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Telecom/IT Policy Highlights

Volume: 7.06
July/August 2007

Microsoft Word version / July/August, 2007 TiPH (175kB)

PDF version / July/August, 2007 TiPH (109kB)

Overview

Legislative Activities

Policy / Regulatory Activities

Judicial Activities

Studies / Reports

Other Activities and Items of Interest

Upcoming Events

Newsletter Info

Overview
In this special summer edition of the TIPH, we call attention to legislative efforts on Capitol Hill to address telecommunications issues. Of particular interest to lawmakers this season has been the funding of public safety communications through such bills as the "Public Safety Interoperability Implementation Act," introduced in the House of Representatives. The needs of consumers have also garnered the attention of lawmakers. Bills such as the "Broadband Data Improvement Act," introduced in the Senate, reflect an interest among some lawmakers to ensure that consumers have access to a competitive broadband industry and that broadband penetration remains an important issue for policymakers and service providers alike. Finally, some older issues persist, such as the development of community broadband programs. Legislation such as the "Community Broadband Act," introduced in both the House and Senate, recall similar legislative efforts from last season that were not passed into law.

Regulatory agencies appear to share some of the same concerns as lawmakers. The FCC continues with its rulemaking to ensure that the 700 MHz band will fulfill mandates to provide the country with a nationwide, interoperable communications network for public safety. The NTIA is also interested in providing assistance to the states through its Public Safety Interoperable Communications (PSIC) Grant Program. Although the efforts of policymakers have been taken up with emergency communications, the FCC remains engaged with telecommunications issues affecting consumers. Among these is a rulemaking designed to improve provision of long distance telephone service. Likewise, the courts have also handed down rulings during the summer that will impact consumers' rights to litigate against telecommunications service providers.

Mirroring the efforts of some lawmakers to address community broadband initiatives, AT&T has launched its first municipal wireless project in Riverside, California. Meanwhile, Sprint and partner Google have taken a different approach to providing the public with Internet access via plans to develop WiMax networks in several U.S. cities later this year.

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Legislative Activities
Broadband Data Bill Approved by Senate Commerce Committee
07.19.2007 - The "Broadband Data Improvement Act" [S. 1492] was approved by the Senate Commerce Committee on July 19, 2007. Introduced by Senate Commerce Committee Chairman Daniel Inouye (D-HI) and 11 other senators on May 24, 2007, the bill would direct the Federal Communications Commission (FCC) to reconsider its definitions and collection of data on broadband services. At issue is whether there exists sufficient competition in the broadband services market. Broadband service providers have frequently argued that the market is competitive enough, citing periodic FCC reports to support their claims. They are opposed by the supporters of the bill who argue that the FCC's data collection efforts are inadequate, resulting in an exaggeration of the availability of broadband services and competition among providers.

If passed, the Broadband Data Improvement Act would require the FCC to revise its definition of broadband to include a definition of second generation broadband that reflects a data rate capable of transmitting full-motion, high-definition video. In addition, the bill would mandate the Commission to report broadband connections and second generation broadband connections by 5-digit ZIP Code, plus the 4-digit location code. Current reporting by the FCC only considers the larger 5-digit ZIP Code when determining broadband deployment. The bill would require the FCC to report its findings annually, rather than "periodically," as currently mandated by the Telecommunications Act of 1996, as well as commission several other studies into the matter.

Finally, the bill proposes the establishment of a State Broadband Data and Development Grant Program. This initiative would provide funding for the development and implementation of statewide programs to identify and track the availability of broadband services within each state. For a copy of the bill, please see [http://thomas.loc.gov/cgi-bin/query/z?c110:S.1492:]. [Source: Library of Congress]

Community Broadband Acts Introduced in Senate, House
07.23.2007 - Sen. Frank Lautenberg and six co-sponsors have introduced the "Community Broadband Act" (S. 1853), which is described by its sponsors as a bill "to promote competition, to preserve the ability of local governments to provide broadband capability and services," among other things. Lautenberg had introduced a bill into the Senate with the same name during its last session, but it never became law.

The proposed legislation would prevent any state or local government from prohibiting a public provider, such as a municipality, from offering advanced telecommunications or broadband services. At the same time, the bill would prevent municipalities from discriminating against competing private providers of those services. In short, the legislation attempts to balance the efforts of municipal governments to offer public broadband services to their citizens, while ensuring that companies are still able to compete in providing those same services. As Sen. Ted Stevens (R-AK), one of the sponsors of the bill noted, "This measure will encourage public-private partnerships to make it easier for municipalities, cities, and towns across the nation to offer affordable broadband access to their residents."

On August 1, 2007, Reps. Rick Boucher (D-VA) and Fred Upton (R-MI) introduced the "Community Broadband Act" (H.R. 3281) in the House of Representatives. Bearing the same name as the Senate legislation, Boucher and Upton's bill would also mandate that no state or local government prohibit any public entity from providing advanced telecommunications or broadband services. As a safeguard, the bill would also enjoin public entities such as municipal governments from giving themselves regulatory preference or inhibit the provision of service by private providers.

For a copy of the Senate bill, please see [http://thomas.loc.gov/cgi-bin/query/z?c110:S.1853:]. A copy of the House bill is available at [http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.3281:]. [Sources: Library of Congress, Senate Commerce Committee]

Public Safety Communications Funding Bill Introduced in House
07.19.2007 - Reps. Bart Stupak (D-MI), Vito Fossella (D-NY), Eliot Engel (D-NY), and Frank Pallone, Jr. (D-NJ) have introduced the "Public Safety Interoperability Implementation Act" (H.R. 3116) into the House of Representatives. The proposed legislation would create a permanent grant program for public safety communications and emergency communications equipment interoperability.

On July 18, 2007, the National Telecommunications and Information Administration (NTIA) announced $968 million in Public Safety Interoperable Communications (PSIC) grants that would support emergency communications. Rep. Engel has contended that the one-time grants are inadequate and that other measures are necessary to fund emergency communications. As a result, the proposed bill would establish a trust fund to continuously fund public safety communications through the auction of broadcast spectrum, which is expected to generate billions of dollars of revenue for the federal government.

The "Public Safety Interoperability Implementation Act" was introduced and then sent to the House Commerce Committee for further review. If approved, it will go the floor of the House for a full vote. For a copy of the bill, please see [http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.3116:]. (Sources: Library of Congress, Rep. Eliot Engel)

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Policy / Regulatory Activities
Long Distance Service Rules Revised by FCC
08.31.2007 - The FCC adopted and released a Report & Order and Memorandum Opinion & Order [FCC 07-159] designed to govern the provision of in-region, long distance services by the Bell Operating Companies (BOCs) and their independent incumbent local exchange carrier (incumbent LEC) affiliates. Previously, BOCs were required to separate their local telephone and long distance service operations. However, the FCC has found that these requirements were at odds with a marketplace where phone companies now bundle local and long distance service as a means of providing consumers with the best service options. In response, the Commission has decided to replace "those more burdensome regulations with less intrusive measures that protect important customer interests while allowing the BOCs and their independent incumbent LEC affiliates to respond to marketplace demands efficiently and effectively." In exchange for the FCC's relaxed regulations on these telephone service providers, the BOCs have committed to providing special rate plans for consumers, such as those who make relatively few long-distance calls, for three years. In addition, the BOCs will provide subscribers to bundled single-rate local/long distance plans adequate information regarding their monthly usage in order to ensure such consumers can make informed choices concerning their options for making long distance calls. The Commission adopted these commitments as conditions of the new regulatory framework.

For a copy of the FCC's R&O and MO&O, please see [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-159A1.txt] (MS Word and PDF versions also available). [Source: FCC]

Public Safety Communications and Wireless Broadband Rules Revised by FCC
07.31.2007 - The FCC adopted and released its Second Report & Order [FCC 07-132], which revises the 700 MHz band plan and service rules to promote the creation of nationwide interoperable broadband network for public safety and to facilitate innovative wireless broadband services for consumers. The broadcast spectrum between 698-806 MHz, commonly called the "700 MHz band," will be vacated when the digital television transition is completed on February 17, 2009. During the past months, the FCC has directed much of its efforts toward the reallocation of this spectrum for public safety uses.

The Commission's Second R&O clarifies the uses of this bandwidth, focusing mainly on balancing its emergency applications with efforts to provide American consumers with new and innovative wireless services. The Second R&O has two major components to fulfill these goals. First, it establishes a framework for a 700 MHz Public Safety/Private Partnership between the licensee for one of the commercial spectrum blocks and the licensee for the public safety broadband spectrum. As part of the Partnership, the commercial licensee will build out a nationwide, interoperable broadband network for the use of public safety. The Public Safety Broadband Licensee will have priority access to the commercial spectrum in times of emergency, and the commercial licensee will have preemptible, secondary access to the public safety broadband spectrum. Many national and local public safety organizations have expressed support for a public safety/private partnership approach.

Second, the FCC made several changes to the rules governing the commercial services portion of the 700 MHz Band, which are designed to promote broadband competition and the development of innovative wireless services for consumers. Most notably, the FCC determined that licensees for one of the spectrum blocks to be auctioned - the large, 22-megahertz Upper 700 MHz C Block - will be required to provide a platform that is more open to devices and applications.

For a copy of the FCC's Second Report & Order, please see [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-132A1.txt] (MS Word and PDF versions also available). A separate copy of the band plan chart for the 700 MHz band is available at [http://www.fcc.gov/073107/700mhz_band_plan_chart_073107.pdf] (PDF only). [Source: FCC].1

Roaming a Common Carrier Obligation for Commercial Mobile Radio Service
08.07.2007 - The FCC has adopted and released a Report & Order and Further Notice of Proposed Rulemaking [FCC 07-143] affirming that Commercial Mobile Radio Service (CMRS) providers have an obligation to provide automatic roaming to their customers. Automatic roaming allows roaming mobile telephone customers to place calls as they do in their home coverage area, by simply entering a phone number and pressing "send" on their devices. The FCC's decision to clarify this obligation is based on Sections 201 and 202 of the Communications Act of 1934, which holds that CMRS carriers to provide roaming services to other carriers upon reasonable request and on a just, reasonable, and non-discriminatory basis.

The FCC's rulemaking applies to real-time, two-way switched voice or data services that are interconnected with the public switched network and utilize an in-network switching facility that enables the provider to reuse frequencies and accomplish seamless hand-offs of subscriber calls. In addition, automatic roaming obligations are also extended to "push to talk" wireless and text messaging services. The FCC is seeking comment on whether the roaming obligation should be extended to services that are classified as information services or to services that are not CMRS.

Please see [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-143A1.txt] for a copy of the Commission's R&O and FNPRM (MS Word and PDF formats also available). The FCC is accepting comments for its FNRPM. Comments will be due 60 days after publication of the Notice in the Federal Register; reply comments will be due 90 days after publication. [Source: FCC]

Universal Service Fund Protections Adopted by FCC
08.29.2007 - The FCC has adopted and released a Report & Order [FCC 07-150] that includes several measures to safeguard the Universal Service Fund (USF) from waste, fraud, and abuse. At issue are the Commission's debarment rules, which prohibit parties convicted of criminal violations or found civilly liable for such acts from receiving funds for the USF's programs. Previously, the FCC's debarment rules only applied to bad actors in connection with the E-Rate program. The Commission's latest rulemaking extends those rules to include the High Cost, Low Income, and Rural Healthcare programs.

In addition, the FCC has taken steps to strengthen oversight of the USF contributions and filing process by requiring timely filing and payment and increasing penalties for late filing and late payment. Audit requirements for the USF have been tightened through the Commission's decision to impose document retention rules on all USF programs and program contributors. Finally, the FCC has adopted a number of performance measures to improve management and administration of the USF program, including a recommendation of the Government Accountability Office (GAO) to implement performance measures for the four USF programs and the Administrator.

A copy of the R&O is available at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-150A1.txt] (MS Word and PDF versions also available). [Source: FCC]

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Judicial Activities
Arbitration Agreements, Clauses Focus of Two Court Rulings
08.17.2007, 08.23.2007 - Two separate cases in federal courts have taken up the issue of the arbitration agreements and clauses often inserted into contracts for telecommunications services. The courts were divided on how these agreements affect consumers of these services.

In the first case, Shroyer v. New Cingular Wireless Services and AT&T [No. 06-55964], the Court of Appeals for the Ninth Circuit ruled that the mandatory arbitration clause in a standard cell phone contract is "unconscionable, and therefore, unenforceable." Kennith Shroyer filed a complaint in California state court against Cingular and AT&T, alleging unfair competition and misleading advertising, among other things. When Shroyer obtained service, he signed a contract that includes a binding arbitration clause, and a waiver of class action rights. Because of the contract, Cingular removed the action to U.S. District Court, under the Class Action Fairness Act of 2005. The company also sought to compel arbitration with the plaintiff, and the District Court granted the motion. In response, Shroyer appealed the District Court's decision. The Court of Appeals found in favor of Shroyer and reversed the District Court's ruling. It found that the issue was a state matter and that under California law the mandatory arbitration clause is unconscionable, and hence, unenforceable.

In the second case, Anderson v. Comcast [Nos. 06-2165, 06-2203], the Court of Appeals for the First Circuit addressed a class action plaintiff's efforts to avoid the arbitration provisions in Comcast agreements with it customers. The Court found that the action is subject to arbitration, and sent most, but not all, of the issues regarding the arbitration agreement to the arbitrator. However, the Court of Appeals determined that the agreements' one year limitation period was invalid.

For a copy of the Ninth Circuit Court of Appeals ruling, please see [http://www.ca9.uscourts.gov/ca9/newopinions.nsf/D8524371EDD4FDAB8825733A004BEA0C/$file/0655964.pdf?openelement] (PDF only). A copy of the First Circuit Court of Appeals' opinion may be found at [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=06-2165.01A] (MS Word and PDF formats also available). [Sources: 9th Circuit Court of Appeals, 1st Circuit Court of Appeals]

District Court Rules on Spectrum Usage Rights
08.29.2007 - The U.S. District Court for the District of Columbia has issued its opinion in Nextel Spectrum Acquisition Corporation v. Hispanic Information and Telecommunications Network [Civil Action No. 07-543]. At issue was a contract dispute involving the usage rights to unused spectrum in the 2.5 GHz band, currently held by the Hispanic Information and Telecommunications Network (HITN) in the Washington, D.C. area. In October 2006, HITN entered into an agreement with Clearwire, a provider of wireless broadband Internet service. Under the agreement, Clearwire would lease spectrum from HITN to expand its subscriber base.

However, Nextel Spectrum Acquisition Corporation (Nextel SAC) also had an agreement with HITN involving this same spectrum. In February 2007, the contract between these two parties had expired, but the agreement included a further two year right of first refusal provision. Nextel SAC claimed that although the contract had expired, its right of first refusal was still effective, and had been breached, by the October 2006 agreement between HITN and Clearwire. As a result, Nextel SAC filed suit against HITN, alleging breach of contract.

In its opinion, the District Court found that Nextel SAC had never actually used any of the contested spectrum for actual broadcasting, thus concluding that the company's interest has been "to control the asset in an extremely competitive market." Finding that Nextel SAC was unable to state a claim upon which relief could be granted, the District Court dismissed the complaint against HITN. In short, HITN and Clearwire emerged as the victorious parties in the suit.

For a copy of the District Court's ruling in this case, please see [https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2007cv0543-18] (PDF only). [Source: D.C. District Court]

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Studies / Reports
Media Ownership Studies Released by FCC, Comments Sought
07.31.2007 - The FCC released ten studies on media ownership, conducted by outside researchers and Commission staff, which are intended to inform the FCC's comprehensive review of its broadcast ownership rules. The studies focus on three important policy goals of the broadcast ownership rules: diversity, competition, and localism. Among the studies released by the FCC, three involve the news; two examine radio ownership specifically; two involve minority and female ownership of broadcast media; and the others examine the ownership structure, vertical integration, and robustness of the media, particularly television. Visit the studies' website at [http://www.fcc.gov/ownership/studies.html] for more information.

The FCC is seeking comment on the ten studies it has released. Comments are due 60 days from the release of the FCC's Public Notice (by October 1, 2007), and reply comments are due 15 days after the deadline for initial comments (by October 16, 2007). All filings must be submitted in MB Docket No. 06-121. Pleadings sent via e-mail to the Commission will be considered informal and will not be part of the official record. Comments may be filed using, 1) the Commission's Electronic Comment Filing System (ECFS), 2) the Federal Government's eRulemaking Portal, or 3) by filing paper copies. For more information, please see the FCC's Public Notice at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-07-3470A1.txt] (MS Word and PDF versions available). [Source: FCC]

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Other Activities and Items of Interest
AT&T Launches Its First Municipal Wireless Project
07.09.2007 - AT&T, the nation's largest telecommunications carrier, has launched its first municipal Wi-Fi wireless project in Riverside, California. AT&T partnered with MetroFi, a leading provider of free wireless Internet access, to create the Riverside network, which utilizes Wi-Fi mesh technology deployed on city-owned power poles and other infrastructure. When fully deployed, AT&T Metro Wi-Fi in Riverside will be the nation's largest wireless project for both municipal and public use. The program plans to eventually cover 55 square miles of the city and provide free and paid subscription services to consumers and business users, as well as municipal wireless broadband services for the police and other departments.

AT&T's project is notable for the company's decision to utilize Wi-Fi technology as a complementary broadband delivery system alongside DSL and other means. In addition, AT&T's efforts stand in contrast to other carriers, including Verizon, who continue to oppose municipal Wi-Fi projects. [Source: Financial Times]

EarthLink Scales Back Municipal Wi-Fi Division
08.31.2007 - Despite the deployment of municipal Wi-Fi networks such as AT&T's in Riverside, some telecommunications providers are reducing their involvement in such projects. One notable case is that of EarthLink, which announced layoffs of 900 employees at the end of August. As part of its restructuring, EarthLink has also pulled out of contracts with several cities to develop and run municipal wireless programs. The company announced that it had terminated plans to develop networks in Houston and San Francisco. As a result of EarthLink's decision, other cities have cancelled or delayed municipal wireless projects. Among these are Chicago, which put its plans for a citywide Wi-Fi network on hold after the city failed to reach an agreement with AT&T and EarthLink, both of whom were bidding for the contract. Other EarthLink cities, such as Alexandria and Arlington, Virginia, and St. Petersburg, Florida, have also halted their plans for municipal wireless networks. /p>
Some observers have noted that many of the problems associated with municipal Wi-Fi programs are the results of unrealistic expectations. Experts have pointed to the unusually successful case of Philadelphia, which was the first major city to propose a network with EarthLink. In that agreement, EarthLink promised to pay $15 million to build the network and provide service over a 10 year period. In return, Philadelphia only had to provide access to city light poles and other structures to deploy the wireless radios; the city was not required to spend any money on EarthLink services. Other cities sought to follow Philadelphia's lead, but experts have observed that those municipalities failed to understand the complexities of how Philadelphia structured its costs. Another factor was Google's promise of delivering free Wi-Fi access through advertising that also led to cities' unrealistic expectations about developing low-cost or free networks. As companies such as AT&T and EarthLink begin scaling back their municipal Wi-Fi efforts, they are citing weak user demand and a need for local governments to provide additional levels of financial support for the projects. [Sources: Washington Post, CNET and BusinessWeek]

Sprint, Google to Partner in Creation of New WiMax Networks
07.27.2007 - Sprint Nextel Corporation has announced plans to develop networks based around WiMax technology, a wireless platform faster than, and generally considered the successor, to Wi-Fi technology. Under a revenue-sharing deal, Sprint would provide the WiMax technology, a wireless Internet connection for laptop computers and other portable devices that provide broadband over a range of miles, as opposed to Wi-Fi's range of several hundred feet. Google, in turn, would provide search capabilities and its applications, such as e-mail, instant messaging and online calendars, on Sprint's WiMax network.

Sprint reported that WiMax service would be available in Washington, Baltimore, and Chicago this year, with a nationwide debut sometime in the second quarter of next year. At the same time, Sprint has announced a 20-year partnership with Clearwire, a wireless Internet provider, to build the nationwide network to support the service. [Source: Washington Post]

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Upcoming Events
CTIA Wireless I.T. and Entertainment 2007 Conference
10.23.2007-10.25.2007 - CTIA: The Wireless Association will be hosting its annual Wireless I.T. and Entertainment Conference at the Moscone Center in San Francisco, California, from October 23-25, 2007. CTIA's fall trade show is billed this year as "One Show, Two Personalities," as it focuses on the emerging role wireless is playing in the enterprise and entertainment worlds. The show plans to highlight the integration of wireless data technologies into the enterprise through vertical business markets such as healthcare, government, automotive, and retail. At the same time, the show will spotlight the growth that has taken place in wireless entertainment, from music downloads to digital cameras to interactive games. CTIA's Wireless I.T. and Entertainment Conference is generally a well-attended trade event, attracting more than 15,000 attendees, 300 exhibitors, and more than 600 members of the media and analyst communities.

For more information on the conference, please visit the CTIA Wireless I.T. and Entertainment 2007 website at [http://www.wirelessit.com/].

FCC Public Hearing on Media Ownership in Chicago
09.20.1007 - The FCC will be holding its fifth of six field hearings on media ownership in Chicago, Illinois. The meeting is part of the Commission's efforts to involve the public in its Quadrennial Broadcast Media Ownership Review. There will be a period for public comment following panel discussions. Further details including names of the panelists will be released prior to the hearing. The public hearing is scheduled to take place on Thursday, September 20, 2007, from 4:00 p.m. to 11:00 p.m. The location will be at the Operation PUSH National Headquarters, 930 East 50th Street (at the corner of South Drexel Blvd.), Chicago, Illinois 60615.

The hearing is open to the public and seating will be available on a first come, first served basis. Open captioning and sign language interpreters will be provided for this event. Other reasonable accommodations for people with disabilities are available upon request. For more information about the meeting, please visit [http://www.fcc.gov/ownership]. For accommodation requests, please e-mail [fcc504@fcc.gov] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY). [Source: FCC]

PSIC Grant Program Technical Assistance Workshops
09.24.2007-10.01.2007 - The National Telecommunications and Information Administration (NTIA) is sponsoring four one-day PSIC Grant Program Investment Justifications Workshops, to be held during the last week of September and first day of October, 2007. The workshops will focus on the development of an Investment Justification for proposed interoperability projects of the NTIA's PSIC Grant Program. The Public Safety Interoperable Communications (PSIC) Grant Program is a one-time, formula-based, statutory match requirement grant program intended to enhance interoperable communications with respect to voice, data, and/or video. The workshop should be attended by all who plan to submit an Investment Justification for possible PSIC funding.

To register for these workshops, view the preliminary agenda, and receive further details, please visit the registration website at [https://event-wizard.com/secured/EWV3.01/Forms/Welcome.asp?ClientCode=psic-compasscom&Ecode=PSIC&lang=English]. (Source: NTIA)

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Newsletter Info

Center for Advanced Communications Policy

Telecom/IT Policy Highlights Volume 7.06
July/August 2007
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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Volume: 7.06 July/August 2007 Microsoft Word version / July/August, 2007 TiPH (175kB) PDF version / July/August, 2007 TiPH (109kB)

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Volume: 7.06
July/August 2007

Microsoft Word version / July/August, 2007 TiPH (175kB)

PDF version / July/August, 2007 TiPH (109kB)