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Telecom/IT Policy Highlights

Volume: 6.07
August 2006

Microsoft Word version / August, 2006 TiPH (175kB)

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Contents:
Overview
Legislative Activities
Policy / Regulatory Activities
Judicial Activities
Studies / Reports
Other Activities and Items of Interest
Upcoming Events
Newsletter Info
  • Overview

    The month of August generally sees a slowdown in policymaking as legislators on Capitol Hill embark on their month-long summer recess. Key pieces of legislation discussed in the previous issue of the TIPH, such as the “Communications Opportunity, Promotion, and Enhancement Act” and “Advanced Telecommunications and Opportunity Reform Act,” have yet to come up for full votes in their respective chambers of Congress. Nevertheless, we call attention to one piece of legislation introduced right before the break. Sen. Richard Durbin’s [D-IL] “Broadband for Rural America Act of 2006” represents another legislative initiative to increase broadband deployment in the rural United States. Once Congress reconvenes after the Labor Day holiday, lawmakers are sure to return to work on this and other pieces of proposed legislation.

    Despite the Congressional recess, there were some important developments in both the regulatory and judicial arenas. The FCC delivered an important decision supporting the development of broadband over power lines. At the same time, the Commission is considering modifications to rules for wireless spectrum. Portions of this spectrum are being auctioned for use by wireless service providers this month. Finally, the FCC was prompted to intervene as two carriers continued to charge fees related to the Universal Service Fund, contributions to which are no longer mandated by the federal government for DSL service providers.

    Two U.S. Courts of Appeals handed down decisions which will certainly impact FCC policymaking in the coming months and years. One ruling favors state governments and their right to regulate billing practices. Another ruling favors the FCC in its bid to increase competition among advanced broadband service providers.


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  • Legislative Activities


    Rural Broadband Act Introduced in Senate
    08.03.2006 – Just before Congress embarked on its August recess, Sen. Richard Durbin (D-IL) introduced the “Broadband for Rural America Act of 2006” [S. 3820] on August 3, 2006. Despite efforts by traditional communications carriers to provide broadband services to rural communities, the rate of deployment is still not ideal, according to the proposed legislation. Durbin’s bill specifically addresses funding for rural broadband initiatives.

    The proposed legislation would establish a national broadband trust fund dedicated to helping rural communities develop high-speed Internet infrastructure and services. In addition to investment, the “Broadband for Rural America Act” would provide below market-rate loans and guarantees in the construction and improvement of broadband facilities and equipment in rural areas. Finally, it would mandate the FCC to allocate portions of newly opened spectrum for rural wireless services and establish a task force to determine and maintain best practices for rural broadband systems.

    Durbin’s bill has been referred to the Senate Committee on Commerce, Science, and Transportation for further review. The bill’s text is available online at [http://thomas.loc.gov/cgi-bin/query/z?c109:S.3820:]. [Source: Library of Congress]


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  • Policy / Regulatory Activities


    Biennial Review Comments Sought by FCC
    08.10.2006 – In accord with Section 11 of the Communications Act of 1934, as amended [47 U.S.C. § 161], the FCC is undertaking a biennial review to 1) examine regulations that apply to any operator of a telecommunications service, and 2) determine whether such regulation is no longer necessary to the public interest as the result of meaningful competition. As such, the FCC is directed to repeal or modify regulations concluded not to be in the public interest.

    The FCC seeks public comment regarding what rules should be modified or repealed as part of the 2006 biennial review. Comments are expected to state specifically which rules should be changed or modified, and explain why and how the rules should be changed. For a copy of this Public Notice, with further details on how to submit a filing, please see [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-06-115A1.txt]. Comments were due September 1, 2006, and reply comments are due September 15, 2006. [Source: FCC]

    Broadband over Power Lines Promoted by FCC Order
    08.03.2006 – The FCC has issued a Memorandum Opinion and Order [FCC 06-113] designed to loosen many of the strictures requested for Access Broadband over Power Line (Access BPL) service. In the MO&O, the FCC upheld most of its proposed rulemaking from 2004. However, the latest MO&O rejected petitions from the aviation and television industry, other commercial interests, and amateur radio users to limit or prohibit deployment of Access BPL service. Such groups have argued that the interference of Access BPL service was too excessive and hindered their own activities. The FCC generally denied requests from these groups to exclude or prohibit BPL services at certain frequencies, noting that there was not enough evidence of interference to warrant such strictures. The MO&O reaffirms the Commission’s commitment to increase broadband penetration throughout the United States, with Access BPL serving as another means to deliver broadband services to markets which have limited options for such services. While commissioners have noted their support for BPL as another means of delivering broadband Internet services, they have attempted to balance such enthusiasm with a commitment to monitor complaints about interference in the future. The MO&O upholds earlier rulemaking on emissions of BPL equipment and mandates its continued certification and the development of a public database by BPL providers about their services and products.

    A copy of the FCC’s MO&O is available at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-06-113A1.txt]. [Source: FCC]

    Direct Broadcast Satellite Service Comments Sought
    08.14.2006 – The FCC has adopted a Notice of Proposed Rulemaking [FCC 06-120] for revising licensing procedures and service rules for satellites providing Direct Broadcast Satellite (DBS) service. In particular, the Commission is considering whether to develop a first-come, first-served process for all DBS applications, regardless of the proposed DBS satellite orbit. The FCC is accepting comments on the feasibility and desirability of such a change to its licensing process.

    Given that the FCC generally considers DBS service separately from other satellite services, the NPRM also asks for comment on what additional issues the Commission should consider regarding the application process; whether licensing procedures applicable to other systems should apply to DBS systems; how to resolve impasses in operator-to-operator coordination; and whether action is needed to address the impact of reduced spacing DBS on other services.

    Comments will be due 75 days after publication in the Federal Register, and reply comments due 105 days after publication. A copy of the NPRM may be found at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-06-120A1.txt]. [Source: FCC]

    Verizon and BellSouth Subject of FCC “Truth in Billing” Concerns
    08.30.2006 – FCC Chairman Kevin Martin issued a statement on August 30, 2006, announcing his satisfaction with decisions by Verizon and BellSouth to eliminate a surcharge for high-speed Internet services. At issue was the FCC’s 2005 decision to no longer require DSL carriers to contribute revenue to the Universal Service Fund (USF), effective August 14, 2006. Most DSL service providers appeared to have reduced customers’ bills to reflect the end of the USF fee assessment. However, BellSouth continued to charge the $2.97 per month charge, claiming that the fee was “designed to cover a number of costs remaining from previous regulatory obligations and other network expenses.” Verizon, which had previously charged its customers from $1.25 to $2.83 a month, based on the level of service, replaced the FCC fee with a “supplier surcharge,” ranging from $1.20 to $2.70 a month.

    These continued charges by BellSouth and Verizon prompted the FCC to issue a “letter of inquiry” in late August, to determine whether the companies had violated Truth and Billing Laws. Shortly after the Commission had reported its inquiries, both BellSouth and Verizon announced that they were ending the fees and refunding consumers who had been charged.

    For a copy of Chairman Martin’s statement, please see [http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-267159A1.txt]. [Sources: FCC, Reuters, Washington Post, Atlanta Journal-Constitution]

    Wireless Licenses in 700 MHz Spectrum Band Rules Under Consideration
    08.03.2006 – The FCC has adopted a Notice of Proposed Rulemaking [FCC 06-114] to consider possible changes for rules governing wireless licenses in the 700 MHz spectrum band (allocated portions between 698-806 MHz). These portions of the broadcast spectrum have been opened for wireless services as a result of the digital television transition and are expected to be auctioned off. In this omnibus NPRM, which includes a Notice of Proposed Rulemaking, Second Further Notice of Proposed Rulemaking, and Fourth Notice of Proposed Rulemaking, the FCC is concerned with determining whether there is a need to revise the size of geographic service areas and performance requirements for unauctioned portions of the wireless spectrum. In addition, the FCC seeks to implement rules to ensure compatibility with Enhanced 911 (E-911) service and Section 68.4 of the FCC’s rules concerning hearing aid compatible (HAC) phones. Comments are due 30 days after this NPRM’s publication in the Federal Register, and reply comments are expected within 60 days of publication in the Federal Register. A copy of the NPRM is available at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-06-114A1.txt]. [Source: FCC]


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  • Judicial Activities

    District Court Issues Opinion on NSA Surveillance Program
    08.17.2006 – The U.S. District Court for the Eastern District of Michigan has issued its opinion in ACLU v. NSA [Case No. 06-CV-10204], finding that one aspect of the National Security Agency’s (NSA) surveillance program—electronic intercepts where one party is in the United States and another is outside—violates the separation of powers doctrine, the First and Fourth Amendments, and federal statutes. Related specifically to telecommunications policy, the Court found that the NSA’s programs for conducting warrantless wiretaps of telephone and Internet communications had violated the Foreign Intelligence Surveillance Act. The Court rejected the defendant’s arguments that the case be dismissed on procedural grounds due to a lack of standing and state secrets doctrine. In making its decision, the Court ruled that the NSA’s program violates the Fourth and Fifth Amendments, citing the program’s warrantless nature, as well as the First Amendment. The Court also indicated a violation of the separation of powers doctrine, finding that executive claims of authority by the President were made in the absence of proper Congressional authorization. Finally, the Court found that the defendant’s argument that the surveillance program was authorized by the Authorization for Use of Military Force [Pub. Law No. 107-40] was insufficient, while concurring with the plaintiff that the program was in violation of the Administrative Procedure Act (APA). The Department of Justice has announced that it will pursue an appeal in the case, which will likely be heard by the U.S. Court of Appeals for the Sixth Circuit, which has jurisdiction for this case. A copy of the District Court’s ruling may be found at [http://www.mied.uscourts.gov/eGov/taylorpdf/06%2010204.pdf] (PDF only). [Sources: U.S. District Court-Eastern District of Michigan, New York Times, Washington Post]

    FCC Forbearance Order Upheld by Court of Appeals
    08.15.2006 – The U.S. Court of Appeals for the District of Columbia Circuit has issued its opinion in Earthlink v. FCC [No. 05-1087], effectively ruling in favor of the FCC and a forbearance order it adopted in October 2004. In that Memorandum Opinion and Order [FCC 04-254], the Commission granted the regional bell operating companies’ (RBOC) petitions for forbearance from FCC rules that would impose obligations to share, or “unbundle,” certain parts of their networks with competitors such as Earthlink, on regulated terms and conditions.

    By denying Earthlink’s petition of review, the Court of Appeals has upheld the FCC’s forbearance order requested and received by Verizon Communications, BellSouth, Qwest Communications, and pre-merger SBC Communications. These companies are free, with respect to their fiber-based networks, from requirements of the Telecommunications Act of 1996 that mandated such companies “unbundle” their networks to access by competitors. The Bells are generally required to lease access to their traditional copper phone lines. The forbearance and the FCC’s decision to grant it, however, loosened such rules to encourage more telephone companies to deploy more advanced broadband services and boost their competitiveness against cable broadband service providers. The FCC concurred with the phone companies that the mandatory unbundling requirements of the 1996 Telecommunications Act would discourage investment in more expensive ventures such as fiber to the home.

    For a copy of the U.S. Court of Appeals’ ruling, please see [http://pacer.cadc.uscourts.gov/docs/common/opinions/200608/05-1087a.pdf] (PDF only). [Sources: U.S. Court of Appeals for DC Circuit and FCC]

    State Regulation of Wireless Billing Upheld by Appeals Court 07.31.2006 – The U.S. Court of Appeals for the Eleventh Circuit, in Atlanta, has issued its opinion in NASUCA v. FCC [No. 05-11682], finding that the FCC exceeded its authority by preventing states from requiring or prohibiting the use of line item billing for consumer wireless services. At issue was a section the Communications Act of 1934 [47 U.S.C. § 332(c)(3)(A)] which denies state and local governments the authority to “regulate the entry of or the rates charged by any commercial service or any private mobile service.” The FCC, according to the Court of Appeals, misinterpreted the law and overstepped its authority when it preempted states from requiring or prohibiting the use of line items. The Court upheld a petition filed jointly by the National Association of State Utility Commissioner Advocates (NASUCA) and National Association of Regulatory Utility Commissioners (NARUC) against the FCC and a number of telecommunications companies, including AT&T, Verizon, Sprint, Nextel, and Cingular. The judges who issued their opinion in the case found that “the scope of federal authority to regulate ‘rates’ or ‘entry’ does not include presentation of line items on wireless cellular bills....This billing practice is a matter of ‘other terms and conditions’ that Congress intended to be regulable by the states.”

    A copy of the Court of Appeals’ decision may be found online at [http://www.ca11.uscourts.gov/opinions/ops/200511682.pdf] (PDF only). [Source: Court of Appeals for 11th Circuit]


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  • Research / Reports

    VoIP Use Increases by 21 Percent
    08.10.2006 – A study by research firm TeleGeography finds that U.S. subscribers to Internet-based telephone service providers grew by 21 percent in the second quarter of 2006, to a total of 6.9 million customers. Compared to last year, in mid-2005, Voice over Internet Protocol (VoIP) subscriptions have grown by 153 percent. At the same time, the revenues of VoIP providers increased by 175 percent in the second quarter of 2006, to $607 million. The increases have been staggering—at the same time last year, revenues were only $221 million. [Source: Associated Press, Chicago Tribune]


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  • Other Activities and Items of Interest

    Communication Technologies and Policy Addressed in Bernanke Speech
    08.25.2006 – In his speech “Global Economic Integration: What’s New and What’s Not?” Ben Bernanke, Chairman of the Federal Reserve Board, addressed the role of communication technologies, among other factors, in supporting recent global economic integration. Bernanke pointed to technologies that have reduced the costs of transportation and communication as a key factor in such developments. For example, he noted how substantial improvements in supply-chain management, made possible largely through advances in communication and computer technologies, have resulted in lower costs for coordinating production among globally distributed suppliers.

    A key theme of Bernanke’s speech, however, is the interrelationship between technological innovation and economic development. While communication advances have driven economic integration, at the same time, economic incentives have been pivotal drivers of technological innovations such as those found in telecommunications. In a speech that relied heavily on historical observations, Bernanke also focused on how national policy choices, especially those in areas such as telecommunications, are also determinants of international economic integration. A copy of Chairman Bernanke’s speech is available online at [http://www.federalreserve.gov/boarddocs/speeches/2006/20060825/default.htm]. [Source: Federal Reserve Board]

    FTC Chairman Gives Speech on Net Neutrality
    08.21.2006 – Deborah Majoras, chairman of the Federal Trade Commission (FTC), gave a speech on net neutrality at a conference hosted by the Progress and Freedom Foundation (PFF) in Aspen, Colorado, on August 21, 2006. In her speech entitled “The Federal Trade Commission in the Online World: Promoting Competition and Protecting Consumers,” Chairman Majoras emphasized the FTC’s role in protecting the competition offered by the Internet and World Wide Web and its obligation to root out anticompetitive business conduct. To aid the FTC in such a mission, Majoras discussed the creation of an Internet Access Task Force, which will investigate important issues raised by “converging technologies and regulatory developments” and educate the FTC about relevant issues and inform policy making and enforcement, as well as education and outreach efforts.

    While not taking an explicit stand on net neutrality, Majoras discussed both sides of the current debate in her speech. While she does not rule out the creation of a net neutrality regulatory framework by the FTC, Majoras also expresses doubts that government regulation, rather than free market operation, will provide a better solution for the problems surrounding net neutrality. For a copy of Chairman Majoras’s speech, please see [http://www.ftc.gov/speeches/majoras/060821pffaspenfinal.pdf] (PDF only). [Source: Federal Trade Commission]


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  • Events

    CTIA Wireless I.T. and Entertainment 2006
    09.12-14.2006 – CTIA—The Wireless Association will be hosting its fall CTIA Wireless I.T. and Entertainment convention at the Los Angeles Convention Center, on September 12-14, 2006. The focus of this convention will be integrating wireless technologies into the enterprise and vertical business markets such as healthcare, government, automotive, and retail. In addition, the event will showcase the continuing growth in wireless entertainment, ranging from music downloads to digital cameras to interactive games. The convention aspires to bring together mobile technology users, wireless carriers, and manufacturers and other companies.

    For more information on the CTIA convention, including registration information, please see [http://www.wirelessit.com/].

    FCC Public Safety and Homeland Security Workshop
    09.26-27.2006 – The FCC will host a Public Safety and Homeland Security Regional Workshop and Roundtable in Polson, Montana, on September 26 and 27, 2006, as part of its Indian Telecommunications Initiatives (ITI) program. The event is designed to provide tribes with tools to plan for the protection of critical communications infrastructure on, or serving, tribal lands.

    For more information on the workshop and roundtable, the Public Notice is available at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-06-1654A1.txt]. [Source: FCC]

    NTIA’s Continuity of Business (via satellite) Summit
    09.21.2006 – The National Telecommunications and Information Administration (NTIA) of the U.S. Department of Commerce will co-sponsor a conference entitled “Continuity of Business (via satellite) Summit” on Thursday, September 21, 2006, 9:00 a.m. to noon, at the U.S. Department of Commerce, Washington, D.C. The meeting will focus on the potential for satellite communications to prevent business interruptions in case of a natural disaster, cyber attack, or other terrorist action. The meeting is informed by recent world events, such as Hurricane Katrina and the World Trade Center attacks, that demonstrate the need for additional communications channels to prevent communication outages among American businesses and industries.

    For more information on the summit, please see [http://www.ntia.doc.gov/ntiahome/frnotices/2006/continuitysummit_082206.htm]. The meeting is open to the public and press on a first-come, first-served basis. The meeting is physically accessible to persons with disabilities, and special services such as sign language interpretation and ancillary aids are available with prior notice.


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  • Newsletter Info

    Center for Advanced Communications Policy
    Telecom/IT Policy Highlights Volume 6.07
    August 2006
    Nathan W Moon, Editor

    Telecom/IT Policy Highlights presents legislative, regulatory, legal, and other items of interest pertinent to information, telecommunications, and related technology policy and research. For additional information regarding the information provided in this report, or if there are newsworthy items that should be included in future editions, please contact , Research Specialist , or , Director of Research and Editor in Chief.
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