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Telecom/IT Policy Highlights

Volume: 8.06
June/July 2008

Microsoft Word version June/July, 2008 TiPH (175kB)

Adobe PDF version June/July, 2008 TiPH (109kB)

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

    In this summer issue of the TIPH, we call attention to a number of important developments. The FCC has been particularly active during the past two months. Among its most notable actions are two rulemakings designed to improve access to the telecommunications system by people with disabilities. The Commission has also undertaken its second rulemaking as part of its efforts to implement the recently passed “Warning, Alert, and Response Network (WARN) Act,” which mandates a voluntary system for emergency alerts by mobile providers through the establishment of a Commercial Mobile Alert System (CMAS). Finally, the FCC took up an issue of interest to consumers by extending indefinitely registrations on the National Do-Not-Call Registry.

    In other developments, the House of Representatives passed the “Telework Improvements Act of 2008,” a bill to extend the use of telework within federal agencies. The bill has now been sent to the Senate for its consideration. The House Commerce Committee held a number of hearings on telecommunications policy this summer. Most important was a hearing that scrutinized the FCC’s forbearance process, as well as activity on a piece of proposed legislation, the “Protecting Consumers through Proper Forbearance Procedures Act,” designed to reform forbearance procedures. The courts took up a number of issues, as well, including cable carriage of digital television (DTV) programming and the FCC’s need to articulate the legal basis for its 2006 video franchising order.


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  • Legislative Activities

    Federal Agency Telework Bill Passed by House

    06.03.2008 – In a voice vote, the House of Representatives passed the “Telework Improvements Act of 2008” [H.R. 4106]. Introduced by Rep. Danny K. Davis (D-IL), along with nine other co-sponsors, the proposed legislation would require the head of each federal agency to establish a policy that allows authorized employees to telework at least 20 percent of the time during each two-week period. The proposed legislation would also require the General Services Administration, in consultation with the Office of Personnel Management, to help implement a telework policy by providing specific advice, assistance, and guidance to agencies. In response, every agency would also be required to appoint a telework managing officer, and the comptroller general would submit an annual report to Congress rating agencies on their telework practices.

    The bill received strong bi-partisan support in the House. Rep. John Sarbanes (D-MD), one of the bill’s co-sponsors, pointed to the U.S. Patent and Trademark Office (USPTO) and the Defense Information Systems Agency (DISA) as two leading agencies in the implementation of telework. He has suggested that they could provide good examples for other federal agencies seeking to develop more robust telework programs. Rep. Tom Davis (R-VA) has also publicly praised the bill. As a member of the House Oversight and Government Reform Committee, he observed that the version passed by the House includes stronger language regarding the protection of information being accessed through remote networks. This IT security language is important to reassure the general public that the government is taking necessary steps to make sure personal information is safeguarded as telework is increasingly implemented. Also, the marked-up version adopted by the House requires agencies to further integrate telework into their continuity of operations planning by making sure mission critical personnel are prepared to telework in the event of a major disaster. The bill has been referred to the Senate for consideration. For a copy of the bill that passed the House, please see [http://thomas.loc.gov/cgi-bin/query/D?c110:3:./temp/~c110jaR9uM::]. [Source: Library of Congress]

    Forbearance Procedures at FCC Subject of House Commerce Committee Hearing

    07.22.2008 – The House Commerce Committee held a hearing entitled “Issues in Telecommunications Competition,” which addressed the forbearance process at the FCC. Forbearance is a procedure by which the FCC chooses not to apply specific regulation to telecommunications carrier or service, or class or carriers or services. As stipulated by Section 160(a) of the Communications Act, forbearances may only be permitted if the Commission determines that 1) enforcement of such regulation or provision is not necessary to ensure that the charges, practices, classifications, or regulations by, for, or in connection with that telecommunications carrier or telecommunications service are just and reasonable and are not unjustly or unreasonably discriminatory; 2) enforcement of such regulation or provision is not necessary for the protection of consumers; and 3) forbearance from applying such provision or regulation is consistent with the public interest.

    The process of forbearance has become a matter of some debate, prompting such legislation as the “Protecting Consumers through Proper Forbearance Procedures Act” [H.R. 3914], which would reform the forbearance process. At the House Commerce Committee hearing on the matter, Chairman John Dingell (D-MI) expressed concern that current forbearance procedures allow agency actions to take effect without any formal vote or supporting record, meaning that consumers and companies may have no right or recourse when the lack of enforcement harms consumers. This position was countered by a number of telecom representatives who argued in their testimony for forbearance as one of the important tools created by Congress in the 1996 Act to ensure that outdated regulations no longer in the public interest are removed from use by the FCC.

    For more information on this hearing, please visit [http://energycommerce.house.gov/cmte_mtgs/110-ti-hrg.072208.TeleCompetition.shtml]. [Source: House Commerce Committee]


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  • Policy / Regulatory Activities

    Commercial Mobile Alert System Rulemaking Adopted by FCC

    07.08.2008 – The FCC adopted and released a Second Report and Order and Further Notice of Proposed Rulemaking (FCC 08-164) as part of its next steps in the establishment of a Commercial Mobile Alert System (CMAS). Such a system will allow commercial mobile service (CMS) providers to transmit emergency alerts to the public on a voluntary basis. The current R&O and FNPRM is part of a broader process to implement the 2006 Warning, Alert, and Response Network (WARN) Act.

    In this R&O, the FCC requires non-commercial educational (NCE) and public broadcast television stations to install equipment and technologies that will provide these licensees with the ability to enable the distribution of geo-targeted CMAS alerts to participating CMS providers. It also requires participating CMS providers to participate in required monthly testing and additional periodic testing of the interface between the Federal Alert Gateway and the participating CMS Provider Gateway. In the FNRPM portion of the rulemaking, the Commission seeks comment on whether the FCC should adopt rules that require NCE and public broadcast television station licensees and permittees to test the equipment that they are required to install, as well as how any such testing rules should be implemented.

    Comments will be due within 30 days after publication in the Federal Register, and reply comments will be due within 45 days of publication. For a copy of this Second R&O and FNPRM, please see [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-164A1.txt] (MS Word and PDF versions also available). [Source: FCC]

    “Do-Not-Call” Registrations to Be Honored Indefinitely, FCC Orders

    06.11.2008 – The FCC adopted and released a Report and Order (FCC 08-147) amending the Commission’s rules regarding the National Do-Not-Call Registry. The FCC now requires telemarketers to honor registrations indefinitely; the previous rules provided that registrations would expire after five years. This action is consistent with Congress’s mandate in the Do-Not-Call Improvement Act of 2007 [Pub. Law No. 110-187], which prohibits the removal of numbers from the Registry unless the consumer cancels the registration or the number has been disconnected and reassigned or is otherwise invalid. The Federal Trade Commission has already committed to retain numbers on the Do-Not-Call Registry indefinitely.

    For more information, please see the R&O at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-147A1.txt] (MS Word and PDF versions also available). [Sources: FCC and Library of Congress]

    Telephone Numbering, E-911 Requirements Adopted for Internet-Based TRS

    06.11.2008 – The FCC adopted and released a Report and Order and Further Notice of Proposed Rulemaking (FCC 08-151), which establishes new rules for providers of Internet-based Telecommunications Relay Services (TRS). These services, which include Video Relay Service (VRS) and Internet Protocol (IP) Relay, provide additional means for people with hearing, speech, and other communications disabilities to utilize telecommunications services. The Commission’s latest rules are designed to further ensure that Americans with disabilities have functionally equivalent access to the nation’s telecommunications system.

    The FCC first adopted a system to assign traditional ten digit telephone number systems to Internet-based TRS users, thus allowing these individuals to reach and be reached by hearing users of the traditional telephone system and other Internet-based TRS users simply by dialing a telephone number. Second, the FCC adopted rules to require providers to obtain and maintain the physical location of their users for the sake of emergency services. The rules also require automatic routing of emergency calls from Internet-based TRS users to appropriate emergency services authorities using such information. This obligation is similar to the one the Commission recently imposed on Voice over Internet Protocol (VoIP) service providers. Providers of Internet-based TRS services are required to comply with these new rules no later than December 31, 2008.

    In an accompanying FNPRM, the FCC seeks comment on related implementation issues, including, for example, the potential application of anti-slamming protections to protect relay consumers, and whether and to what extent the customer proprietary network information (CPNI) rules should apply to TRS providers.

    For more information, please see the R&O and FNPRM at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-151A1.txt] (MS Word and PDF versions also available). Comments will be due within 21 days after publication in the Federal Register, and reply comments will be due no later than 36 days after publication. [Source: FCC]

    Speech-to-Speech TRS Changes Considered by FCC, Comment Sought

    06.11.2008 – The FCC adopted and released a Notice of Proposed Rulemaking (FCC 08-149) seeking comment on proposed changes to TRS regulations, particularly Speech-to-Speech (STS) relay services. In particular, the Commission seeks comment on ways to improve the provision of STS, including, for example, whether to modify the minimum time period a communications assistant (CA) should be required to stay on a call, and ways to improve outreach associated with STS.

    In addition, the FCC has tentatively concluded that Internet Protocol STS (IP STS) services are eligible for compensation from the Interstate TRS Fund. The Commission seeks comment on its conclusion and several related matters, such as the appropriate compensation rate for IP STS, and whether it should be compensated at the same rate as STS.

    A copy of this NPRM may be found at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-149A1.txt] (MS Word and PDF formats also available). Comments are due no later than 30 days after publication of the NPRM in the Federal Register, and reply comments will be due within 45 days of publication. [Source: FCC]


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  • Judicial Activities

    Cable Carriage of DTV Programming at Issue in Court Filing by FCC

    07.18.2008 – The FCC filed its brief with the U.S. Court of Appeals for the District of Columbia Circuit in C-SPAN v. FCC (No. 08-1045), a case involving the Commission’s Third Report and Order (FCC 07-170) regarding mandatory cable carriage of digital broadcast television signals after the DTV transition. In that Third R&O, the FCC established a viewability requirement for cable providers and gave them the option to comply either by 1) carrying the digital signal in analog format, or 2) carrying in the signal only in digital format, provided that all subscribers have the necessary equipment to view the broadcast content.

    In February 2008, the C-SPAN network filed a petition for review of the FCC’s R&O. In its brief, the FCC contends that C-SPAN, The Discovery Channel, and other cable programming networks lack standing to challenge this Order, and that the Order is consistent with 47 U.S.C. §§ 534 and 535 and does not violate the First Amendment rights of the C-SPAN and the other petitioners.

    Oral arguments in this case are expected to take place on September 15, 2008. For a copy of the FCC’s brief, please see [http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-283828A1.pdf] (PDF only). [Sources: FCC and D.C. Circuit Court of Appeals]

    FCC’s Video Franchising Order Upheld by Court of Appeals

    06.26.2008 – The U.S. Court of Appeals for the Sixth Circuit issued its opinion in Alliance for Community Media v. FCC (Docket No. 07-3391), a case involving the FCC’s 2006 Order [FCC 06-180] on video franchising. In this case, the Court of Appeals found in favor of the FCC, upholding its rulemaking after a number of plaintiffs, including local franchising authorities (LFAs), groups representing LFAs, and the National Cable and Telecommunications Association (NCTA), brought suit.

    At issue were rules adopted by the FCC to reform the franchising process for local video services. At the time, authority for regulating franchising was not clearly defined, with federal, state, and local authorities all asserting some degree of jurisdiction in the process. New entrants, including telecommunications companies deploying and offering video, broadband and voice services over fiber optic cable, complained that some LFAs’ video franchising processes were outdated, and resulted in unreasonable delays and burdens for new entrants. The FCC concluded that process of getting franchises from some LFAs was unreasonably difficult, and amounted to unreasonable refusal to award a competitive franchise within the meaning of Section 621 of the Communications Act. In response, the FCC adopted new rules in 2006 governing the local franchising process. It established timing requirements for the award of franchises, established limits on build out requirements, limited franchise fees, and placed limits on public, educational, or governmental (PEG) access mandates. The FCC also preempted local laws, regulations, and requirements, to the extent they impose greater restrictions on market entry than the FCC's rules.

    For a copy of the Court of Appeals’ opinion, please see [http://www.ca6.uscourts.gov/opinions.pdf/08a0230p-06.pdf] (PDF only). [Sources: 6th Circuit Court of Appeals and FCC]

    Intercarrier Compensation Rules for ISP Bound Traffic at Issue in Court Case

    07.08.2008 – The U.S. Court of Appeals for the District of Columbia Circuit has issued its opinion in In Re: Core Communications, Inc. (No. 07-1446), issuing a petition for a writ of mandamus sought by petitioner Core Communications. The writ requires the FCC to articulate a valid legal justification for its rules governing intercarrier compensation for telecommunications traffic bound for internet service providers (ISPs) by November 5, 2008. If the Commission fails to provide the justification by the deadline, the writ would vacate these rules the day after. A writ of mandamus is a judicial order issued by a superior court to compel a lower court or government authority to perform mandatory or ministerial duties correctly.

    At issue in this case are the FCC’s rules regarding intercarrier compensation for telecommunications traffic bound for ISPs, first adopted in 1996 after the passage of the Telecommunications Act of 1996. The FCC ruled that local phone companies must compensate each other for handling each other's local calls, as well as establish reciprocal compensation arrangements for the transport and termination of telecommunications. Before broadband Internet connections became widely available, consumers generally gained access to the Internet through dial-up connections provided by local telephone companies. Under the dial-up method, a consumer uses a line provided by a local exchange carrier (LEC), often the incumbent local exchange carrier (ILEC), to dial the local telephone number of an Internet service provider (ISP), which then connects the call to the Internet. Typically, the ISP does not subscribe to the ILEC, but instead subscribes to a competitive local exchange carrier (CLEC) that interconnects with the incumbent. A customer who dials up to the Internet usually obligates an originating ILEC to transfer the call to a CLEC, which then delivers the call to the ISP. The plaintiff in this case, Core Communications, is a CLEC seeking legal justification for these rules.

    The Court of Appeals vacated the FCC’s first rules regarding this issue in 2000, remanding the FCC to change them. They were again challenged in the Court of Appeals in 2001. The following year, the Court of Appeals remanded but did not vacate the rules. However, the FCC has not addressed them, prompting the current request for a writ of mandamus. Expressing a great deal of criticism for the Commission in its ruling, the Court concluded that mandamus, under pain of vacatur, is an appropriate measure in this case.

    A copy of the Court of Appeals’ writ of mandamus may be accessed at [http://pacer.cadc.uscourts.gov/common/opinions/200807/07-1446-1126053.pdf] (PDF only). [Sources: D.C. Circuit Court of Appeals and FCC]


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  • Studies / Reports

    Cable Broadband, Impact on Economy Focus of NCTA Report

    06.12.2008 – The National Cable and Telecommunications Association (NCTA) released a report entitled “An Analysis of the Cable Industry’s Impact on the U.S. Economy.” The report notes that as of 2007, the cable industry had accounted directly and indirectly for 1.5 million U.S. jobs representing almost $62 billion in personal income. Furthermore, gross economic output attributable to the cable industry amounted to $227 billion, the report claimed.

    In assessing the role of the cable industry on broadband deployment and telecommunications competition in the United States, the report contends that the cable industry’s commitment to Internet services means that national broadband deployment is four percentage points higher than it would have been had cable’s commitment been reduced or delayed. The report also concludes that cable has furthered competition in the provision of local telephone service by obtaining almost 15 million customers by the end of 2007, adding over five million of them in the past year alone.

    For a copy of the NCTA report, please see [http://www.ncta.com/DocumentBinary.aspx?id=743] (PDF only). A copy of McSlarrow’s speech to the National Press Club may be found at [http://www.ncta.com/DocumentBinary.aspx?id=742] (PDF only). [Source: NCTA]

    FCC’s High Cost Subsidy Program Focus of GAO Report

    07.11.2008 – The Government Accountability Office (GAO) issued a report, “Telecommunications: FCC Needs to Improve Performance Management and Strengthen Oversight of the High-Cost Program,” which concerns one of the programs of the Universal Service Fund (USF). The High Cost program ensures that consumers in all regions of the nation have access to and pay rates for telecommunications services that are reasonably comparable to those services provided and rates paid in urban areas. Proponents of the program contend that residents of some areas of the country would have to pay significantly more for telephone services than those living in other areas because of factors such as dense terrain, low populations, or the high fixed costs of building a telecom network.

    The GAO report found that High Cost program’s structure has contributed to inconsistent distribution of support and availability of services across rural America; that is, “two carriers serving similar customers in similar environs can receive different levels of support, which can lead to different levels of telecommunications service across rural areas.” The report also noted that although this program only supports basic telephone service, the program also indirectly supports broadband service in some rural areas, particularly those areas served by rural carriers. Since rural carriers receive high levels of support, these carriers can upgrade their networks with new technologies, which often facilitate broadband service, in addition to basic telephone service. Since different carriers are treated differently, the high cost program's effect on broadband service in the rural areas varies. The GAO report concludes that although over $30 Billion has been spent on the high cost program since passage of the Telecommunications Act of 1996, the FCC has not established long-term or intermediate performance goals and measures.

    For a copy of the report, please see [http://www.gao.gov/new.items/d08633.pdf] (PDF only). [Source: GAO]

    Homeland Security’s Communications Disruptions Efforts Assessed by GAO

    06.26.2008 – The GAO also released a report entitled “Critical to Integrate Planning for and Response to Disruptions on Converged Voice and Data Networks.” Prepared for the House Homeland Security Committee, the report assesses efforts by the Department of Homeland Security (DHS) to integrate the activities of two of its divisions, the National Cyber Security Division (NCSD) and the National Communications System (NCS), as well as to prepare for and respond to disruptions on converged voice and data networks.

    The report concluded that DHS had taken the first of three necessary steps to achieve these goals by moving the operations center for communications infrastructure, NCC Watch, to office space adjacent to the center for data and applications, US-CERT. Completed in November 2007, this close proximity allows the approximately 41 coordination center analysts and 95 readiness team analysts to collaborate on planned and ongoing activities. However, the report found the DHS has not performed two other steps. It has not organizationally merged the two centers, nor has it invited key private sector critical infrastructure officials to participate in the operation of the proposed joint center.

    A copy of the GAO report may be found online at [http://www.gao.gov/new.items/d08607.pdf] (PDF only). [Source: GAO]

    Mixed Trends for Home Broadband Adoption, Pew Survey Finds

    07.01.2008 – The Pew Internet & American Life Project has released its latest report, “Home Broadband Adoption 2008.” Overall, the report found that home broadband adoption increased from 47 percent in March 2007 to 55 percent in April 2008. Broadband growth was particularly strong among older and lower-middle income Americans, as well as rural Americans. Among Americans 50 years and older, the growth rate in home broadband adoption from 2007 to 2008 was 26 percent. Meanwhile, Americans with household incomes between $20,000 and $40,000 annually experienced broadband penetration growth by 24 percent between 2007 and 2008. Also, rural Americans experienced a growth rate of 23 percent during the same time period.

    However, the report also noted that growth in broadband adoption was relatively flat, and even declining, among the poor and African Americans. Among Americans reporting household incomes of $20,000 or less, only 25 percent reported having broadband at home in April 2008. Among the same group of Americans, 27 percent reported having home broadband the previous year. African Americans experienced slow growth, with broadband adoption increasing from 40 percent in March 2007 to 43 percent in April 2008.

    For a copy of this report, please see [http://www.pewinternet.org/pdfs/PIP_Broadband_2008.pdf] (PDF only). [Source: Pew/Internet]


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  • Other Activities and Items of Interest

    Public Safety Groups Opting for Less Stringent E-911 Rules

    07.25.2008 – A number of public safety groups, which had previously supported more stringent Enhanced 911 (E-911) location accuracy standards in Congress over the objections of some wireless providers, have begun to reassess their position on the matter. In a letter to the FCC, Willis Carter, president of the Association of Public Safety Communications International (APCO), and Ronald Boneau, president of the National Emergency Number Association (NENA), suggested that previously approved E-911 guidelines be relaxed. While previously advocating that wireless E-911 accuracy be measured at the public safety answering point (PSAP) level, Carter and Boneau have indicated their willingness to accept compliance measurements at the county level. They have also recommended a waiver process be established to address cases in which carriers cannot technically meet modified location accuracy requirements in every county.

    Public Safety Groups Opting for Less Stringent E-911 Rules 07.25.2008 – A number of public safety groups, which had previously supported more stringent Enhanced 911 (E-911) location accuracy standards in Congress over the objections of some wireless providers, have begun to reassess their position on the matter. In a letter to the FCC, Willis Carter, president of the Association of Public Safety Communications International (APCO), and Ronald Boneau, president of the National Emergency Number Association (NENA), suggested that previously approved E-911 guidelines be relaxed. While previously advocating that wireless E-911 accuracy be measured at the public safety answering point (PSAP) level, Carter and Boneau have indicated their willingness to accept compliance measurements at the county level. They have also recommended a waiver process be established to address cases in which carriers cannot technically meet modified location accuracy requirements in every county.

    This policy shift may be attributed to changes within the PSAP community, such as consolidation of 911 centers and changes to PSAP geographic boundaries to match county boundaries. Currently, cellular operators must locate emergency callers within 50 to 300 meters of their actual position, depending on the type of E-911 technology they use. Failure to do so has resulted in fines by the FCC in recent years. In changing their stance, APCO and NENA contend that there is room to lessen these E-911 provisions, noting that location accuracy in certain counties is difficult for many wireless providers because of variations in geography and systems. The Rural Cellular Association (RCA) has cautiously endorsed this position, despite claims from FCC chairman Kevin Martin and other commissioners that the current standard remains inadequate for improving chances of first responders to pinpoint the location of callers. [Sources: RCR News.com and FCC]

    Satellite Radio Merger of Sirius, XM Approved by FCC

    07.25.2008 – The FCC approved the application of satellite radio companies Sirius Satellite Radio and XM Satellite Radio Holdings to merge, via Sirius’s buyout of XM Radio at a cost of about $3.5 billion. The FCC voted 3-2, along party lines, to approve the merger. FCC Chairman Kevin Martin and Commissioner Robert McDowell, both Republicans, approved the merger, while Democratic Commissioners Michael Copps and Jonathan Adelstein opposed the move. The tie-breaking vote, cast by Republican Commissioner Deborah Taylor Tate, came after the companies agreed to pay $19.7 million to the federal Treasury in order to settle a number of FCC rule violations.

    For a copy of the Memorandum Opinion and Order and Report and Order [FCC 08-178] authorizing the merger, please see [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-178A1.txt] (MS Word and PDF versions also available). [Sources: FCC and New York Times]


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  • Newsletter Info

    Center for Advanced Communications Policy
    Telecom/IT Policy Highlights Volume 8.06
    June/July 2008
    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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