Fcca May Cause Broadband Telephone Network (E911) To decline?

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1 BloostonLaw Telecom Update Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP Vol. 10, No. 24 June 6, 2007 FCC Boosts Phone, Video Opportunities In Multi-Unit Buildings The FCC, at its May 31 open meeting, adopted an order to ensure that consumers in multi-unit buildings enjoy the benefits of increased competition in telephone and video service offerings. Specifically, the Commission granted a Cox Communications petition for declaratory ruling that eliminates barriers to competitive entry in multi-unit buildings where a new entrant seeks to compete against an incumbent provider. New entrants to the video services and telephony markets should not be prevented from competing for consumers in multi-unit buildings based on costly and inefficient industry practices, the Commission said. The Commission clarified that competitive video services providers must not be forced to cut through sheet rock to connect their cable wiring to cable home wiring inside a unit. The Commission found that wiring behind sheet rock is physically inaccessible" for the purposes of inside wiring rules, like brick, cinder block and similar materials used to construct ceilings and hallways. Competing telephone companies must have access to the incumbent s inside wire subloops in multi-unit premises at the terminal block in order to install service. The inside wire subloop typically is used by competing telephone companies to connect to individual consumers in multi-unit buildings. BloostonLaw contacts: Ben Dickens and Gerry Duffy. INSIDE THIS ISSUE? Court affirms FCC s VoIP USF contribution, safe harbor requirements; but vacates traffic studies, carrier s carrier rule parts.? FCC seeks comment on E911 location accuracy, reliability requirements for wireless, VoIP providers.? FCC adopts order implementing Katrina panel recommendations.? FCC takes action to strengthen Emergency Alert System. Court Affirms FCC s VoIP USF Contribution, Safe Harbor Requirements; But Vacates Traffic Studies, Carrier s Carrier Rule Parts The U.S. Court of Appeals for the District of Columbia Circuit has concluded that the FCC has statutory authority to require Voice over Internet Protocol (VoIP) service providers to make Universal Service Fund (USF) contributions, and that it acted reasonably in setting safe harbor levels that is, in analogizing VoIP to wireline toll service for purposes of setting the presumptive percentage of VoIP revenues generating interstate and internationally. But, in Vonage v. FCC, the D.C. Circuit vacated the Commission s USF Contribution Order with respect to (1) the pre-approval requirement for interconnected VoIP traffic studies, and (2) the suspension of the carrier s carrier rule. Once again, National Cable & Telecommunications Association v. Brand X Internet Services (or Brand X), the Supreme Court decision granting deference to the FCC, played a prominent role. At issue is the Commission s 2006 order requiring providers of interconnected VoIP services to contribute to the USF. Deferring a decision on whether to classify VoIP as a telecommunications service or an information service, the Commission grounded its USF Contribution BLOOSTONLAW TELECOM UPDATE 1 June 6, 2007

2 Order in its permissive contribution authority and, alternatively, its Title I ancillary jurisdiction. The Commission gave three reasons for taking this discretionary step. First, USF contributions have declined in recent years, while interconnected VoIP services have experienced dramatic growth. Thus, requiring contributions from interconnected VoIP providers would preserve and advance universal service. Second, interconnected VoIP providers ought to contribute to the USF because much of the appeal of their services to consumers derives from the ability to place calls to and receive calls from the public switched telephone network (PSTN ), which is supported by universal service mechanisms. Third, competitive neutrality a principle that requires advantaging no one technology over another favors making VoIP providers contribute because they increasingly compete with analog voice service providers, who contribute to the USF. Traditionally, the Commission assesses USF contributions only on revenues generated from interstate or international calls. For companies connecting landline customers, determining the percentage of interstate or international calls is relatively simple. But for wireless and VoIP providers whose customers may use their services from many locations and often have area codes that do not correspond to their true location determining the percentage of interstate and international traffic is more difficult. Given those difficulties, the Commission established as it has since 1998 for wireless a safe harbor that approximates the percentage of VoIP revenues generated from interstate and international calls. The safe harbor ensures that VoIP providers will not have to make USF contributions on more than a certain percentage of their revenues. The safe harbor is only a ceiling: VoIP providers may reduce their USF contributions if, through traffic studies, they can show that their actual percentage of interstate and international revenues falls below the safe harbor percentage. To set the safe harbor level, the Commission sought to identify the appropriate analogue for VoIP service. The Commission considered two possibilities: wireline toll service (c olloquially referred to as landline long distance), which the Commission presumed to be 64.9% interstate and international, and wireless service, presumed to be 37.1% interstate and international. The Commission selected wireline toll service as the better analogue, giving two reasons for its decision. First, it cited two industry reports, one estimating that 83.8% of VoIP traffic is interstate or international and a second putting the figure at 66.2% both figures higher than the safe harbor level for wireline toll service. Second, the Commission cited advertisements demonstrating that VoIP providers frequently market their service as a substitute for wireline toll service, noting that many customers purchase such plans in order to place a high volume of interstate and international calls and consequently benefit from the pricing plans the providers offer for such services. The Commission then ruled that interconnected VoIP providers wishing to contribute less than the safe harbor level may do so only after the Commission has approved their traffic studies. This rule differs from the rule applicable to wireless providers, who may contribute according to the findings of their traffic studies even before Commission approval. Having identified concerns in the wireless context with the use of traffic studies, the Commission feared that allowing VoIP providers to rely on traffic studies without pre-approval would risk extending the problems we have identified with the use of traffic studies... to a new technology. Addressing the inconsistent treatment of wireless and VoIP providers, the Commission explained that imposing a pre-approval requirement on both groups would be disruptive to wireless contributors who, unlike interconnected VoIP providers, are already relying on the current regime. Finally, the Commission suspended the so-called carrier s carrier rule, which prevents duplicative USF contributions at the wholesale and retail levels. The rule accomplishes this by basing contributions only on end-user telecommunications revenues. The Commission suspended the rule with respect to VoIP for two quarters following issuance of the order, explaining that if carriers are permitted to invoke the carrier s carrier rule immediately to exclude revenues from interconnected VoIP providers, the result could be a net decrease in the Fund in the short term, a result inconsistent with its obligation to preserve and advance universal service. CCIA and Vonage petitions: The Computer and Communications Industry Association (CCIA), a trade group with at least one interconnected VoIP provider among its members, and Vonage Holdings Corporation, a provider of interconnected VoIP service, petitioned for review. The CCIA challenged the Commission s assertion of authority under both section 254(d) of the Communications Act and its Title I ancillary jurisdiction to require VoIP providers to contribute to the USF. Vonage did not contest the Commission s authority to require USF contributions, challenging instead three other aspects of the Order: the safe harbor level, the pre-approval requirement BLOOSTONLAW TELECOM UPDATE 2 June 6, 2007

3 for traffic studies, and the suspension of the carrier s carrier rule. Section 254(d) and Brand X: The court noted that the Commission derives its authority to require USF contributions from Section 254(d) of the Communications Act, which requires every telecommunications carrier that provides interstate telecommunications services to contribute, on an equitable and nondiscriminatory basis, to the specific, predictable, and sufficient mechanisms established by the Commission to preserve and advance universal service. Section 254(d) goes on to say: Any other provider of interstate telecommunications may be required to contribute to the preservation and advancement of universal service if the public interest so requires. According to the Commission, Section 254(d) s permissive portion (the final sentence) authorizes it to require VoIP providers to contribute to the USF, regardless of whether VoIP is ultimately classified as a telecommunications service or an information service. The court then turned to Brand X to explain how the Commission came to its reasonable conclusions. In Brand X, the Supreme Court upheld the Commission s interpretation of the word offer as reasonable, explaining: It is common usage to describe what a company offers to a consumer as what the consumer perceives to be the integrated finished product, even to the exclusion of discrete components that compose the product.... One might well say that a car dealership offers cars, but does not offer the integrated major inputs that make purchasing the car valuable, such as the engine or the chassis. It would, in fact, be odd to describe a car dealership as offering consumers the car s components in addition to the car itself. The D.C. Circuit said that the scope of the Commission s permissive contribution authority does not depend on whether VoIP is considered an offering of either telecommunications or information. Rather, the Commission s permissive contribution authority extends to provider[s] of interstate telecommunications. The verb provide, as the Commission explained in its order, is a different and more inclusive term than offer. Black s Law Dictionary, upon which the Commission relied, defines provide as [t]o make, procure or furnish for future use, prepare. To supply; to afford; to contribute. Under this definition, the court said, the verb provide is broad enough to include the act of supplying a good or service as a component of a larger, integrated product. For instance, under the Commission s interpretation, McDonald s provides beef, as well as hamburgers, and The Washington Post provides ink, as well as newspapers. After concluding that a provider of telecommunications need only supply telecommunications as a component of its finished product, the court agreed with the FCC that VoIP does in fact include telecommunications as a component. The Act defines [t]elecommunications as the transmission, between or among points specified by the user, of information of the user s choosing, without change in the form or content of the information as sent and received, the D.C. Circuit said. The court also agreed with the Commission s explanation that interconnected VoIP services provide such transmission by virtue of their interconnection with the PSTN. Under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., if the court determines whether the statute is silent or ambiguous with respect to the specific issue, the question is whether the agency s answer is based on a permissible construction of the statute. If so, then the court need not determine that the agency s reading is the best possible reading of the statute, only that it is reasonable. The D.C. Circuit said that the Commission s application of Section 254(d) to interconnected VoIP providers involved two discrete decisions: (1) that, unlike the verb offer, the verb provide may apply to the act of supplying a component of an integrated product, and (2) that VoIP providers supply telecommunications as a component of their service. Essentially, the court agreed with the FCC s answers to these questions, and it did so by invoking the Brand X precedent requiring deference to the expert agency. Finding that the Commission has section 254(d) authority to require interconnected VoIP providers to make USF contributions, we have no need to decide whether the Commission could have also done so under its Title I ancillary jurisdiction, the court said. Safe Harbor Level: Vonage argued that the Commission acted arbitrarily and capriciously in choosing wireline toll service instead of wireless service as the analogue for VoIP. The Commission analogized VoIP to wireline toll service principally because VoIP providers market their service as a substitute for wireline toll service and offer pricing plans typically flat fees for unlimited local and long distance calls that make the service attractive to customers who place high volumes of interstate and international calls. Questioning this analogy, Vonage argued that, unlike wireline toll service, VoIP functions as an all-distance service that enables local as well as long distance and international calls. Vonage also pointed out that the Commission recognized VoIP s alldistance functionality in two previous decisions, one re- BLOOSTONLAW TELECOM UPDATE 3 June 6, 2007

4 quiring VoIP providers to ensure 911 service. We agree with Vonage that this difference in capabilities renders the VoIP/wireline toll service analogy imperfect, the court said. Perfection, however, is not what the law requires. To prevail, Vonage must show that wireless is so much the better analogue for VoIP that the Commission acted arbitrarily and capriciously by failing to select it. This Vonage has not done. The D.C. Circuit said: Because Vonage has neither shown why usage patterns for VoIP are more like those for wireless than for wireline toll service nor unsettled the Commission s reasoning regarding the type of customer attracted to VoIP, we have little trouble rejecting its challenge to the safe harbor level. Traffic Studies: Here Brand X could not rescue the Commission. The court noted that the Commission chose to require pre-approval for VoIP traffic studies because of problems [it had] identified with the use of traffic studies by wireless carriers. In other words, the Commission decided that the consequences of unreliable traffic studies submitted by wireless providers should be borne not by the wireless providers themselves, but by VoIP providers alone. Though recognizing the inequity in this decision, the court said, the Commission devoted but one sentence to justifying it: While there would be a benefit to parity of requirements between wireless and interconnected VoIP providers, a pre-approval requirement for wireless traffic studies would be disruptive to wireless contributors who, unlike interconnected VoIP providers, are already relying on the current regime. This explanation hardly justifies treating VoIP and wireless differently. Imposing a new pre-approval requirement on wireless carriers would no doubt have been disruptive to them, the court said. The Commission, however, has failed to explain how it is any less disruptive to impose such an obligation on interconnected VoIP providers who have gone overnight from making no direct USF contributions to contributing at nearly twice the level of wireless providers. We understand that regulations can be more costly when unforeseen. We also understand that the Commission may have assumed, given the IP-Enabled Services notice, that interconnected VoIP providers would have foreseen new USF regulations. But even so, the Commission has given us no reason to believe that interconnected VoIP providers foresaw that they would be subject to a pre-approval requirement, the court said. After all, the Commission had declined to impose such a requirement on wireless providers despite the fact that their own studies suffered from reliability problems. The Commission s explanation thus gives us no confidence that it has apportioned USF obligations on an equitable and nondiscriminatory basis. Suspension of the Carrier s Carrier Rule: We come finally to the Commission s suspension of the carrier s carrier rule a rule that prevents double payment at the wholesale and retail level by basing USF contributions only on end-user telecommunications revenues, the court said. As the Commission acknowledged, this decision effectively required VoIP providers to make duplicative USF contributions for two quarters: once directly on their own interstate and international revenues and a second time indirectly in the form of higher costs passed along from carriers who sell them telecommunications inputs. The Commission s sole justification for imposing this unique obligation on VoIP providers was this: if carriers are permitted to invoke the carrier s carrier rule immediately to exclude revenues from interconnected VoIP providers, the result could be a net decrease in the Fund in the short term. According to the D.C. Circuit, this explanation suffers from a fundamental flaw: the Commission never explained how there could be a net decrease in fund revenues by making VoIP providers contribute while keeping the carrier s carrier rule in force. Indeed, increasing USF revenues was the very reason the Commission gave for requiring interconnected VoIP providers to contribute to the fund. And, as Vonage points out, the court said, the only reason to expect a decrease in fund revenues would be if the indirect payments interconnected VoIP providers made before the Order were somehow larger than the direct payments they would make after the Order. For that to occur, however, interconnected VoIP providers would have to sell their services for less than they pay for a single wholesale input an unlikely business model that, without some explanation from the Commission, we are unwilling to assume VoIP providers pursue. In its brief, the Commission offered several new explanations for a potential short-run decrease in the fund. We, however, may not consider counsel s post-hoc rationalizations, the court said. ANALYSIS Post- Brand X Climate: Although the D.C. Circuit invoked the Brand X precedent to grant the FCC deference in affirming the agency s decision to require VoIP service providers to contribute to the USF and to affirm the Commission s safe harbor percentages, the court did stop short of granting extraordinary deference with respect to the USF Contribution Order s traffic studies and carrier s carrier provisions. As we have noted before, it was probably Justice Stephen Breyer s statement during oral argument in March 2005 that perhaps best summed up the Brand X case for the Supreme Court majority. He said he had no idea how broadband services would be provided years from now. There may be a thousand competitors. BLOOSTONLAW TELECOM UPDATE 4 June 6, 2007

5 There may be wireless. People may be broadcasting it through their teeth. I don t know Let s let the FCC decide (emphasis added). Well, in the instant case Vonage v. FCC the D.C. Circuit seems to be saying: OK, we will let the FCC decide, but they better well explain and justify their decision. And that is a step in the right direction. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast. FCC Seeks Comment On E911 Location Accuracy, Reliability Requirements For Wireless, VoIP Providers The FCC, at its May 31 open meeting, adopted a Notice of Proposed Rulemaking (NPRM) seeking comment on tentative conclusions and issues related to Enhanced 911 (E911) location accuracy and reliability requirements for wireless carriers and providers of interconnected voice over Internet Protocol (VoIP) services. The Commission tentatively concluded that, as proposed by the Association of Public Safety Communications Officials-International, Inc. (APCO), wireless carriers would be required to meet Phase II location accuracy and reliability standards under Section 20.18(h) at the service area level of public safety answering points (PSAPs). Comments on this aspect (Section III-A of the NPRM) will be due 14 days after publication of the PS Docket No item in the Federal Register, and replies will be due 7 days thereafter. The Commission also seeks comment on whether to defer enforcement of Section 20.18(h) to allow time for wireless carriers to come into compliance with this standard, as well as the other questions regarding enforcing any rule that may be adopted on the geographic area for compliance. Comments on this aspect (Section III-B of the NP RM) will be due 60 days after publication of the item in the Federal Register, and replies will be due 30 days thereafter. In addition to proposing to clarify the geographic area over which carriers must satisfy the E911 Phase II accuracy requirements, the Commission also seeks comment on other tentative conclusions, on whether:? A single, technology-neutral location accuracy requirement for wireless E911 service should be used, rather than the separate accuracy requirements for network -based and handsetbased location technologies that are currently in place;? Wireless carriers should comply with a mandatory schedule for accuracy testing and automatically provide accuracy data to PSAPs; and? Providers of interconnected VoIP services that can be used at more than one location must employ an aut omatic location technology that meets the same accuracy standards which apply to providers of commercial mobile radio services (CMRS). Finally, the Commission found that there are at least two areas that warrant additional evaluation by Commission engineers and staff: (1) methods for carriers to improve in-building location accuracy; and (2) the use of hybrid technology solutions to increase location accuracy and address shortcomings of current technologies. The Commission noted its intent to examine and publicly report on both issues as quickly and efficiently as possible, so as not to unduly delay the issuance of a final order. Chairman Kevin Martin said: We have long known that the two location technologies used by carriers handset-based GPS and network-based triangulation each have limitations. Network-based technologies are not as effective in rural areas often due to lack of sufficient towers. Handset-based technologies are not as effective in urban areas, as signals often have difficulty penetrating buildings. In this respect, a network-based technology that works well in Manhattan may have little or no ability to locate an individual in other parts of the state. As technology has developed, however, so must our standards and expectations. The Notice of Proposed Rulemaking recognizes that the different technologies chosen by carriers to date have limitations, and seeks comment on ways to remedy these shortcomings. For example, we specifically ask about the use of hybrid technologies that employ both handsetbased and network-based location solutions. Among other things, the Notice also asks how roaming among carriers that use different location technologies should be addressed, and to what extent providers of interconnected voice over Internet protocol services should be required to provide automatic location information. Commissioner Michael Copps said: I am pleased that today s item raises a series of pressing and important questions about the Commission s current E911 location accuracy standards. I am even more pleased that the item commits to a process for improving our wireless location accuracy that I think can lead to meaningful, and still expeditious, improvements in our emergency calling system. We need to get a handle a better handle than we presently have on the precise capabilities and limitations of today's emergency calling technologies. It is clear that we still have a serious challenge in making and completing some in-building emergency calls. Such BLOOSTONLAW TELECOM UPDATE 5 June 6, 2007

6 calls comprise, of course, a significant percentage of all emergency calls. We need to resolve that. Another study will look at the potential and costs of hybrid technologies that could combine, in one device, the technologies appropriate for both urban and rural calling. Successfully meeting this challenge could result in huge public safety gains for all Americans. In a concurring statement, Commissioner Jonathan Adelstein said: I am concerned that this proceeding, while well-intentioned, rushes to judgment by issuing a series of tentative conclusions without even beginning to conduct the necessary due diligence. I am troubled that we are considering imposing a new compliance requirement that we know some carriers will be unable to meet in certain circumstances. To make matters worse, we are bifurcating the proceeding with the goal of setting a new accuracy compliance standard well in advance of making a determination of how we can actually achieve improved location accuracy. This is premature from both legal and policy standpoints. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Cary Mitchell, and Bob Jackson. LAW & REGULATION FCC ADOPTS ORDER IMPLEMENTING KATRINA PANEL RECOMMENDATIONS: The FCC, at last week s open meeting, adopted an order implementing various recommendations of the Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks. The Order extends, by one year, existing Special Temporary Authorizations which exempt Bell Operating Companies (BOCs) from enforcement of Section 272 of the Communications Act and its implementing rules in order to allow them to share non-public, BOC network information with their Section 272 and other affiliates to facilitate disaster planning. Rules were adopted requiring local exchange carriers (LECs) and Commercial Mobile Radio Service (CMRS) providers to have an emergency backup power source for all assets that are normally powered from local AC commercial power including those inside central offices, cell sites, remote switches and digital loop carrier system remote terminals. The Order also requires certain LECs, CMRS providers and interconnected Voice over Internet Prot o- col (VoIP) providers to submit reports regarding the reliability and resiliency of their 911 systems. These requirements will not apply to certain small wireline carriers and Tier III CMRS providers. Certain small VoIP provi d- ers will be exempt from filing 911 system reports. The Order also instructs the FCC s Public Safety & Homeland Security Bureau to:? Develop and implement an awareness program to educate public safety agencies about alternative communications technologies;? Continue to work to enhance a voluntary, streamlined approach for collection of outage and situational awareness information during emergencies;? Continue to reach out to the emergency medical community to facilitate the resiliency and effectiveness of their emergency communications systems, including hospital emergency departments;? Continue to work with the Department of Homeland Security on developing credentialing standards and ensuring that all communications service providers are treated as essential personnel for purposes of the Stafford Act;? Continue to work with the Department of Homeland Security to promote the Priority Communications Service Programs (i.e., Government Emergency Telecommunications Service, Telecommunications Service Priority and Wireless Service Priority) particularly among first responders, health care facilities and 911 emergency call centers nationwide;? Take various steps, in conjunction with the National Telecommunications and Information Administration and the Department of Homeland Security, to facilitate first responder interoperability;? Promote the implementation of various best practices to ensure a more robust E911 service;? Take steps to revitalize and publicize the current Emergency Alert System; and? Work with industry, state and local governments and organizations representing people with disabilities and non-english speaking persons to ensure that they receive emergency information. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast. FCC TAKES ACTION TO STRENGTHEN EMERGENCY ALERT SYSTEM. The FCC has adopted a Second Report and Order and Further Notice of Proposed Rulemaking (FNPRM ) to strengthen the Emergency Alert System (EAS). The Order promotes the development of fully digital Next Generation technologies and delivery systems. The Order requires EAS participants to accept messages using Common Alerting Protocol (CAP), the groundwork for Next Generation EAS delivery systems, no later than 180 days after the Federal Emergency Management Agency (FEMA) announces its adoption of standards in each case. The use of CAP will help to ensure the efficient and rapid transmission of EAS alerts to the American public in a variety of formats (including text, audio and video) and via different means (broadcast, cable, satellite, and other networks) and to promote the development of Next Generation EAS. One result of these developments will be enhanced access to EAS alerts and warnings for persons with disabilities and for non-english speakers. The FNPRM seeks comment on how best to BLOOSTONLAW TELECOM UPDATE 6 June 6, 2007

7 deliver EAS alerts as well as broader emergency and public safety information to these groups, and commits to adoption of a final order within six months. In light of the examination of these issues in the FNPRM, the Order leaves open the issues raised in a petition filed by several groups representing non-english speaking persons. The Commission directs the Public Safety and Homeland Security Bureau to convene a meeting or series of meetings as soon as possible on providing emergency information to non-english speakers. The stakeholders should submit into the record a progress report on these discussions within 30 days of the Order s release. The Order also requires terrestrial EAS participants to transmit state and locally targeted EAS alerts that are originated by governors or their designees. The FNPRM seeks comment on whether participants should be required to deliver EAS alerts originated by local, county, tribal, or other state governmental entities. In addition, the Order expands the EAS system by requiring participation by wireline video providers. Finally, the Order states the Commission s intention to ensure that the EAS network is prepared to operate as intended. The Further Notice seeks comment on several possible means for achieving that goal, including additional testing, station certification, and post hoc assessments of how well the system worked after an EAS warning has been triggered. At our deadline, the text of the EB Docket No Order and FNPRM had not been released. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast. FCC EXTENDS DISABILITY ACCESS REQUIRE- MENTS TO VOIP PROVIDERS: At last week s open meeting, the FCC extended the disability access requirements of Sections 225 and 255 of the Communications Act, which currently apply to traditional phone services, to providers of interconnected Voice over Internet Protocol (VoIP) services and to manufacturers of specially designed equipment used to provide those services. Section 255 of the Communications Act requires manufacturers of telecommunications equipment or customer premises equipment and providers of telecommunications service to ensure that such equipment or service is accessible to and usable by individuals with disabilities, if readily achievable. In adopting Section 255, Congress sought to ensure that all Americans, including people with disabilities, could benefit from advances in telecommunications services and equipment. The Commission s existing Section 255 rules, adopted in 1999, (1) require manufacturers of telecommunications equipment or Customer Premises Equipment (CPE) to ensure that their equipment is designed, developed and fabricated to be accessible to individuals with disabilities, if readily achievable; (2) require telecommunications service providers to ensure that their service is accessible to individuals with disabilities, if readily achievable; (3) require manufacturers and service providers to evaluate the accessibility, usability, and compatibility of covered services and equipment; and (4) require manufacturers and service providers to ensure that information and documentation provided in connection with equipment or services be accessible to people with disabilities, where readily achievable, and that employee training, where provided at all, account for accessibility requirements. In addition, the Commission said that interconnected VoIP providers were subject to the requirements of Section 225, including contributing to the Telecommunications Relay Services (TRS) Fund and offering 711 abbreviated dialing for access to relay services. Requiring the TRS Fund contributions will protect the stability and sustainability of the Interstate TRS Fund. (TRS is a service that allows persons with hearing or speech impairments to use the telephone. The TRS Fund is used to pay for the provision of TRS services and is funded by contributions from all carriers that provide interstate service.) Requiring 711 abbreviated dialing will ensure that anyone wishing immediate access to the local TRS provider need only dial 711. On March 10, 2004, the Commission initiated a rulemaking proceeding that sought comment on whether and, if so, how, it should apply the accessibility requirements of Section 255 to providers of interconnected VoIP or other IP-enabled services. It also asked how any actions it might take could affect the Interstate TRS Fund and whether it should amend the TRS rules in light of the increasing use of IP -enabled services. Today s action is a result of that rulemaking proceeding. BloostonLaw contacts: Ben Dickens and Gerry Duffy. SENATE COMMERCE COMMITTEE SETS HEARINGS ON USF, 700 MHz AUCTION: The Senate Commerce, Science, and Transportation Committee has scheduled two hearings next week on universal service and wireless issues of interest to our clients. The first will focus on Universal Service Fund: Assessing the Recommendations of the Federal-State Joint Board, and is scheduled for Tuesday, June, 12, at 10:00 a.m., in Room 253 of the Russell Senate Office Building. This hearing will examine the Joint Board recommendations to cap distribution of funds to wireless programs. The 700 MHz Auction: Public Safety and Competition Issues hearing is scheduled for Thursday, June 14, at 10:00 a.m., in the same place Room 253 of the Russell Senate Office Building. This hearing will examine a variety of issues related to the auction of spectrum at the 700 MHz band. As of our deadline, witness lists had not been released. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast. DEADLINES JUNE 30: ANNUAL ICLS USE CERTIFICATION. Rate of return carriers must file a self-certification with the FCC and the Universal Service Administrative Company (USAC) stating that all Interstate Common Line Support (ICLS) and Long Term Support (LTS) will be used only BLOOSTONLAW TELECOM UPDATE 7 June 6, 2007

8 for the provision, maintenance, and upgrading of facilities and services for which the support is intended. In other words, carriers are required to certify that their ICLS and LTS support is being used consistent with Section 254(e) of the Communications Act. Failure to file this selfcertification will preclude the carrier from receiving ICLS support. We, therefore, strongly recommend that clients have BloostonLaw submit this filing and obtain an FCC proof-of-filing receipt for client records. BloostonLaw contacts: Ben Dickens and Gerry Duffy. JULY 31: FCC FORM 507, ICLS QUARTERLY LINE COUNT UPDATE. All wireline and wireless eligible telecommunications carriers (ETCs), with competitors (CETCs) operating in their study areas, must file quarterly line count updates with the Universal Service Administrative Company (USAC) to receive Interstate Common Line Support (ICLS). This data is used to calculate an ETC s per-line universal service support. CETCs are also required to file quarterly line count updates. However, an ETC without competition is not required to file Form 507, but may do so on a voluntary basis. BloostonLaw contacts: Ben Dickens and Gerry Duffy. JULY 31: REPORT OF EXTENSION OF CREDIT TO FEDERAL CANDIDATES. This report (in letter format) must be filed by January 30 and July 31 of each year, but ONLY if the carrier extended unsecured credit to a candidate for a Federal elected office during the reporting period. BloostonLaw contacts: Hal Mordkofsky and John Prendergast. AUGUST 1: FCC FORM 499-Q, TELECOMMUNICA- TIONS REPORTING WORKSHEET. All telecommunications common carriers that expect to contribute more than $10,000 to federal Universal Service Fund (USF) support mechanisms must file this quarterly form. The form contains revenue information from the prior quarter plus projections for the next quarter. Form 499-Q relates only to USF contributions. It does not relate to the cost recovery mechanisms for the Telecommunications Relay Service (TRS) Fund, the North American Numbering Plan Administration (NANPA), and the shared costs of local number portability (LNP), which are covered in the annual form (Form 499-A) that was due April 1. BloostonLaw contacts: Ben Dickens and Gerry Duffy. Make sure you send your data to Gerry Duffy at BloostonLaw. SEPTEMBER 1: COPYRIGHT STATEMENT OF AC- COUNTS. The Copyright Statement of Accounts form plus royalty payment for the first half of calendar year 2003 is due to be filed September 1 at the Library of Congress Copyright Office by cable TV service provi d- ers. BloostonLaw contact: Gerry Duffy. LAW OFFICES BLOOSTON, MORDKOFSKY, DICKENS, DUFFY & PRENDERGAST, LLP 2120 L St. NW, Suite 300 Washington, D.C (202) (202) (fax) Harold Mordkofsky, , halmor@bloostonlaw.com Benjamin H. Dickens, Jr., , bhd@bloostonlaw.com Gerard J. Duffy, , gjd@bloostonlaw.com John A. Prendergast, , jap@bloostonlaw.com Richard D. Rubino, , rdr@bloostonlaw.com Robert M. Jackson, , rmj@bloostonlaw.com Mary J. Sisak, , mjs@bloostonlaw.com D. Cary Mitchell, , cary@bloostonlaw.com Eugene Maliszewskyj, , ema@bloostonlaw.com Paul Shultz, editor, , pks@bloostonlaw.com If you would like to receive an version of the newsletter, contact Althea Pierce at or abp@bloostonlaw.com and indicate your format preference: MS Word 97, Adobe Acrobat (.pdf) or plain text. This newsletter is not intended to provide legal advice. Those interested in more information should contact the firm. AUGUST 1: FCC FORM 502, NUMBER UTILIZATION REPORT. Any wireless or wireline carrier that has been assigned an NXX code (10,000 numbers) or one or more 1,000 number blocks; and any wireless or wireline carrier that has received from the North American Numbering Plan Administrator (NANPA) or from another carrier one or more 1,000 number blocks must file Form 502. Such carriers should apply for an Operating Company Number (OCN) from NANPA if they do not already have one. BLOOSTONLAW TELECOM UPDATE 8 June 6, 2007

9 FCC Meetings and Deadlines June 11 Deadline for reply comments on NPRM to allow fixed service operators to use smaller antennas in the 11 GHz band (WT Docket No ) June 13 Deadline for reply comments on Joint Board recommendation to cap high cost fund (WC Docket No , CC Docket No ). June 13 Deadline for reply comments on Google s 700 MHz band proposals (WT Docket No ). June 15 Deadline for filing annual access charge tariff revisions on 15 days notice (carriers proposing to increase any of their rates). June 15 Deadline for comments on Broadband Marketing Practices NOI (WC Docket No ). June 15 Deadline for comments on Broadband Data NPRM (WC Docket No ). June 15 Deadline for reply comments on Interior Telephone Company request for ruling on whether ILECs must provide interim interconnection when negotiating non-price interconnection terms (WC Docket No ). June 15 Deadline for reply comments on State E-rate coordinators request that FCC rescind approval of AT&T s billing process (CC Docket No ). June 18 Mock Auction, Phase II 220 MHz Auction (Auction No. 72). June 18 Deadline for comments on NPRM to evaluate access to multiple dwelling units for video programmers (MB Docket No ). June 20 Phase II 220 MHz Auction (Auction No. 72). June 22 Deadline for petitions to reject or suspend annual access charge tariff revisions filed on 15 days notice. June 22 Deadline for comments on Alenco, et al. petition for declaratory ruling that customer equipment used with fixed or mobile satellite service is not facilities, and for preemption of Texas PUC order designating DialTone Services, L.P. as an ETC (CC Docket No ). Extended from June 11. June 25 Deadline for filing annual access charge tariff revisions on 7 days notice (carriers proposing to decrease all of their rates). June 25 Deadline for comments on DoJ, et al. petition regarding J-STD-025-B standard (RM-11376). June 26 Deadline for reply comments by interested parties to update the record pertaining to issues raised in the Commission's equal access and nondiscrimination proceeding (CC Docket No ). June 27 Deadline for petitions to reject or suspend annual access charge tariff revisions filed on 7 days notice. June 28 Deadline for replies to petitions to reject or suspend all annual access charge tariff revisions (those filed on 7 and 15 days notice). June 28 FCC open meeting. BLOOSTONLAW TELECOM UPDATE 9 June 6, 2007