Monday, February 24, 2014

CPNI Certifications Due Monday, March 3

All telecommunications and interconnected VoIP providers must file an annual Customer Proprietary Network Information (“CPNI”) report for calendar year 2013 by March 3, 2014 (these reports are usually due on March 1, but this date falls on a weekend this year so the deadline is rolled over to the next business day).  The CPNI reports certify that telecommunications providers are in compliance with the Commission’s CPNI rules.

The FCC’s CPNI rules protect the security of personal data, like phone numbers and call log information, that consumers disclose to their service providers as a result of their business relationships.  The rules require telecommunications providers to establish and maintain systems that protect this CPNI.  The rules also require providers to file an annual certification that documents (1) their compliance with the rules, (2) complaints they received from consumers regarding CPNI, and (3) actions they took against data brokers.  The FCC intends to strictly enforce its CPNI rules, and if a telecommunications provider fails to comply with the rules or the certification requirement, then the Commission may impose a forfeiture of up to $160,000 for each violation, or each day of a continuing violation, up to a maximum fine of $1,575,000.

The FCC’s most recent Enforcement Advisory contains Frequently Asked Questions, a draft CPNI certification template, and the full text of the CPNI rules.  Certifications may be filed online at

If you have any questions about this filing, or the Commission's filing procedures, please do not hesitate to contact us.

Thursday, February 20, 2014

FCC Seeking Comment on FCC Process Reform

The Commission is seeking comment on a Report on FCC Process Reform prepared by a Commission staff working group.  The Report furthers the objective of having the agency operate in the most effective, efficient and transparent way possible.  The Report includes recommendations to advance the following goals: 
  • Improving the efficiency and effectiveness of the FCC’s decision-making process by streamlining the internal FCC review process, improving tracking accountability, and reducing backlogs; 
  • Processing items before the agency more quickly and more transparently by accelerating the overall speed of disposal of both routine and more complex matters, and ensuring the public is provided more information regarding the status of particular matters; 
  • Streamlining agency processes and data collections, including reworking essential processes such as licensing activities, internal distribution and release procedures, handling of informal consumer complaints, compliance with statutory requirements such as the Paperwork Reduction Act, and examining the FCC’s data collection practices to lessen burdens where possible, while ensuring the agency’s data collection practices are effectively tailored to evolving market conditions; 
  • Eliminating or streamlining outdated rules that are candidates for modification or elimination as a result of marketplace or technology changes that render the rules no longer necessary in the public interest;
  • Improving interactions with external stakeholders by enhancing the FCC’s public outreach and transparency, exploring innovative mechanisms for developing policy proposals, and updating the drafting process for policy documents; 
  • Maximizing the Commission’s tools and resources by ensuring effective internal communications, human resource management, and training; and
  • Modernizing the Commission’s information technology infrastructure to improve its website functionality, data management, and tracking capability. 
Comments are due March 31, 2014 in GN Docket No. 14-25.  Please feel free to contact TLP if you have any questions about this matter, or would like to discuss participating in this proceeding.

Wednesday, February 19, 2014

Chairman Wheeler Outlines the FCC's Next Steps for Net Neutrality

FCC Chairman Wheeler has released a statement charting a course for the Commission to follow in the wake of last month’s court decision striking down, in part, the FCC’s Net Neutrality/Open Internet rules. Specifically, the Commission has opened a new docket (“Protecting and Promoting the Open Internet” - GN Docket No. 14-28) to seek comment on the issues raised by the recent D.C. Circuit Verizon v. FCC decision. In addition, the Chairman intends to craft new rules that will prevent blocking, curb discrimination and ensure transparency within the confines of the court’s decision. The initial approach will be to seek a way to accomplish these goals without reclassifying broadband internet access as a Title II telecommunication service, drawing in particular on the successful approach the FCC took in the Data Roaming Order. But, the statement makes clear that reclassification remains “on the table” if warranted to accomplish the FCC’s goals.

Here is a brief summary of the statement:

New Docket:  In a separate Public Notice released today, the Wireline Competition Bureau announced the new docket, the initial focus of which is to seek comment on the issues raised by the D.C. Circuit opinion and how the Commission can lawfully proceed. The Bureau invites comments from interested parties, and notes that comments filed within the next thirty days (or by March 21) will be especially helpful, but did not set any deadlines.
New Rules:  The Chairman announced his intention to initiate a formal rulemaking proceeding with the goal of:
  • Enforcing and enhancing the transparency rule:  the FCC will consider ways to make this rule requiring disclosure of traffic management approaches more effective.
  • Fulfilling the “no blocking” goal:  the FCC will consider how to ensure that edge providers are not unfairly blocked, explicitly or implicitly, from reaching consumers, as well as ensuring that consumers can continue to access any lawful content and services they choose.
  • Fulfilling the goals of the non-discrimination rule:  the FCC will consider (1) setting an enforceable legal standard that provides guidance and predictability to edge providers, consumers and broadband providers; (2) evaluating on a case-by-case basis whether that standard is met; and (3) identifying key behaviors by broadband providers that the Commission should view with particular skepticism.
New Docket:  The initial focus in the new docket opened today is to seek comment on the issues raised by the D.C. Circuit opinion and how the Commission can lawfully proceed.  The Public Notice invites comments from interested parties, and notes that comments filed within the next thirty days (or by March 21) will be especially helpful.

FCC Authority:  Chairman Wheeler stated that the Commission will seek to rely on Section 706 of the 1996 Telecommunications Act to establish enforceable predictable rules and to identify behavior that would be disfavored.  The plan is to enforce the rules through case-by-case adjudication. The Chairman is keeping open the possibility of reclassifying broadband internet access as a Title II service and intends to keep the Title II authority open.

No Appeal of Verizon v. FCC:  The Commission will not appeal the Verizon decision.

Internet Service Providers’ Commitments:  Chairman Wheeler also intends to hold major ISPs to their commitments to honor the safeguard provisions of the Open Internet Order until new rules are put in place.

Enhance Competition:  Finally, Chairman Wheeler announced that the Commission will continue to seek opportunities to enhance Internet access competition, with one potential area of focus being legal restrictions on the ability of cities and towns to offer broadband services to consumers in their communities (as recognized by Judge Silberman’s separate opinion).  

Other Commissioners’ Statements:  In separate Statements released today, Commissioners Clyburn and Rosenworcel indicated agreement with the Chairman’s approach, while Commissioners Pai and O'Rielly expressed opposition to new rules.
TLP represented MetroPCS as a co-appellant with Verizon in the appeal of the Net Neutrality order.  (The MetroPCS appeal was dropped shortly before the oral argument when T-Mobile assumed control of MetroPCS.)  TLP also was an early proponent of the individualized decision-making approach that was upheld in the Data Roaming Order.  Consequently, we are well-versed in the legal issues that lie at the core of the new docket and look forward to assisting clients with an ongoing interest in this important proceeding. 

Please feel free to contact TLP if you have any questions or would like to discuss participating in this proceeding.

Monday, February 10, 2014

TLP Practice Expansion

For Immediate Release
Telecommunications Law Professionals PLLC (TLP) is pleased to announce that Ash Johnston has joined the Firm as a Member and Helen Disenhaus has joined the Firm as Of Counsel.

Mr. Johnston and Ms. Disenhaus have practiced together for the past seven years at Communications Law Counsel, P.C. and its predecessor Lampert, O'Connor & Johnston, P.C., where Mr. Johnston served as President.

“Both Ash and Helen have distinguished themselves as top-notch telecommunications attorneys” said Carl Northrop, Founding Member of TLP.  “The legal skills they bring and clients they are introducing to TLP will expand the capabilities of the Firm’s attorneys and the scope of the Firm’s practice.  In addition, their philosophies of providing excellent client service on a cost-effective basis make for a perfect fit at TLP.”

Messrs. Johnston and Northrop previously practiced together for 8 years, first at Bryan Cave and then at Paul Hastings.  “Both of us are glad to be back practicing together in a boutique telecommunications law firm setting,” said Johnston.

In addition, TLP is pleased to announce that Michael Lazarus, one of the original Members of TLP, has been named the Managing Member of the Firm.

TLP, whose website can be found at, is a boutique communications law specialty firm formed in 2011 whose members all specialize in communications law.  TLP helps a diverse cross-section of industry participants meet challenges in the rapidly changing, wireless, wired, high tech and media industries by providing expert, timely and cost-effective advice. The Firm has been favorably ranked in the communications law specialty area by Chambers, US News and World Report, The Legal 500 and other peer rating groups. 

Friday, February 7, 2014

Wireless Carriers Score Victory Over Net Neutrality at D.C. Circuit

The DC Circuit Court of Appeals has struck down the anti-discrimination and anti-blocking rules of the FCC’s Network Neutrality (Open Internet) Order (the “Order”), which represented the most significant regulatory obligations for carriers under the Order.  The court, however rejected challenges made to the Order’s transparency/disclosure rules, which remain in effect.  The court has remanded the case to the FCC for next steps.

As you may recall, the anti-blocking rules adopted by the FCC in the Order prohibits mobile providers (along with fixed providers) from “blocking consumers from accessing lawful websites” and from “block[ing] applications that compete with the provider’s voice or video telephony services, subject to reasonable network management.” (¶ 99).  The anti-discrimination requirement applies to fixed broadband providers only and prohibits these providers from discrimination in transmitting lawful network traffic over a consumer’s broadband Internet access service (but permits “reasonable network management”).  The transparency requirement, which still remains in effect, requires both fixed and mobile broadband providers to publicly disclose information regarding the “network management practices, performance, and commercial terms of [their] broadband Internet access services."

The D.C. Circuit’s decision to vacate the anti-blocking and anti-discrimination regulations was due to its finding that these rules subject broadband providers to common carrier treatment, which violates the Communications Act.  While the FCC argued that these rules did not constitute common carrier regulation because they regulated broadband providers’ relationship with “edge providers” (entities that provide Internet content, services, and applications) and not with “end users” (those who consume edge providers’ content, services and applications), the court rejected this argument and found that while customers of broadband providers are indeed end users, “that hardly means that broadband providers could not also be carriers with respect to edge providers.”  (51).  The court went on to state that “because broadband providers furnish a service to edge providers, thus undoubtedly functioning as edge providers’ “carriers,” the obligations that the Commission imposes on broadband providers may well constitute common carriage per se regardless of whether edge providers are broadband providers’ principal customers.” (51).  Both the anti-blocking and anti-discrimination regulations were found to impose obligations that relegated these providers to common carrier status.

The court distinguishes the transparency/disclosure rules from this holding, however.  The specific transparency/disclosure requirements were not challenged as violating the common carrier prohibition, and therefore the court did not address such a claim.  The court did find, however, that “the Commission would have adopted the disclosure rules absent the” now-vacated rules and therefore the disclosure requirements were severable from the anti-blocking and anti-discrimination requirements, and thus are still in effect.

The Court did, however, acknowledge that the FCC does have affirmative jurisdiction under Section 706 of the Communications Act with respect to the regulation of broadband Internet providers.  This holding could potentially have wide-ranging effects with respect to the FCC’s actions concerning broadband Internet providers.  While the Court did not specifically discuss the broadness of this jurisdiction, it is likely that we will see the FCC use such additional authority in future decision-making.  The Court also distinguished its holding regarding the FCC’s Data Roaming Order, which it upheld, from its decision here; the distinction was primarily that having rules that allow for mobile carriers to offer data roaming on commercially reasonable terms and conditions did not rise to the level of common carriage; while the rules put in place above for net neutrality did. 

Next Steps 

Because the court has remanded the case to the FCC “for further proceedings consistent with this opinion,” the ball is now in the Commission’s court.  This decision could be appealed en banc to the D.C. Circuit or to the Supreme Court.  The Commission may also choose to release another Notice of Proposed Rulemaking on Net Neutrality in the near future, sparking changes to the current rules, or even changes to the ways that the FCC classifies the different types of providers or services.  The FCC may also begin to explore additional regulations premised upon it’s expanded jurisdiction under Section 706.

 While no changes to the rules have been proposed by the FCC at this point, Chairman Wheeler said that he remains committed to the open Internet.  In a statement released by the Chairman, he said that the Commission “will consider all available options, including those for appeal, to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans.”  The Chairman also recognized that the D.C. Circuit’s opinion “’vests [the Commission] with affirmative authority to enact measures encouraging the deployment of broadband infrastructure’ and therefore may ‘promulgate rules governing broadband providers’ treatment of Internet traffic.’”  In addition to the official statement, the Chairman also released a blog post on the decision, further emphasizing that the “FCC’s legal ability – its jurisdiction – to oversee developments on the broadband networks on which the Internet depends is critically important.”

Other Commissioners were quick to express their views on this decision as well.  Commissioner Clyburn stated that the FCC “must ensure that consumers do not become casualties in [the Commission’s] efforts to balance competing interests.”  Commissioner Rosenworcel expressed her support for “an open Internet that drives innovation, experimentation and economic growth” and also was “pleased that the D.C. Circuit recognized the Commission’s authority to encourage the deployment of broadband infrastructure.”  Commissioner Pai stressed that the FCC should “focus on removing regulatory barriers to broadband deployment, not imposing unnecessary rules that chill infrastructure investment.”  Commissioner O’Rielly agreed with Commissioner Pai that “rather than continue to test these boundaries with ‘prophylactic’ regulations, the Commission should look for ways to remove regulatory obstacles to the broadband innovation and investment that will benefit all consumers.”

TLP was heavily involved in the Net Neutrality (and Data Roaming proceedings) at both the FCC and appellate level and will continue to monitor any next steps that are taken on this matter.  Law360 recently recognized TLP's Carl Northrop, Michael Lazarus and Andrew Morentz involvement in this case. ( subscription required).  TLP represented MetroPCS Communications, Inc.  

If you have any questions about this decision, or what it means for you, please do not hesitate to contact us.