Legislative Activity

House Subcommittee Asks FCC for Nationwide Number Portability

On July 9, all the members of the Communications and Technology Subcommittee (Communications Subcommittee) of the House Energy and Commerce Committee (House Commerce Committee) wrote a letter to Federal Communications Commission (FCC) Chairman Tom Wheeler asking him to ensure that consumers may take their existing phone numbers with them if they choose to switch carriers. Specifically, the Communications Subcommittee members noted that under the FCC’s current number portability rules, consumers that switch from nationwide carriers to non-nationwide carriers may not be able to keep their numbers, which puts non-nationwide carriers at a disadvantage as consumers generally prefer to keep their numbers when they switch carriers. Citing a recent white paper by the North American Numbering Council (NANC), the Communications Subcommittee members argued that the inability of consumers to port-in existing numbers would lead to consumer confusion when attempting to switch providers. They urged the FCC to support nationwide wireless number portability across all providers.

Telehealth Bill Returns to House for Consideration

On July 7, Reps. Mike Thompson (D-CA), Gregg Harper (R-MS), Diane Black (R-TN), and Peter Welch (D-VT) introduced H.R.2948, the Medicare Telehealth Parity Act of 2015. A prior version of this bill, H.R.5380, discussed here, was introduced in 2014 by Rep. Thompson and was projected to be reintroduced in 2015. The bill proposes to expand the coverage of telehealth to include services such as remote monitoring for specific chronic conditions. The bill also aims to remove the geographic barriers existing under current law to allow telehealth services in rural and underserved areas with the ultimate goal of putting telehealth services on par with in-person healthcare. The legislation has the support of several health industry groups, including the American Heart Association, American Stroke Association, and the American Telemedicine Association. The bill was referred to the House Commerce Committee and the House Committee on Ways and Means (House Ways and Means Committee).

This Week’s Hearings:

• Tuesday, July 14:  The Communications Subcommittee of the House Commerce Committee will hold a hearing entitled “Promoting Broadband Infrastructure Investment.”

• Wednesday, July 15:  The House Committee on Small Business will hold a hearing entitled “Taking Flight:  Small Business Utilization of Unmanned Aircraft.” The hearing will examine how small businesses might use unmanned aircraft for commercial activities and the progress of the Federal Aviation Administration (FAA) of integrating them into the national airspace system.

Regulatory Activity

FCC Releases Omnibus Order Addressing 21 TCPA Petitions & Requests

On July 10, the FCC released its Declaratory Ruling and Order (Order) adopted June 18 addressing 21 “requests for clarification” of the FCC’s rules implementing the Telephone Consumer Protection Act (TCPA). The content of the Order was discussed in our post here.

FCC Chairman Announces Proposals for New Copper Retirement Rules

On July 10, FCC Chairman Tom Wheeler released a Fact Sheet discussing proposals to protect “consumers, competition and public safety” as telecommunications providers replace copper networks with “next-generation” networks. The proposals are contained in two items on which the FCC will vote at its August 6 Open Meeting. According to the Fact Sheet, the first item, a Report and Order, would require providers of networks that “need backup power to keep operating during a power outage” to offer consumers the option to buy up to 8 hours of standby backup power “so they can use their home phones during power outages.” Within three years, those providers would be “required to offer an option for 24 hours of standby power.”

A separate Report and Order, Order on Reconsideration and Further Notice of Proposed Rulemaking, if adopted, would:  (1) “protect consumers” by requiring that consumers and interconnecting carriers be notified of plans to retire copper networks and by defining “retirement” so as to “prevent retirement of networks by neglect” (sometimes referred to as “de facto” retirement); and (2) “preserve competition” by requiring that “replacement services” be offered to competitive providers at rates, terms and conditions “reasonably comparable” to those of existing services (which would be an interim measure pending the FCC’s completion of a proceeding on the issue) and by clarifying that wholesale-only carriers are still required to follow discontinuance procedures if the discontinuance would ultimately impact retail users. The item also seeks comment on the criteria the FCC should use to evaluate whether to grant a carrier’s request to discontinue, reduce, or impair service when the carrier is installing a replacement service. According to the Fact Sheet, some of the criteria on which the FCC is seeking comment are whether replacement networks will provide the same level of connectivity to 911 services and interoperable devices (such as alarms and medical monitoring) as the legacy network, and whether the replacement network will provide the same level of network security as the legacy network.

Chairman Wheeler also posted to the FCC Blog to discuss the items circulated. The post stated that the items will “update the FCC’s rules to help deliver the promise of dynamic new networks, provide clear rules of the road for network operators, and preserve our core values, including protecting consumers and promoting competition and public safety.”

TerraCom and YourTel to Pay $3.5 Million to Resolve Consumer Privacy & Lifeline Investigations

On July 9, the FCC announced that its Enforcement Bureau (EB) had entered into a Consent Decree with TerraCom, Inc. and YourTel America, Inc. (collectively, the companies) to resolve the EB’s investigation into whether the companies “failed to protect the confidentiality of [customer] proprietary information” provided to the companies in applications for Lifeline phone services. The information at issue included names, addresses, dates of birth, Social Security numbers, and driver’s licenses. The Consent Decree states that the “vendor” for the companies stored this information in “clear, readable text” on servers accessible to the public over the Internet, which the FCC alleged violated the companies’ obligations to protect the confidentiality of proprietary information and was an unjust and unreasonable practice under the Communications Act. To resolve the matter, the companies will pay a civil penalty of $3.5 million, and will “develop and implement a compliance plan to ensure appropriate procedures” to prevent similar data breaches in the future.

Comments Due August 5 on Small Provider Exemption to Open Internet Enhanced Transparency Requirements

In the 2015 Open Internet Order, the FCC adopted “enhancements” to the Internet “transparency” requirements that require providers of broadband Internet access service (BIAS) to disclose certain information about their business and network practices. Specifically, BIAS providers are required to disclose:  (1) commercial terms including prices, fees, and data cap allowances, (2) performance characteristics including packet loss and performance, and (3) network practices relating treatment of traffic and degradation of service. Responding to “concerns from smaller providers about the compliance burden of the enhancements,” the FCC temporarily exempted from the transparency requirements all providers with fewer than 100,000 broadband subscriber connections in a June 22 Public Notice (PN).

The FCC’s Consumer and Governmental Affairs Bureau (CGB) is now seeking comment on whether to maintain that exemption, as the CGB was directed to do by the Commission in the Open Internet Order. The PN notes that the FCC did not adopt all of the transparency requirements it originally proposed in the Open Internet proceeding, that it found the requirements it did adopt to be “modest in nature,” and that the FCC did not adopt many of the requirements to which smaller providers objected, such as real-time disclosures. The CGB is also seeking comment on whether the FCC, if it maintains the exemption, should modify the small provider “threshold” of 100,000 connections. Comments on the exemption are due August 5, and reply comments are due September 4.

FCC Modifies Experimental Radio Service Rules and Seeks Further Comment

In a 2013 Report and Order, the FCC revised its rules to “modernize” its Part 5 Experimental Radio Service (ERS) rules, which “prescribe the manner in which the radio spectrum may be made available to a variety of entities to experiment with new radio technologies, equipment designs, characteristics of radio wave propagation, or service concepts related to the use of the radio spectrum.” Among the revisions adopted by the FCC were the creation of 3 new ERS licenses:  (1) a program experimental license for colleges, research laboratories, manufacturers and health care institutions “to allow broad experimental authority under a single license”; (2) a compliance testing license available to FCC-recognized testing laboratories; and (3) a medical testing license to permit health care facilities “to undertake clinical trials of cutting-edge wireless medical technologies.”

In a Memorandum Opinion and Order (MO&O) released July 8, the FCC modified its ERS rules to allow conventional ERS licensees and compliance testing licensees to use spectrum bands allocated to “passive services” (which are non-transmitting, receive-only services such as radio astronomy) in “some circumstances.” The FCC also:  (1) granted a request from Medtronic that the FCC allow limited cost recovery for medical licensees (which is otherwise prohibited under rules banning the marketing of radio frequency devices prior to equipment authorization) if the recovery is conducted pursuant to the FCC”s market trial rules, and (2) granted a request from Sirius XM and EchoStar clarifying that all participants in the Emergency Alert System are entitled to notification of and protection from interference from program experiments that might affect them.