Tuesday, May 29, 2012

Congress to Vote on Federal Communications Commission Consolidated Reporting Act of 2012

On Wednesday, May 30th, the full U.S. House of Representatives is
Commission Consolidated Reporting Act of 2012," as amended, under suspension of the House rules. H.R. 3310 would basically eliminate twelve FCC reports and consolidate eight other FCC reports "into a single comprehensive report with a focus on intermodal competition, deploying communications capabilities to unserved communities, and eliminating regulatory barriers." The supporters of the legislation contend it "would reduce the reporting burdens on the FCC while encouraging the agency to analyze competition in the marketplace as a whole rather than based on archaic regulatory silos."

There was significant bipartisan support for H.R. 3310 as was reported out of the House Energy and Commerce Committee, and the legislation is expected to pass in the House by the two-thirds majority required under suspension of the rules.  However, it remains to be seen whether the U.S. Senate will subsequently consider H.R. 3310 -- or the Senate companion measure (S.1780) -- during this session of Congress. The House's consideration of H.R. 3310 follows its passage of H.R. 3309, the Federal Communications Commission Process Reform Act of 2012, this Spring by a vote of 247 to 174. H.R. 3309 is currently stalled in the Senate Commerce Committee.

Below is a section-by-section summary of H.R. 3310 from the accompanying House Committee report.

If you have any questions regarding this legislation or any other activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any other member of the TLP team.

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Summary of H.R. 3310

Section 1.

Section 1 defines the short title of the legislation as the `Federal Communications Commission Consolidated Reporting Act of 2012.'

Section 2.

Section 2 adds section 14 to the Communications Act.

New Section 14(a)--Communications Marketplace Report. This subsection requires the Commission to publish and submit to Congress a Communications Marketplace Report timed to the two-year congressional cycle. By requiring the submission of that report in the last quarter of every even-numbered year, each new Congress will have a fresh review of the communications marketplace when it assumes office. Requiring the Communications Marketplace Report every other year rather than every year should also reduce the administrative burden on the Commission and the reporting burden on the public.

New Section 14(b)--Contents. This subsection specifies the contents of each Communications Marketplace Report.

Paragraph (1) requires the FCC to assess the state of competition in the communications marketplace across all providers of communications, including, for example, telecommunications carriers, broadcasters, cable operators, broadband providers, satellite providers, and online voice and video providers. This section of the report is intended to consolidate the ORBIT Act Report, see Communications Satellite Act of 1962 Sec. 646, the Satellite Competition Report, see Pub. L. No. 109-34 4, the Status of Competition in the Market for the Delivery of Video Programming Report, see Communications Act of 1934 628(g), the Report on Cable Industry Prices, see Communications Act of 1934 623(k), and the State of Competitive Market Conditions with Respect to Commercial Mobile Radio Services Report, see Communications Act of 1934 332(c)(1)(C). The consolidation of the reports is not intended to prevent the Commission from examining the same issues it previously reviewed separately, but rather to encourage a more holistic approach. Nor is the Commission required to assess the state of competition in the exact same way it has done so in the past, but instead should use the best economic and technical analysis feasible to examine competition within the marketplace as a whole.

Paragraph (2) requires the FCC to assess the state of deployment of communications capabilities in the United States, including advanced telecommunications capability, regardless of the technology used. This section of the report is intended to consolidate the Broadband Deployment Report, see Telecommunications Act of 1996 Sec. 706(b), and the International Broadband Data Report, see Broadband Data Improvement Act 103(b). It is not meant to affect whatever authority, if any, section 706(b) of the Telecommunications Act of 1996 grants the Commission. As with the competition section of the report, this section does not delineate the precise metrics the FCC must use in carrying out its assessment; instead, the agency should use the best available information to assess the state of deployment, taking into account the variety of technologies used to deploy broadband infrastructure throughout the United States.

Paragraph (3) requires the FCC to assess whether laws, regulations, or regulatory practices (regardless of the level of government that established or enforces those laws, regulations, or regulatory practices) pose a barrier to competitive entry into the communications marketplace or to the competitive expansion of existing providers of communications services. This section of the report is intended to incorporate the Triennial Report Identifying and Eliminating Market Entry Barriers for Entrepreneurs and Other Small Businesses, see Communications Act of 1934 Sec. 257(c). As with the competition and deployment sections of the report, this section does not bind the Commission to highlight with particularity regulations it has passed to overcome barriers to competitive entry and competitive expansion, although it is free to examine such regulations as a part of its functional assessment of regulatory barriers.

Paragraphs (4)-(5) require the FCC to identify the topics it plans to address over the next two years as a result of these assessments and to report on its progress on those topics previously identified. This section of the report is not intended to consolidate any existing report. This section is, however, intended to facilitate congressional oversight by providing a guide to Congress regarding the topics the Commission is likely to focus on, along with references to the first three sections of the report, as appropriate, to demonstrate how the FCC's assessments have shaped its agenda. By identifying a topic in this section, the Commission is not binding itself to act on that topic; conversely, the Commission remains free to act on topics not so identified. Nevertheless, this section requires the Commission to report back on what actions, if any, it took to address each topic identified in the previous report, and the Commission is expected to make a good-faith attempt to identify topics and address topics previously identified.

New Section 14(c)--Special Considerations. This subsection identifies four special considerations that the FCC must take into account when drafting the Communications Marketplace Report.

First, when assessing competition, the Commission must take into account all forms of competition, including intermodal, facilities-based, and Internet-based competition. This is a response to the traditional competition reports conducted by the Commission that examine competition within a single industry segment despite competition from non-traditional industry segments, such as competition to terrestrial radio broadcasters from satellite radio, Internet-based radio, and online music marketplaces. The inclusion of facilities-based competition reflects the importance of deployment of physical infrastructure for competitive purposes, as reflected in the second section of the report. It is not meant, however, to preclude the assessment of competition from resellers, such as mobile virtual network operators. The inclusion of Internet-based competition is intended to ensure that the FCC takes into account the growing challenge to established business models presented by online competition in all its forms.

Second, when assessing deployment, the Commission must compile a list of geographical areas that are not served by any provider of advanced telecommunications capability. This is intended to emphasize, as the Broadband Deployment Report did, see Telecommunications Act of 1996 Sec. 706(c), the importance of identifying the areas of the country that are unserved by any provider of advanced telecommunications capability.

Third, the Commission may use readily available data to draw appropriate comparisons between the United States communications marketplace and the international communications marketplace and to correlate its assessments with demographic information. In preparing its International Broadband Data Reports in the past, the Commission has noted that `many nations do not collect the data required to achieve fully the international comparisons' and that even when data is available, it may not be useful for drawing comparisons with the United States. International Comparison Requirements Pursuant to the Broadband Data Improvement Act International Broadband Data Report, IB Docket No. 10-171, Second Report, 26 FCC Rcd 7378, 7380, para. 4 (2011). This provision is intended to recognize these difficulties and empower the FCC to consider readily available data to draw appropriate and accurate comparisons and correlations in conducting the assessments for the Communications Marketplace Report.

Fourth, when assessing competition and regulatory barriers, the FCC must specially consider market entry barriers for small businesses. This special consideration is intended to ensure that the Commission pays special attention to the challenges and opportunities facing small businesses in the communications marketplace.

Section 3.

This section eliminates the eight reports consolidated into the Communications Marketplace Report, namely the ORBIT Act Report, see Communications Satellite Act of 1962 Sec. 646, the Satellite Competition Report, see Pub. L. No. 109-34 4, the Status of Competition in the Market for the Delivery of Video Programming Report, see Communications Act of 1934 628(g), the Report on Cable Industry Prices, see Communications Act of 1934 623(k), the State of Competitive Market Conditions with Respect to Commercial Mobile Radio Services Report, see Communications Act of 1934 332(c)(1)(C), the Broadband Deployment Report, see Telecommunications Act of 1996 706(b), the International Broadband Data Report, see Broadband Data Improvement Act 103(b), and the Triennial Report Identifying and Eliminating Market Entry Barriers for Entrepreneurs and Other Small Businesses, see Communications Act of 1934 257(c). As described above, consolidating these reports is not intended to preclude the Commission from continuing to collect and report similar data if doing so is an accurate and efficient method of assessing competition, deployment, or regulatory barriers.

This section eliminates the Report on Competition between Wire Telephone and Wire Telegraph Providers, see Communications Act of 1934 Sec. 215(b), given the evolution of the communications marketplace past telegraph services.

This section strikes from the Communications Act several reports that have either expired of their own accord or been repealed by the Federal Reports Elimination and Sunset Act of 1995, Pub. L. No. 104-66. An example of the former is a report on the rescheduling of Auction 31 (Upper 700 MHz), which was completed as part of Auction 73 in 2008. See Communications Act of 1934 Sec. 309(j)(15)(C)(iv). An example of the latter is the annual report of the Commission, see Communications Act of 1934 4(k), which was identified in the 1995 Clerk's List of Reports to be Made to Congress, see House Doc. No. 103-7, at 167, and effectively terminated in 2000, see Pub. L. No. 104-66, 3003(a)(1). This section is not intended to remove the discretion of any agency to continue to report to Congress on those topics should it find doing so useful.

Section 4.

Section 4 specifies that this legislation does not alter the authority of the Commission in any way. Specifically, this legislation should not be construed to expand or contract the Commission's ability to collect data nor should this legislation be construed to alter any authority or obligation the Commission has under section 706 of the Telecommunications Act of 1996, if any.

Friday, May 25, 2012

FCC Looks at Mobile Privacy and Data-Security Regulations

The Federal Communications Commission released a public notice on Friday, May 25th, seeking comment on the privacy and data-security practices of mobile providers with respect to customer information stored on consumers’ mobile communications devices, and the application of existing privacy and security regulations to that information.  In the public notice, the FCC recognizes that there have been substantial changes in the industry since it last inquired on this issue five years ago – changes not only in technology, but also in way that consumers use their mobile devices as well as the way that carriers gather customer-specific data. The public notice, specifically references the numerous letters that Members of Congress have recently sent to mobile providers regarding the use of Carrier IQ software.  

Therefore, in light of these developments, the FCC indicates that it seeks to refresh the record in its open docket related the implementation of the CPNI regulations that Congress authorized in the Telecommunications Act of 1996.  Among other things, the FCC generally asks for input on how privacy and data-security practices have evolved since the last inquiry in 2007, as well as the applicability and significance of a telecommunications carriers’ duty under Section 222 to protect customer information, and other statutory obligations.

Comments will be due 30 days after publication in the Federal Register, and reply comments will be due 45 days after this publication. 

The FCC's belated entry in this area follows much activity in Congress (in both the House and Senateinvestigating myriad issues related to online and mobile privacy and data security as well as the appropriate role that Congress should permit regulatory agencies to take as far as policing online and mobile privacy so that it will not stifle innovation and economic growth.  Meanwhile, the White House has also entered the fray and indicated it can't wait for Congress to deliberate.  So while the Obama Administration's Commerce Department has proposed a privacy bill of rights and is attempting to get stakeholders to develop voluntary codes of conduct, the Federal Trade Commission appears eager to stretch its existing authority to regulate online and mobile privacy, even without specific authority from Congress.   

If you have any questions regarding privacy and data-security regulatory or legislative issues, please feel free to contact the TLP team

Thursday, May 24, 2012

Congress to Hold Hearing on "International Proposals to Regulate the Internet" on May 31st

The House Energy and Commerce Committee's Subcommittee on Communications and Technology has announced it will hold a hearing entitled "International Proposals to Regulate the Internet" on Thursday, May 31, 2012, at 10:15 a.m. 

Appearing as witnesses at the hearing will be: Ambassador Philip Verveer, the Deputy Assistant Secretary of State and U.S. Coordinator for International Communications and Information Policy; FCC Commissioner Robert McDowell; Ambassador David A. Gross, the former U.S. Coordinator for International Communications and Information Policy (on behalf of the World Conference on International Telecommunications Ad Hoc Working Group); Sally Shipman Wentworth of the Internet Society; and Vint Cerf of Google.

FCC Commissioner McDowell has been leading the effort to draw attention in the United States to a potential new international treaty that would give "the United Nations unprecedented powers over the Internet." Earlier this year, Commissioner McDowell wrote an op-ed in the Wall Street Journal indicating that "[d]ozens of countries, including Russia and China, are pushing hard...to establish 'international control over the Internet' through the International Telecommunication Union (ITU), a treaty-based organization under U.N. auspices." He also stressed that "these new regulatory proposals would upend the Internet's flourishing regime, which has been in place since 1988 [after] delegates from 114 countries gathered in Australia to agree to a treaty that set the stage for dramatic liberalization of international telecommunications."

The House Energy and Commerce Committee majority staff's briefing memorandum for the hearing is available here.

And, the live webcast of the hearing will be available here.

If you have any questions regarding this hearing or any other activity in Congress that could impact the telecommunications, media and technology sectors, please contact Vance Schuemann or any other member of the TLP team.

Wednesday, May 23, 2012

June Open Commission Meeting - Tentative Agenda

The Commission has announced its tentative agenda for the June Open Meeting, scheduled for Wednesday, June 13, 2012 at 10:30.


Equipment Authorization Rules Regarding Grantee Codes for Certified Radiofrequency Equipment Report and Order:
  • The Commission will consider a Report and Order to modify the equipment authorization rules to increase the supply of codes assigned to parties applying for equipment certification.

4..9 GHz Band Report and Order and Further Notice of Proposed Rulemaking:
  • The Commission will consider a Report and Order and Further Notice of Proposed Rulemaking to encourage improved spectrum efficiency and greater use of the 4940–4990 MHz (4.9 GHz) band.

If you have any questions about the Meeting, please feel free to contact the TLP Team

Thursday, May 17, 2012

May 24th FCC Open Meeting Agenda Released

The FCC has released its agenda for the Open Meeting scheduled for Thursday, May 24 at 10:30 am.  The Commission notes that it is waiving the sunshine rules until 5:00 p.m. on Friday, May 18th, and therefore presentations on the below items will be permitted until that time.


The Commission will consider the following:

(1)   Utilizing Rapidly Deployable Aerial Communications Architecture in Response to an Emergency (PS Docket No. 11-15)
  • The Commission will consider a Notice of Inquiry examining the role of deployable aerial communications architecture (DACA) in facilitating emergency response by rapidly restoring communications capabilities in the immediate aftermath of a catastrophic event.
(2)   Amendment of the Commission’s Rules to Provide for the Operation of Medical Body Area Networks (ET Docket No. 08-59)
  • The Commission will consider a Report and Order and Further Notice of Proposed Rulemaking to establish service rules and an allocation for Medical Body Area Networks and seek comment on the selection of an MBAN coordinator.
(3)   Improving Spectrum Efficiency Through Flexible Channel Spacing and Bandwidth Utilization for Economic Area-based 800 MHz Specialized Mobile Radio Licensees (WT Docket No. 12-64); Request for Declaratory Ruling that the Commission’s Rules Authorize Greater than 25 kHz Bandwidth Operations in the 817-824/862-869 MHz Band (WT Docket No. 11-110)
  • The Commission will consider a Report and Order that will provide EA-based 800 MHz licensees with the flexibility to better utilize  spectrum to transition networks from legacy 2G technologies to advanced wireless technologies.

The meeting may be streamed at www.fcc.gov/live.  Please feel free to contact the TLP Team if you hvae any questions. 

Thursday, May 3, 2012

Tentative Agenda For FCC May Open Commission Meeting

The FCC has announced the tentative agenda for the May Open Commission meeting, scheduled for May 24, 2012 at 10:30 a.m.

Deployable Arial Communications Architecture Notice of Inquiry
The Commission will consider a Notice of Inquiry examining the role of deployable aerial communications architecture (DACA) in facilitating emergency response by rapidly restoring communications capabilities in the immediate aftermath of a catastrophic event.

Medical Body Area Networks (MBANs) Report and Order and Further Notice of Proposed Rulemaking
The Commission will consider a Report and Order and Further Notice of Proposed Rulemaking to establish service rules and an allocation for Medical Body Area Networks and seek comment on the selection of an MBAN coordinator.

Removing Barriers to Broadband Deployment in the 800 MHz Band Report and Order
The Commission will consider a Report and Order that will provide EA-based 800 MHz licensees with the flexibility to better utilize spectrum to transition networks from legacy 2G technologies to advanced wireless technologies.

The meeting may be streamed at fcc.gov/live


If you have any questions about the meeting, please feel free to contact the TLP Team.

Wednesday, May 2, 2012

Mobility Fund Phase I Auction Procedures Announced

The FCC has announced the competitive bidding procedures for the Mobility Fund Phase I Auction (“Auction 901”), scheduled for September 27, 2012.  This will be the first-ever reverse auction for Universal Service support, and will award up to $300 million that was reserved out of savings from the USF reforms late last year.  To be eligible to participate in this auction, applicants must submit a short form application (FCC Form 180) that is timely-filed, accurate and complete.   

In this reverse auction, bidders will indicate the amount of one-time support they need to deploy service meeting performance standards in unserved areas within the required timeframe.  Winning bidders will be obligated to deploy either 3G service within two years or 4G service within three years of the award in census blocks where such services are unavailable.  Bidders will compete not only against other carriers that may be seeking support in the same areas, but also against carriers bidding for support in other areas nationwide.  Support will be awarded based on the lowest bid amount submitted, but will not be awarded to more than one provider per area.

As you may recall, this one-time support offered under Phase I of the Mobility Fund is in addition to any ongoing support provided under existing high-cost universal service program mechanisms.  The Commission will offer an additional $50 million in one time support to Tribal Lands through a Tribal Mobility Fund Phase I.  Phase II of the Mobility Fund will provide $500 million annually for ongoing support of mobile services. 

The Public Notice, released today, details the procedures for Auction 901, including pre-auction and post-auction requirements, determines the census blocks eligible for support, and establishes the window for parties to file applications to participate.  A summary of eligibility blocks can be found here, along with a listing of the Top 100 CMAs by Population


If you have any questions regarding the above procedures, please feel free to contact the TLP Team.