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Friday, February 10, 2017, 5:57 PM

FCC Waives Certain Classification Standards from 2017 E-rate Eligible Services List

Posted by: Rebecca Jacobs

On February 8, 2017, the Wireline Competition Bureau ("Bureau") granted a waiver of certain Category One/Category Two classification standards established in the 2017 Eligible Services List ("ESL") on its own motion, meaning that it was made without a request from an outside party for waiver. In the 2017 ESL, the Bureau provided a new explanation of how to classify connections between multiple buildings in a single school for purposes of requesting Category One or Category Two support and provided an Appendix B with FAQ on the classification of connections. With regard to multiple buildings, the Bureau clarified that connections between different buildings are eligible for Category One support regardless of whether the buildings are located on the same grounds. Beginning with the 2017 Funding Year, if connections are between instructional buildings of a single school, or non-administrative buildings of a single library located on different campuses belonging to the school or library, they should be classified as Category One. If, however, the connections are between instructional buildings of a single school, or non-administrative buildings of a single library branch that are located on the same campus, they should seek Category Two funding. For schools or libraries that share a single building, the portion of the building used by each would be considered their campus, so the connections between the "campuses" would be considered Category One services.

In the waiver, the Bureau waived the obligation to apply the standards from the ESL to multi-year contracts that had been entered into prior to 2017, if it would cause certain connections to move from being Category Two to Category One. For 2017 applicants, the Bureau waived the requirement to classify connections between different schools and libraries sharing a single building as Category One services. Accordingly, applicants can seek Category Two funding for customer-owned or –controlled inside wiring that connects different schools and libraries within the same building.

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Friday, February 3, 2017, 1:55 PM

Chairman Pai Steps-It-Up on Broadband Deployment

Posted by: Bruce Buchanan

Earlier this week, FCC Chairman Ajit Pai announced the formation of a new Broadband Advisory Committee, calling for nominations by February 15, 2017.  The mission of the new FCC federal advisory committee is to make recommendations to the Commission as to how to accelerate broadband deployment by reducing and/or removing regulatory barriers to infrastructure investment, and to exchange ideas and develop recommendations on broadband deployment.  While the stated focus of the committee appears to be on removing regulatory barriers to deployment, particularly at the local level, and on what localities can do to promote broadband deployment, no doubt, the committee’s work will also address the permitting practices of state agencies (such as the right-of-way practices of state DOTs), as well as the practices of various federal agencies that have been a significant concern for the industry.   We also expect that ways to streamline environmental and historic preservation reviews will be within the group’s purview.
More broadly, this effort is part of Chairman Pai’s stated agenda to close the digital divide (which some in the public interest community remain skeptical of), and, of course, the importance of broadband and 4G densification through small cell infrastructure deployment generally, as well as what he has referred to as his “digital empowerment agenda.”   Chairman Pai indicated, while a Commissioner, that as part of that agenda, he would back efforts to create gigabit opportunity zones, boost rural mobile broadband, remove broadband regulatory barriers, and promote entrepreneurship and innovation.
Beyond the limited mission on removing regulatory barriers and steps governmental entities can take to promote broadband, this is a welcome part of a larger agenda, particularly given the broader focus of the Administration on infrastructure deployment.  Interestingly, just following the Chairman’s rollout of his deployment agenda, the Chairman’s Republican colleague, Commissioner  Michael O’Rielly, posted an entry to the FCC Blog on the potential pitfalls of federal broadband infrastructure spending – that is, beyond the federal Universal Service program.  This could signal an area of potential disagreement between the Republican commissioners on the extent to which the Federal Government should be subsidizing broadband infrastructure deployment, and is certainly worth keeping an eye on.

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Thursday, February 2, 2017, 10:35 AM

John Garziglia in Radio Ink: Are You Liable If Your Station is Hacked?

Posted by: Bruce Buchanan

This week, a South Carolina radio station’s listeners were surprised to find their regular programming interrupted by a political song with obscene lyrics. A hacker (from IP addresses in Russia and Taiwan) broke into Sunny 107.9’s transmitter and looped in the objectionable song.
While station officials certainly didn’t intend for this song to air, can the FCC still hold them liable? Womble Carlyle Telecom attorney John Garziglia addresses this question in a new column for Radio Ink.
Garziglia said the station is under no obligation to inform the FCC. However, a listener complaint still may subject the station to a $350,000 FCC fine.
"At the risk of delving too deeply into the subject, no one has any idea what will be the FCC’s stance under the new Chairman on indecency,” Garziglia writes. In recent years, he said the FCC has been inconsistent in its handling of on-air profanity.
He adds, “These hacking incidents are a good reminder to confirm that your errors and omissions insurance policy covers potential fines and defense costs should an FCC indecency complaint be filed. Also, please confirm that your internet connected device password is not ‘password’”.

Thursday, January 19, 2017, 11:03 AM

FCC Wireless Bureau’s Staff Report Questions AT&T and Verizon Zero Rating Practices in Mobile Broadband Market…But To What Effect Under the Trump Administration?

Posted by: Bruce Buchanan

By Doug Bonner

On January 11, 2017, the FCC released its most extensive “policy review” of mobile broadband operators sponsored data offerings for zero-rated content and services since the Commission’s 2015 Open Internet Order.  

Rebuffing Republican requests, and a stated commitment by the Chairman not to take action on any controversial post-election items before the Trump Administration takes office, the FCC Wireless Telecommunications Bureau (WTB), under Chairman Wheeler’s direction, released this Bureau report following a year long investigation into the zero-rating practices in the mobile broadband market.  “Zero-rating” generally refers to the practice of not counting consumer use of certain sponsored applications under a customer’s data usage caps under mobile carrier sponsored data plan.    

While not finding zero rating plans per se harmful, the report singles out sponsored data offerings by “vertically integrated mobile broadband providers” which “may harm consumers and competition in downstream industry sectors by unreasonably discriminating in favor of select downstream providers, especially their own affiliates.”  Report at 17.  The Report expresses “serious concerns” about AT&T Mobility’s Sponsored Data program, and that “we believe there is a substantial possibility that some of AT&T’s practices may violate the [Open Internet Order] General Conduct Rule.”   Report at 12. 

In particular, the Report refers to AT&T “hefty per-gigabyte charges on unaffiliated third parties [edge providers]” that consumers might use for their Sponsored Data which compete against AT&T’s DIRECTV Now affiliate.  The WTB also references Verizon’s FreeBee Data 360 sponsored data program as posing similar concerns as AT&T’s but describes it as a “nascent” service with only a limited content portfolio at this time in contrast to DIRECTV Now’s full range of live TV and full length movies and shows.  Report at 17.

Chairman Wheeler in a final speech to the Aspen Institute on January 13 defended the Report’s conclusions arguing that if the large ISPs can determine “which applications and clouds work better than others in terms of access speed and latency, then they will control the future.”     

FCC Republican Commissioner Pai issued a statement criticized the “midnight regulations” of the Bureau-level report as done without a Commission-level majority, and which he saw only after its release, as “casting doubt on the legality of free data offerings” that are popular among consumers.

Commissioner Pai expressed confidence that the Report will “not have any impact” on FCC policymaking or enforcement activities following President Trump’s inauguration. 

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Friday, December 9, 2016, 1:54 PM

Broadband Privacy Rules Published, FCC Stakes Out Role As Privacy Cop

Posted by: Rebecca Jacobs

By: Doug Bonner, Mark Palchick, Marty Stern and Rebecca Jacobs

On December 2, 2016, the FCC’s Broadband Privacy Report and Order (“Order”) was published in the Federal Register, triggering the 30-day deadline for petitions for reconsideration, and the effective dates for certain new requirements adopted in the Order, as we discuss below. In addition, petitions for review in a court of appeals may be filed within 60 days. The Republican Commissioners in dissenting statements and in public comments have criticized the Commission for applying “asymmetric regulation”, since the new rules regulate the privacy practices of broadband providers but do not regulate similar practices of edge providers. In many respects, the Order follows the traditional sector approach applied by the FTC and other federal agencies in protecting sensitive personal information that is protected under specific federal statutes, such as financial and health information. The Order, however, expands upon these prior privacy approaches to extend heightened privacy protection to web browsing and mobile application usage history collected by broadband providers, which was previously outside the scope of protection.

Certain of the new privacy rules take effect in the next several months, including:

  • The prohibition on conditioning the provision of Broadband Internet Access Service (“BIAS”) upon a customer’s agreement to waive privacy rights, which will take effect on January 1, 2017; and
  • New data security requirements, which will take effect on March 2, 2017
Other aspects of the new rules, including the Order’s notice and consumer choice rules and breach notification procedures, will require Office of Management and Budget approval under the Paperwork Reduction Act. This may provide opponents of the new rules an early opportunity to get the ear of the new Administration, and to challenge their effectiveness outside the FCC, though it is widely expected that parties will seek reconsideration before the Commission or pursue a court challenge to the rules.

For a detailed summary of the new rules click here.

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Friday, November 18, 2016, 10:29 AM

FCC Nixes Mortgage Bankers' Petition on Autodialed Calls to Wireless Numbers

Posted by: Rebecca Jacobs

By: Marty Stern, Doug Bonner and Rebecca Jacobs

The FCC’s Consumer and Governmental Affairs Bureau recently denied a petition from the Mortgage Bankers Association for an exemption from the prior express consent requirement for autodialed calls and texts to wireless numbers under the TCPA.   The requested exemption would have covered mortgage servicing calls, such as delinquency notifications, calls regarding missing documentation, and inquiries regarding whether the property had been abandoned or vacated.  In denying the requested exemption, the Bureau reasoned that the petition failed to demonstrate either that the calls would be made at no charge to the recipient, or that there was an exigency or immediate need for the calls sufficient to justify the exemption and what the Bureau viewed as the intrusion to the customer’s privacy from such calls.  The Bureau contrasted its decision here with the exemption granted to the American Bankers Association in the Commission’s 2015 TCPA Declaratory Ruling, in cases regarding fraudulent transactions involving a customer’s account, or identity theft.  The Bureau’s decision on the Mortgage Bankers Association petition is also in contrast to the recent Commission Declaratory Ruling granting petitions from Blackboard and Edison Electric Institute, which allowed certain autodialed school-related and utility calls and texts to wireless numbers, where the called party had previously provided his or her wireless number.

The D.C. Circuit recently heard oral argument on petitions for review of the FCC’s 2015 TCPA Declaratory Ruling, which, among other things included controversial findings on the definition of an autodialer and a caller’s obligation to cease autodialing reassigned numbers after one call, and decision is expected by year-end.    

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Monday, November 7, 2016, 4:05 PM

FCC adopts proposed $21,691,499 fine of Network Services Solutions for violations of the USF Rural Health Care Program

Posted by: Bruce Buchanan

By Doug Bonner

In the first major FCC enforcement proceeding involving its Rural Health Care Program, the FCC on November 4, 2016 adopted an NAL for nearly $22 Million against telecommunications reseller Network Services Solutions, which provided RHP services to Health Care Providers primarily in Mississippi and Texas.

The violations involve fabrication of documents, inflating rural rates, doctoring records to hide unfair non-competitive bidding practices, bribing a customer to sign, and submitting forged and false urban rates to increase payments from the Fund.  The violations appear to have been longstanding, from 2012 to date, and resulted in NSS receiving “millions of dollars” to which it was not entitled. 

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