reviewed more than 20 U.S. agency websites that use Facebook, Twitter and YouTube, and determined that such social media websites give agencies access to personal information that they would otherwise not have, and that the agencies need to develop policies that specify how or if such personal information may be used. The use of social media also increases an agency’s risk of a cyberattack. If left unprotected, attackers may be able to use social media to gain unauthorized access to U.S. government information systems.

    Updated Wireless Backhaul Rules, Comments Requested

    The FCC adopted new rules to facilitate the use of spectrum for wireless backhaul. Among other changes, Broadcast Auxiliary Service (BAS) and Cable Television Relay Service (CARS) spectrum at 6 and 11 GHz, will be available for fixed microwave services, including wireless backhaul. In addition, the FCC will allow adaptive modulation and temporary operations below the FCC’s minimum capacity requirements, in limited circumstances. The new rules are effective 30 days after publication in the Federal Register and receipt of OMB approval where applicable.

    In an accompanying Further Notice of Proposed Rulemaking (FNPRM), the FCC asks for comment on additional rule changes intended to make microwave communications more flexible and cost-effective. For example, the FCC proposes allowing the use of smaller antennas in the 6, 18 and 23 GHz bands; exempting licensees in non-congested areas from efficiency standards; and allowing the licensing of wider channels of spectrum in the 6 and 11 GHz bands. Comments and reply comments are due no later than October 4, 2011 and October 25, 2011, respectively.

    Right-of-Way and Wireless Siting Proceeding, Reply Comment Deadline Extended

    In the FCC’s access to rights-of-way notice of inquiry proceeding, the deadline for filing reply comments was extended to September 30, 2011. The FCC seeks comment on current rights-of-way and wireless facilities siting policies, the challenges associated with such policies and potential solutions to improve rights-of-way and wireless facilities siting policies.

    Proposed Extension of 911 Rules to Additional VOIP Services

    In a recent order, the FCC strengthened its E911 rules by supporting its existing rules for hand-set and network-based E911 location accuracy standards and the phasing out of network-based location accuracy standards over time. The order also adopts a requirement that new Commercial Mobile Radio Service (CMRS) networks comply with handset-based location criteria, regardless of whether the new network uses handset- or location-based location accuracy technology. A new rule was also adopted that requires wireless carriers to test their outdoor E911 location accuracy technology and to provide the results of those tests to Public Safety Answering Points (PSAPs), state 911 offices and the FCC. Carriers may request confidential treatment of their test results.

    In the notice of proposed rulemaking (NPRM), the FCC seeks comment on whether E911 requirements should be extended to VOIP services that permit outbound calls to the public switched telephone network (PSTN). The FCC asks if such callers have an expectation that they will be able to use 911 to call for emergency services. The NPRM also seeks comment on whether the FCC should adopt a framework to ensure that all VOIP providers can provide automatic location information (ALI) for VOIP calls. Today, interconnected VOIP users must manually provide their location information to their VOIP provider. Automatic location information would mean that a roaming VOIP user’s 911 call would be automatically routed to the most appropriate PSAP. The NPRM also requests comment on whether the FCC should revise its definition of interconnected VOIP to include calls made over any type of Internet connection, which would include dial-up users, and/or any call that connects to a domestic telephone number in order to incorporate calls to the PSTN, and any call that only uses an IP-based network.

    Comments and reply comments are due no later than October 3, 2011 and November 2, 2011, respectively.

    Bloomberg TV Files a Complaint Against Comcast for Alleged Merger Condition Violations

    Bloomberg TV filed a complaint with the FCC alleging that Comcast violated the “neighborhooding” condition adopted by the FCC as part of the FCC’s approval of Comcast’s merger with NBC Universal. The condition requires Comcast to place channels such as Bloomberg TV within Comcast’s cable system channel line-up in the same “neighborhood” as competing news networks. In the complaint, Bloomberg states that Comcast’s refusal to neighborhood Bloomberg TV makes it more difficult for viewers to find Bloomberg TV and potentially depresses viewership. Comcast’s response argues that Bloomberg is misinterpreting the FCC’s neighborhooding merger condition and that Comcast does not neighborhood news stations in the manner suggested by Bloomberg. (Bloomberg TV is represented by Patton Boggs in the proceeding).

    New Program Carriage Rules Adopted, FCC Seeks Further Comments

    The FCC adopted new program carriage rules that establish “standstill” procedures, which will require some pay-TV providers to continue to carry an independent cable-network while a program carriage complaint is pending before the FCC. The terms of the expiring carriage agreement between the parties will remain in effect while the complaint is pending, subject to a possible “true-up” after the case is decided. FCC Commissioner McDowell dissented on this issue, claiming that the FCC did not properly raise the possibility of a “standstill” rule in a prior notice and the adoption of such a rule at this point violates the Administrative Procedure Act. Similarly, NCTA called the process “flawed” and implied that it may challenge the rules in court. The standards for establishing a prima facie case and filing deadlines are also included in the new rules. The effective date of the new rules is 30 days after publication of the order in the Federal Register and receipt of OMB approval, where applicable.

    In an accompanying NPRM, the FCC also seeks comment on a number of further changes to its program carriage rules, such as requiring that complaints be filed within one year of the violation, revising discovery procedures, allowing the Media Bureau or an ALJ to order the parties to submit their best “final offer” and clarifying which party to the dispute bears the burden of proof. In addition, the FCC invites suggestions on further rule changes to improve the FCC’s procedures and promote the goals of the 1992 Cable Act.

    The new rules and NPRM come on the heels of recent FCC decisions involving the Tennis Channel, Mid-Atlantic Sports Network and WealthTV (a Patton Boggs client). Differing results and procedural questions in those cases identified the need for an examination of the rules.

    Comments and reply comments are due no later than 60 days and 90 days, respectively, after publication of the NPRM in the Federal Register.

    Retransmission Consent Reform

    The Chairman and Chief Executive Officer of Mediacom, a cable television provider, recently sent a sharp letter to FCC Chairman Genachowski criticizing the FCC for not doing more to reform its retransmission consent rules and protect consumers. As you may recall, a television broadcaster may elect either “must-carry” or to enter into negotiations with cable providers for retransmission of its station over a cable system. The Mediacom executive said that he hoped that Chairman Genachowski would take action to address “the escalating wholesale costs for television programming,” but that in the last three years, the FCC has done nothing. The FCC has opened a proceeding on retransmission consent issues.

    The letter comes on the heels of a dispute between Mediacom and broadcaster LIN Television Corporation. The retransmission consent agreement between these companies recently expired without the parties reaching a new agreement. LIN then pulled its programming from Mediacom cable systems in small- and mid-sized markets. In its letter, Mediacom proposed a number of retransmission consent reforms, including instituting alternative dispute resolution procedures, requiring television stations to disclose the prices they charge to pay-tv providers, and prohibiting a single company from negotiating a retransmission agreement on behalf of multiple big-four broadcast stations in a single market.

    NAB issued a statement in response. NAB argued that cable operators have significantly increased subscription fees for years even though only a fraction of the operators’ expenses are from programming costs – implying that the increase in cable subscription fees is not because of retransmission fees.

    Copyright Office and Media Bureau Reports

    The U.S. Copyright Office released its report on phasing out statutory copyright licenses that enable a pay-TV provider to retransmit local and distant broadcast television signals without having to negotiate individual licenses with each copyright holder. In the report, the Copyright Office recommended that Congress provide a date-specific trigger for phasing-out and repealing licenses for retransmitting signals from distant television stations, but that Congress should postpone consideration of whether to repeal the license for retransmitting local television stations until a later date. The delay in phasing-out and repealing the licenses for the retransmission of local signals will allow for the development of new business models during the phase-out and repeal of distant signal licenses and give Congress more information before it acts on licensing procedures for local signals.

    On the same day, the FCC’s Media Bureau issued a report to Congress on issues related to in-state broadcast television. Concerns have arisen about the inability of some residents that live in counties located in a different state than the principle city in a television market from being able to receive in-state broadcast television stations. In the report, the Bureau found that in all but two states (Alaska and Hawaii), at least some households receive one or more out-of-state broadcast stations, and that about 99.98 percent of households nationwide have access to at least one in-state station. The Bureau also discussed some alternatives for defining local television markets.

    Low-Power FM in Urban Areas

    Last week, 28 members of the House led by Representative Mike Doyle (D-PA) sent a letter to FCC Chairman Genachowski urging the FCC to ensure that there is space reserved in urban areas for new low-power FM station licenses “based on the needs of the local community,” as required by the Local Community Radio Act. The letter also urges the FCC to “ensure that licenses are awarded to truly local churches, nonprofit organizations, local governments and schools.” In a separate statement, Representative Doyle said “[t]he benefits of low power FM radio have been demonstrated time and time again. These stations have been instrumental in local news reporting, emergency response, and cultural enrichment.”

    TAC Reestablished, FCC Acts on Recommendations

    The FCC reestablished the Technology Advisory Council (TAC) for two years. The TAC, comprised of diverse technical experts, assists the Commission with identifying important areas of innovation. In April, the TAC released eight recommendations to promote innovation and broadband deployment. The FCC implemented four of the recommendations: (1) a municipal Race to the Top program; (2) best practices/technology outreach to state and local governments; (3) a broadband infrastructure executive order; and (4) promotion of small cell deployment. The FCC is waiting for additional analysis before moving forward on the remaining four recommendations, including the recommendation for rapid tower siting advocacy. 

    $12,000 Consent Decree Adopted to End FCC Payola Investigation

    The FCC and Emmis Broadcasting Company entered into a $12,000 consent decree to end the FCC’s investigation into Emmis’ sponsorship identification practices (payola). A complaint filed with the FCC alleged that the host of a music program on Emmis’ Austin, TX station was accepting compensation from a local music club, a local record store and a local band manager in exchange for featuring specific local bands. The complaint alleged that local bands had to make a financial contribution to station events hosted by the radio personality in order to be broadcast during that personality’s program. The FCC resolved the complaint, without determining if the allegations were true, by accepting a voluntary contribution to the U.S. Treasury and Emmis’ commitment to adopt procedures to ensure that its employees comply with the FCC’s payola rules. The consent decree also identifies the permissible relationships a station employee may have with a record company.

    The Emmis consent decree was adopted on the heels of a $4,000 sponsorship identification consent decree involving a television station. The television station failed to adequately identify an automobile company as the producer of a video news release that featured the automobile company’s vehicles.

    Revised Rules for Certification of Internet-Based TRS Providers, Including VRS

    Under new rules, all Internet-based Telephone Relay Service (iTRS) providers now must be certified by the FCC before they can receive compensation from the Interstate TRS fund. Under the new rules, Video Relay Service (VRS) providers, a subset of iTRS providers, must now lease, license or own – as well as operate – essential facilities such as call centers, and employ their own interpreters to staff those centers. Subcontracting out call center functions will no longer be allowed. The FCC also reserves the right to provide conditional certification subject to an onsite visit and will require providers to annually update any changes to certification-related information. Further, certain providers will need to report substantive changes in their programs and obtain prior approval for planned cessations of service of 30 minutes or longer.

    Proposed New Rules to Combat “Cramming" Available for Comment

    The FCC seeks comment on new “cramming” rules aimed at protecting consumers from the unauthorized placement of charges on their landline and wireless telephone bills. Specifically, the FCC’s proposed rules would: (1) require landline carriers to notify subscribers clearly and conspicuously, at the point of sale, on each bill and on their websites, of the option to block third-party charges from their telephone bills, if the carrier offers that option; (2) require landline carriers to place charges from non-carrier third-parties in a bill section separate from carrier charges; and (3) require landline and Commercial Mobile Radio Service (CMRS) carriers to include FCC contact information for complaints on all telephone bills and on their websites. The NPRM also suggests that the FCC may impose very specific requirements on carriers – with the Commission seeking comment on the “wording, placement, font size, and other relevant factors, at the point of sale, on bills, and on websites, that would be necessary” for effective notifications alerting consumers on how to avoid becoming the victims of cramming. Other issues for comment include: if telephone companies should be required to offer subscribers the option to block third-party charges, if telephone carriers should be required to screen third parties before agreeing to place their charges onto a consumer’s telephone bill, if the new rules should apply to wireless and interconnected VOIP services, and if third-party charges on telephone bills should be prohibited.

    Comments and reply comments are due no later than October 24, 2011 and November 21, 2011, respectively.

    USF/ICC Reform Proposals Are Under Review

    Comments were recently filed regarding three proposals to reform the Universal Service Fund (USF) and the Intercarrier Compensation (ICC) mechanisms, including a compromise proposal brokered by the trade association USTelecom and supported by various independent telephone company associations. Rural wireless carriers, satellite companies and the cable industry expressed varying levels of concern over certain provisions of the USTelecom-brokered proposal – which, among other things, calls for the creation of a $300 million per year mobility fund and a five-year transition from funding legacy telephone networks to funding broadband networks. A coalition of companies including Google, Skype, Vonage, Sprint Nextel and others filed their own proposal that urges the FCC to more quickly end USF support. The docket is still open, but the FCC expects to make a decision in the near future.

    FCC Broadband Progress Report

    The FCC found in its most recent Broadband Progress Report that nearly 26 million Americans have no access to high-speed Internet connectivity and another 100 million choose not to subscribe, even when connectivity is available. The findings indicate that other barriers to subscription, such as cost, low digital literacy rates and privacy concerns, remain prevalent in many areas. Rural and tribal areas, areas with a high number of low-income, areas with African-American or Hispanic residents, and senior communities have some of the lowest broadband adoption rates. The report states that the FCC will need to work with the states and the private sector in order to improve adoption rates in these communities. The report also notes the limited availability of broadband in schools and libraries. For the first time, the report relies on actual, rather than estimated, broadband usage data.

    The FCC also released a notice of inquiry (NOI) seeking information on the status of broadband for use in its next Broadband Status Report. The following are some of the issues available for comment:

    • What is advanced telecommunications capability?
    • How should broadband deployment be interpreted and measured?
    • Is broadband being deployed in all areas of the United States?
    • Is broadband deployment reasonable and timely?
    • Is broadband available to all areas of the United States?
    • What actions can be taken to accelerate broadband deployment?

    Reply comments are due October 4, 2011.

    Foreign Ownership Review Process for Common Carriers to Be Streamlined

    The FCC adopted an NPRM requesting comments on the ways that the FCC’s foreign ownership of common carrier authorizations review process could be streamlined. Some of the current and revised proposals available for comment are:

    • Require common carriers to obtain FCC approval under section 310(b)(4) of the Communications Act before the aggregate direct or indirect foreign ownership of their parent company exceeds 25 percent;
    • No longer require U.S. parent companies to obtain specific approval of named foreign investors unless an investment will exceed 25 percent or is a controlling interest at any level;
    • Reduce the need for repeated filings by parent companies by allowing applicants to request blanket approval for named foreign investors up to a non-controlling 49.99 percent or 100 percent, as long as no one investor or investor group holds 25 percent or more, or a controlling interest at any level;
    • Issue foreign ownership determinations in the name of the parent company so that the determination applies to the parent company and all of its U.S. subsidiaries and affiliates; and
    • Require foreign ownership determinations to identify any individual or entity that will hold directly or indirectly 10 percent or more of the equity and/or voting interests in the U.S. parent or at any level.

    Comments and reply comments are due no later than 45 days and 75 days, respectively, after publication of the NPRM in the Federal Register.

    FCC Adopts Revised E-rate Rules to Incorporate Internet Safety Policy Requirements

    The FCC has revised its E-rate Program rules to comply with the requirements of the Protecting Children in the 21st Century Act. Most significantly, the FCC added a new certification requirement for schools seeking E-rate support for Internet access and internal connections. Under the revised rules, E-rate applicants must certify that a school’s Internet safety policy includes a process for educating minors about appropriate online behavior. The Internet safety policy must also include monitoring the online activities of minors.

    Rural Healthcare Pilot Program

    Rural Healthcare Pilot Program (Program) participants currently face a June 30, 2012, deadline to submit RFPs or risk losing awarded funds. Many Program participants are struggling to secure matching funds in the current economic environment, and the Patton Boggs TechComm team is working to examine options for relief. To date, more than 65 percent of 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.

    Fairness Doctrine and FCC Reform

    The FCC recently released an order removing the “Fairness Doctrine” and a number of other out-dated and obsolete provisions from the FCC’s regulations. Under the Fairness Doctrine, broadcasters had been required to provide coverage of important controversial issues of interest in the community and provide a reasonable opportunity for opponents to share contrasting viewpoints. The FCC no longer enforces this doctrine, but the Fairness Doctrine and related provisions had not been removed from federal regulations.

    Chairmen Upton and Walden welcomed the news, calling the Fairness Doctrine a “relic” that “endanger[ed] our sacred freedoms of speech and the press.” The House Chairmen also praised Chairman Genachowski for his commitment to develop a plan for reviewing existing FCC regulations in compliance with a recent executive order, but also called on the FCC to do a better job of adopting “[g]ood government practices.” FCC process reform was recently listed as a high priority of Walden’s subcommittee.

    Video Description Rules Reinstated

    The FCC adopted new video description rules that require the “the insertion of audio narrated descriptions of a television program’s key visual elements into natural pauses in the program’s dialogue.” The rules are intended to make video programming more accessible to the blind and visually impaired, and are similar to previous rules that had been overturned by the courts. Specifically, the new rules require: (1) large-market affiliates of the top four television networks and pay-tv providers with more than 50,000 subscribers to provide video description; (2) covered broadcasters to provide 50 hours of video-described prime time or children’s programming, per calendar quarter, and covered pay-tv providers to provide 50 hours of programming on each of the five most popular nonbroadcast networks; and (3) all network-affiliated broadcasters and pay-tv providers to pass through any video description provided with their programming (when technically feasible).


    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.