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Telecom/IT Policy Highlights

Volume: 7.09
November 2007

Microsoft Word version / November, 2007 TiPH (186kB)

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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

    As the thousands of bills introduced in Congress over the past few months are taken up by the committees charged with their consideration, some of them are now making it to the floors of their respective chambers for votes. Two such bills are the “Broadband Census of America Act of 2007” and the “911 Modernization and Safety Act of 2007,” both of which were passed overwhelmingly by the House this month. They now go to the Senate for consideration, and may become law if passed there and approved by the President. At the same time, lawmakers in both houses have introduced legislation to promote telework programs within federal agencies.

    The Federal Communications Commission (FCC) held its regular Open Meeting on November 27, 2007. Chairman Kevin Martin had planned to call for greater regulation of cable video service providers, but was compelled to remove the item from the agenda when three of the five commissioners expressed doubts about the measure. Nevertheless, the FCC did adopt its Report to Congress on the state of competition in the video services industry, and it took the unusual step of ordering cable service providers to give the FCC data that will enable it to determine whether additional regulation of the cable industry is necessary. In addition, the FCC also undertook rulemakings this past month on such issues as low power FM radio and telehealth/telemedicine.

    A report by the Organization for Economic Cooperation and Development (OECD) ranking the U.S. 15th among member nations in broadband penetration suggests that deployment of such services remains an important issue. In another story, TIPH continues a discussion begun last month about the future of wireless broadband technologies such as WiMAX, especially as mobile wireless providers begin looking beyond current third generation (3G) services.


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  • Legislative Activities

    “Broadband Census” Bill Passes in House, Senate to Consider

    11.14.2007 – In a voice vote, the House of Representatives passed the “Broadband Census of America Act of 2007” [H.R. 3919]. Introduced by House Commerce Committee chairman Ed Markey (D-MA) in October, the proposed legislation addresses the issue of mapping broadband deployment throughout the United States. Among its provisions, the bill calls for the FCC to conduct an annual assessment and report to the public on the nature and deployment of, and subscription to, broadband service capability throughout the states, including information comparing the extent of broadband service capability in other countries. In addition, the bill would require the National Telecommunications and Information Administration (NTIA) to publish an online broadband inventory map.

    In total, the bill would provide $335 million over three years. In order to gather necessary information for a broadband census and map, the proposed legislation would provide $20 million per year for three years to undertake broadband mapping. At least $15 million of that amount would be allocated for grant programs to the states and non-profit organizations. The remaining $275 million would go toward a grant program to be run by NTIA. The bill would also provide grants for demand-side broadband service identification and assessments, as well as call for a consumer survey of broadband service capability.

    For a copy of the bill that passed the House and is now under consideration in the Senate, please see [http://thomas.loc.gov/cgi-bin/query/F?c110:4:./temp/~c110Zv69VH:e183:]. [Sources: Library of Congress, House Commerce Committee, CTIA, and Verizon]

    Emergency Communications Bill Passes House, Sent to Senate

    11.14.2007 – The House of Representatives passed the “911 Modernization and Safety Act of 2007” [H.R. 3403], a bill that would require interconnected Voice over Internet Protocol (VoIP) service providers to provide 911 and Enhanced 911 (E-911) services. The proposed legislation was introduced in August by Rep. Bart Gordon (D-TN). After receiving the approval of the House Commerce Committee on November 13, the bill was sent to the full House later that day, where it passed by a vote of 406 to 1. The following day, the bill was referred to the Senate and will now be considered by the Senate Commerce Committee.

    The FCC required VoIP service providers to ensure 911 and E-911 services in a 2005 rulemaking. By amending the Wireless Communications and Public Safety Act of 1999 and Communications Act of 1934 to require that VoIP providers give the same emergency service as local exchange carriers, the proposed legislation would affirm, revise, and further define this legal framework. In addition to imposing these rules on VoIP service providers, the bill would amend the National Telecommunications and Information Administration Organization Act to require grants for migration to an IP-enabled emergency network. This legislation would require the E-911 Implementation Coordination Office to develop a national plan for migrating to a national IP-enabled emergency network.

    For a copy of the bill that passed the House and went to the Senate, please see [http://thomas.loc.gov/cgi-bin/query/D?c110:4:./temp/~c110fQ2RMg::]. [Source: Library of Congress]

    Federal Telework Bills Introduced in House, Considered in Senate

    11.07.2007 – Rep. Danny Davis (D-IL) and six cosponsors have introduced the “Telework Improvements Act of 2007” [H.R. 4106], a bill to promote federal programs in agencies within the executive branch. If passed into law, the proposed legislation would allow employees in federal executive agencies to telework at least 20 percent of their hours every two administrative workweeks, so long as it can be achieved “without diminishing employee performance or agency operations.” While the bill is designed to increase teleworking among federal employees as much as possible, there would be exemptions for employees with "daily access to classified information" and with responsibilities that "require daily face-to-face contact with members of the public or other persons, or the use of equipment, at the employee's regular place of employment.” After its introduction, the bill was referred to the House Oversight and Government Reform Committee for review.

    Davis’s bill is only the latest to be considered in Congress. On November 14, the Senate Committee on Homeland Security and Governmental Affairs favorably reported a telework bill introduced by Sen. Ted Stevens (R-AK). The “Telework Enhancement Act of 2007” [S. 1000] would enhance the Federal Telework Program by requiring the head of each executive agency, the Chief Justice, the Speaker of the House of Representatives, and the Majority Leader of the Senate to: 1) establish a policy under which federal employees shall participate in telework to the maximum extent possible without diminishing employee performance or organizational operations; and 2) appoint a Telework Managing Officer. Stevens’s bill also makes provision for exceptions, but it is designed to further expand telework in the federal government. Furthermore, it would require the head of each executive agency to ensure that: 1) telework training is incorporated in the agency's new employee orientation procedures; and 2) periodic employee reviews are conducted for all employees to ascertain whether telework is appropriate for the employee's job description and the extent to which it is being utilized by the employee. If passed into law, the Act would also provide for the publication of an annual report rating each entity’s policy and participation.

    Finally, on November 1, the House Judiciary’s Subcommittee on Commercial and Administrative Law held a hearing on the “Mobile Workforce State Income Tax Fairness and Simplification Act of 2007” [H.R. 3359]. Introduced by Rep. Henry C. “Hank” Johnson, Jr. (D-GA), the bill would limit the authority of states to tax teleworkers for work they performed in other states.

    For a copy of the House telework bill, please see [http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.4106:]. The Senate bill may be found at [http://thomas.loc.gov/cgi-bin/query/z?c110:S.1000:]. Finally, the telework tax bill can be accessed at [http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.3359:]. [Sources: Library of Congress, House Oversight and Government Reform Committee, Senate Committee on Homeland Security and Governmental Affairs, and House Judiciary Committee]

    Media Localism, Diversity, and Ownership Focus of Senate Hearing

    11.08.2007 – The Senate Commerce Committee held a hearing entitled “Localism, Diversity, and Media Ownership,” on November 8th, 2007. The hearing focused on issues related to media consolidation, pending proposals to change the Federal Communications Commission’s media ownership rules, and government efforts to promote localism and diversity in the media marketplace.

    In addition to comments by chairman Daniel Inouye (D-HI) and vice chairman Ted Stevens (R-AK), the Senate Commerce Committee also heard the testimony of Alex Nogales, president and CEO of the National Hispanic Media Coalition; Jim Goodmon, president and CEO of Capitol Broadcasting Company; Tim Winter, president of the Parents Television Council; Frank Blethen, publisher and CEO of The Seattle Times; and John Lavine, dean of the Medill School at Northwestern University. The statements of these witnesses, as well as Senators Inouye and Stevens, may be accessed at [http://commerce.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=1914]. In addition, the website contains a link to an archived webcast of the hearing. [Source: Senate Commerce Committee]


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  • Policy / Regulatory Activities

    Broadband Telehealth Services Initiative Launched by FCC 11.19.2007 – The FCC has adopted and released an Order [FCC 07-198] that provides $417 million for the construction of 69 statewide or regional broadband telehealth networks in 42 states and 3 territories under the Rural Health Care Pilot Program (RHCPP). This initiative is designed to serve rural areas of the nation, where the provision of both broadband and medical services continue to be areas of concern. Isolated clinics in these parts of the country will be able to utilize advanced communications technologies to draw upon the expertise of modern urban medical centers. Telehealth and telemedicine services provide physicians and patients in rural America with access to medical specialists, such as cardiologists, pediatricians, and radiologists, who otherwise may be unavailable. In addition, telemedicine programs allow intensive care physicians and nurses to monitor critically-ill patients remotely, and allow specialists and mental care professionals to extend the range of their practices by hundreds of miles by reaching patients in different rural areas.

    The FCC’s RHCPP is designed to support the connection of more than 6,000 public and non-profit health care providers nationwide to broadband telehealth networks. Participants in this pilot program include hospitals, clinics, universities and research institutions, behavioral health sites, correctional facility clinics, and community health centers. The Commission intends that the networks will allow for a more efficient delivery of services, reduction of costs and travel time for consumers, decreases in medical errors, and enable the sharing of important information among health care providers. Additionally, the program is intended to further rapid and coordinated responses to public health emergencies such as pandemics and bioterrorism attacks by providing coordination between the U.S. Department of Health and Human Services, U.S. Centers for Disease Control, and other health officials.

    For a copy of the FCC’s Order, please see [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-198A1.txt] (MS Word and PDF versions also available). A list of selected participants in the program may be found at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-278260A2.txt]. [Source: FCC]

    Low Power FM Service Rules Adopted by Commission

    11.27.2007 – The FCC has adopted but not yet released its Third Report and Order and Second Further Notice of Proposed Rulemaking [FCC 07-204] regarding rules for low power FM (LPFM) radio service. The Commission has determined that LPFM “creates opportunities for new voices on the airwaves and to allow local groups, including schools, churches, and other community-based organizations, to provide programming responsive to local community needs and interests.” As such, the FCC seeks to protect the service and promote its long-term viability with this rulemaking.

    In its Order, the FCC addresses several issues. Most important, the Commission: 1) allows the transfer of LPFM licenses subject to significant limitations; 2) reinstates the rule that all LPFM authorization holders be local to the community and limits ownership to one station per licensee; 3) clarifies that repetitious, automated programming does not meet the local origination requirement; and 4) encourages voluntary time-sharing agreements between applicants.

    The FNPRM seeks comment on a number of issues, including technical rules that could potentially expand LPFM licensing opportunities. Furthermore, the FCC tentatively concludes that full service stations must provide technical and financial assistance to LPFM stations when implementation of a full service station facility proposal would cause interference to an LPFM station. The Commission also tentatively concludes that it should adopt a contour-based protection methodology to expand LPFM licensing opportunities. Finally, the FCC recommends to Congress that it remove the requirement that LPFM stations protect full-power stations operating on third adjacent channels.

    The FCC has adopted but not yet released this Third R&O and Second FNPRM. Deadlines for comments and reply comments will be made public once it is published in the Federal Register. [Source: FCC]

    Video Competition Report to Congress Adopted by FCC, “70-70 Test” at Issue

    11.27.2007 – The FCC has adopted its 13th Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, a Report to Congress [FCC 07-206] on the state of the industry. This year’s report covers the video services market for 2006, reporting on any significant changes and reporting on factors that have facilitated or impeded competition among rival providers. In its report, the FCC found that while competition in the delivery of video services, namely television programming, has provided consumers with increased choice, better picture quality, and greater technological innovation, prices that outpace the general level of inflation continue to be a persistent problem. In particular, the Commission identified that direct broadcast satellite (DBS) competition has not checked cable prices to the same extent as competition from wireline providers.

    Another key issue identified by the Commission is that of choice. Almost all consumers are able to obtain service through over-the-air broadcast television, one cable system, and at least two DBS providers. However, few consumers have a second wireline system from which to choose, such as an overbuild cable system. Local exchange carriers have expanded the areas where they provide facilities-based video services, and they typically partner with DBS providers to offer those services.

    In addition, the FCC reported on the so-called “70-70 test.” Section 612(g) of the Communications Act holds that when “cable systems with 36 or more activated channels are available to 70 percent of households within the United States” and when 70 percent of those households subscribe to them, “the Commission may promulgate any additional rules necessary to promote diversity of information sources.” In a previous report to Congress, the FCC found that the first prong had been met, and it suggested that the second prong may have been met also. Using data submitted by Warren Communications News, the FCC concluded that the second benchmark had been met at 71.4 percent. However, other data sources have not demonstrated that this prong has been met. As a result, the Commission has ordered each cable operator to submit the following information for 2006 within 60 days under penalty of perjury: 1) the total number of homes the cable operator currently passes; 2) the total number of homes the cable operator currently passes with 36 or more activated channels; 3) the total number of subscribers; and 4) the total number of subscribers with 36 or more activated channels.

    In addition to the Report to Congress, the FCC adopted an accompanying Notice of Inquiry [FCC 07-207]. In its NOI, the Commission solicits comment and information for the 14th Annual Video Competition Report. In particular, it would like information that will permit the Commission to compare video distribution alternatives available to consumers and to evaluate competition in the video marketplace and the factors that have facilitated or impeded competition. The FCC has adopted but not yet released the Report to Congress and NOI. They will be available soon at [http://www.fcc.gov/mb/]. [Source: FCC and USA Today]


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  • Judicial Activities

    Telecom Case Not Eligible for Federal Review, Court Rules

    10.31.2007 – The U.S. Court of Appeals for the Fourth Circuit delivered its opinion in Time Warner v. Carteret-Craven [No. 06-1974], a case involving the right of electrical utilities to set rates for pole attachments by telecommunications companies. At issue in this case was the application of the federal Pole Attachments Act [47 U.S.C. § 224], which directs the FCC to regulate the rates and terms of pole attachments and ensure that costs and conditions of their use are reasonable. A pole attachment includes any attachment, such as an antenna, by a cable company or telecommunications provider to a pole, duct, conduit, or right-of-way owned or controlled by a utility. Time Warner is a cable company providing service in North Carolina. As part of the provision for that service, it sought an agreement with Carteret-Craven Electrical Membership Corporation for the right to place cable attachments on the electrical cooperative’s power poles. Carteret-Craven demanded from Time Warner a fee of $20 per pole, which is far above the rate set by the FCC. However, the Pole Attachments Act exempts electrical cooperatives such as Carteret-Craven EMC, and Time Warner had no recourse under the federal law. Instead, Time Warner filed suit in U.S. District Court alleging both violation of a North Carolina statutory duty imposed on electric cooperatives to charge only reasonable and nondiscriminatory rates, and a North Carolina common law duty as an electric utility to charge only reasonable and nondiscriminatory rates. Federal jurisdiction for this case was based upon diversity of citizenship.

    The District Court dismissed the case for failure to state a claim. Time Warner then appealed the matter to the Court of Appeals. As a federal court asked to exercise diversity injunction over a state law claim, the Court declined to extend state common law in this matter, effectively ruling for Carteret-Craven. However, the Court of Appeals expressed sympathy with Time Warner’s position, and noted that it was an explicit mandate by Congress to excuse cooperatives from the Pole Attachment Act that formed the basis of its opinion. As a result, the Court recommended that Time Warner either work toward a resolution through private negotiation or continue its case in the state courts. [Source: 4th Circuit Court of Appeals]

    Vonage Ordered to Pay Verizon in Patent Dispute after Denial of Appeal

    11.15.2007 – The U.S. Court of Appeals for the Federal Circuit has denied VoIP service provider Vonage’s request for an appeal in a patent dispute case with Verizon. Because the Court of Appeals refused to hear the case, Vonage is now expected to pay $120 million to settle the patent dispute. Of that amount, $117.5 million will go to Verizon, while the remainder will be given to charities. Following the settlement, Vonage has settled other patent disputes with Sprint Nextel and AT&T. While Vonage has had to pay out large sums to these companies, the settlements have been good for the VoIP provider as well. Vonage’s stock prices doubled, due in large part to the agreements. However, an ongoing low stock price reflects lingering concerns for the provider. Despite the recent patent settlements, Vonage faces broader strategic challenges as cable companies roll out their own digital phone services and consumers increasingly opt for cell phones in lieu of landlines. [Sources: CNN and Associated Press]


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  • Studies / Reports

    United States Ranked 15th in Broadband Penetration, Study Finds

    11.06.2007 – The Organization for Economic Cooperation and Development (OECD) released its latest report on broadband deployment among its member nations. The report found that the United States is the largest broadband market in the OECD, with 66.2 million subscribers and accounting for 30 percent of all broadband connections in the OECD. However, the report ranked the U.S. 15th in terms of deployment and penetration, having only 22.1 broadband subscribers per 100 people. Conversely, Denmark, the Netherlands, Switzerland, and South Korea lead the OECD in broadband penetration, each having at least 29 subscribers per 100 inhabitants. The report focused on four other issues besides penetration and deployment: 1) usage, 2) coverage, 3) prices, and 4) services and speeds. In the area of pricing, Japan, France, Sweden, Korea, and Finland offered the least expensive service per Megabit. The United States ranked 18th in this category. Regarding average advertised broadband download speed, in Megabits, Japan, France, South Korea, Sweden, and New Zealand topped the list, while the United States ranked 19th.

    For a copy of the report and data, please visit the OECD’s website at [http://www.oecd.org/sti/ict/broadband]. [Sources: OECD]


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  • Other Activities and Items of Interest

    Sprint Nextel and Clearwire Dissolve WiMAX Partnership

    11.09.2007 – Sprint Nextel and Clearwire have announced that they are terminating their agreement to build a nationwide high-speed wireless network that would be based on WiMAX technology. The two companies had planned to reach almost 100 million customers next year with a network that promised to be much faster and have a wider range than wireless (Wi-Fi) networks currently in use. Sprint had committed up to $5 billion in spending for the project. The dissolution of the partnership is generally viewed as a bigger blow for Clearwire. The company has continued to lose money for the past three years, and its third-quarter sales totaled $41.3 million, less than 100th of Sprint's. Clearwire also reported a third-quarter loss of $328.6 million after spending more to attract customers. As for Sprint Nextel, it continues working with companies such as Intel, Motorola, and Nokia to develop devices that will work on a WiMAX network. The company’s capital spending in the third quarter included $73 million for the new wireless data network. [Sources: The Wall Street Journal and Bloomberg News]

    Verizon to Allow Free Choice of Phones and Applications

    11.27.2007 – In a reversal of its policies, Verizon Wireless announced that it would no longer restrict the types of cellphones that consumers could use on its networks. While customers of the nation’s second largest wireless provider must now choose from a list of approved phones, consumers will be able to use any phone that meets the carrier’s quality standards beginning next year. Verizon announced that details of the plan would be forthcoming. The plan does not necessarily mean that all cellphones will work with Verizon’s network, as carriers use different technologies to power their networks. For example, Apple’s recent iPhone, built for AT&T’s network, will be incompatible with Verizon’s system. However, experts believe that in the long-term, such a move will lead to greater consumer choice, suggesting that an open network may encourage more manufacturers, and even hobbyists, to build phones for its network. Verizon has announced the development of a $20 million testing lab to verify that these new products will meet company standards. [Sources: New York Times, USA Today, Verizon Wireless, and FCC]


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  • Upcoming Events

    DTV Consumer Education Workshop

    12.04.2007 – The FCC will hold its second of two workshops designed to address the needs of communities identified as likely to be disproportionately affected by the digital television (DTV) transition and least aware of it. This workshop will focus on issues related to ensuring that minority and non-English speaking consumers are prepared for the DTV transition.

    The workshop will be held on December 4, 2007, from 9:00 a.m. to 12:15, at FCC Headquarters, 445 12th Street, SW, Washington, D.C., in the Meeting Commission Room. In addition the workshop will be broadcast live from the FCC’s website, on a first come, first served basis by accessing [http://www.fcc.gov/realaudio/#dec4]. A complete agenda for the workshop may be found at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-278430A1.txt] (MS Word and PDF formats also available). Reasonable accommodations will be provided for this event, and interested parties may contact Pam Slipakoff at (202) 418-7705 or [pam.slipakoff@fcc.gov], or Lauren Patrich at (202) 418-7944 or [lauren.patrich@fcc.gov] for more information. [Source: FCC]

    Senate Commerce Comment Hearing on FCC Oversight

    12.13.2007 – The Senate Commerce Committee will hold its regular oversight hearing of the FCC. All five commissioners are expected to be witnesses at the hearing, and they will report to the Committee and answer questions on media and telecommunications policy. The meeting is scheduled to take place on Thursday, December 13, 2007, at 10:00 a.m., in Senate Room 253 of the U.S. Capitol in Washington, D.C.

    Additional details about the hearing are forthcoming, including a webcast. In the meantime, information may be found at [http://commerce.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=1920].


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  • Newsletter Info

    Center for Advanced Communications Policy
    Telecom/IT Policy Highlights Volume 7.09
    November 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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