WASHINGTON, DC - Sheppard, Mullin, Richter & Hampton LLP has added three partners to the firm's Business Trial practice group and Communications team: Gardner Gillespie, Dave Thomas, and Paul Werner. Gillespie, Thomas and Werner join Sheppard Mullin's Washington, D.C. office from Hogan Lovells’ Washington office. To read the full press release click here.
The FCC’s recent DTV enforcement actions made one thing clear – the Commission is being vigilant in the enforcement of its digital television (or “DTV”) regulations. On April 9, 2008, the FCC adopted notices of apparent liability (“NALs”) against eleven companies for mislabeling analog-only television sets with no digital tuners, leaving full V-chip functionality out of DTV sets, and shipping analog-only sets with no digital tuners. The proposed fines total $6.6 million. The FCC also issued consent decrees against seven companies that collectively agreed to pay $3,445,000 for V-chip violations.
Continue Reading...I. Legislative Branch Activity
A. Senate Committee Passes Three Telecom Bills.
On July 19, the Senate Commerce Committee approved three telecommunications bills: a broadband data bill (S-1492), a number porting measure (S-1769), and an indecency bill (S-1780). The broadband data bill, as passed by the Committee, directs the Commission to use Form 477 data to determine broadband service tiers, creating a separate tier for advanced services. The requirements for Form 477 would be altered to identify actual numbers of broadband connections associated with subscribers. In addition, the FCC would be allowed to choose whether to utilize 5-digit or 9-digit zip codes, or census tract information.
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A. Senate Committee Passes Caller ID Spoofing Bill.
On June 28, the Senate Commerce Committee, by a voice vote, passed an anti-spoofing bill (S-704). This bill orders the FCC to write rules within 6 months of enactment and would impose civil and criminal penalties up to $10,000 per violation, capped at $1 million. The House passed a similar bill on June 12 (HR-251), which was referred to the Senate Commerce Committee. Little debate occurred and the effort maintains strong bipartisan support.
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A. Inouye Introduces Broadband Deployment Bills.
On May 24, Sen. Inouye (D-HI) presented a bill (S.1492), which seeks to improve upon the quality of data collection used for FCC broadband status reports. Instead of the current standard use of 5 digit zip codes, the bill calls for expansion to 9 digit codes, thus highlighting underserved areas more precisely. Sen. Inouye's bill demands that the FCC reevaluate its 200 kbps definition of high-speed service, and it would create a "2nd generation" level that has enough bandwidth for uses like streaming video.
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A. Senate Commerce Committee Meets to Discuss Universal Service.
On March 1, the Senate Commerce Committee invited Commissioners Tate and Copps, as well as other regulatory officials, to discuss the Universal Service Fund (USF). Senators from rural areas demanded that broadband needs to play a part in the USF program. Commissioner Copps endorsed adding broadband, but added that he could probably not gather the two additional votes necessary. Commissioner Tate said, while she believes the FCC has the authority to make the change, that adding broadband to the USF requires further study. Other panelists insisted that Congressional action would be necessary to ensure that USF issues are addressed quickly, as changes by the FCC could take several years.
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A. FCC Commissioners Go Before Senate Commerce Committee.
On February 1, all five FCC Commissioners met with the newly Democratically controlled Senate Commerce Committee. Committee Chairman Senator Inouye (D-HI) expressed concern over a special access provision in the AT&T/BellSouth merger and questioned Chairman Martin about his stated qualms over its legality. Many lawmakers were eager to discuss the country's low standing worldwide in broadband deployment. Martin responded that making wireless broadband an information service might be possible and would ease regulations that inhibit expedited growth. Other matters brought up by Senators included the privacy of phone records, E-911, the Universal Service Fund, and public input on any new broadcast ownership rules.
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A. Optimism for Major Telecom Legislation Waning.
As Congressmen settled into the new Congress in January, staffers for Senate Commerce Committee Chairman Daniel Inouye confirmed that he will seek to pass smaller, more targeted communications bills in this session. The key telecom companies such as Verizon, BellSouth, and AT&T, who supported GOP-led legislation, are expected to withdraw support for any major Democratic measures. Inouye has called for a hearing on the state of the telecom marketplace for February 1. All five FCC commissioners will be there to present their testimonies and answer what are expected to be tough questions from Democrats.
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A. Congress Passes Pretexting, Two Other Bills in Lame Duck Session.
As the 109th Congress drew to a close in December, three telecom bills managed their way through the halls of Congress. First and foremost, the Senate finally approved a ban on pretexting (HR-4709), which the House had passed in April. In addition to banning the acquisition of phone records through fraudulent means, the bill would prohibit the unauthorized sale or transfer of confidential phone records, or the receipt of such information with the knowledge that it was fraudulently obtained.
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A. EchoStar Pleas for Congressional Help.
Earlier this year, the U.S. Court of Appeals for the 11th Circuit found EchoStar in violation of the Satellite Home Viewer Act by regularly and unlawfully delivering out-of-market stations in competition to local stations that carry the same network programming. The Court set a deadline of December 1 for EchoStar to shutdown all distant networks, those deemed illegal and legal. An effort to reach a settlement with broadcasters failed when Fox and its affiliates refused to sign on. In late November, the Court of Appeals rejected EchoStar's final plea to delay the December 1 cutoff.
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A. Surveillance Bill Stalls in Senate.
There was little activity in Congress this month as most members were out on the campaign trail. The Senate did not address the surveillance bill (HR-5825) passed by the House in September, 232-191. The bill, in effect, would authorize an existing National Security Agency surveillance program by setting rules for warrantless surveillance in certain circumstances.
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A. Port Security Bill Clears Conference.
In probably its last major action before the mid-term election recess, Congress approved the Security and Accountability for Every (SAFE) Port Act of 2006 by a vote of 409-2. The relevant FCC provisions are in Title VI. Section 602 directs the FCC to adopt a protocol to enable Commercial Mobile Radio Services (CMRS) providers to provide emergency alerts to subscribers. CMRS licensees may voluntarily elect to transmit emergency alerts to subscribers. If CMRS licensees elect not to transmit emergency alerts, they must provide clear and conspicuous notice at the point of sale of any devices with which its service is included that it does not do so. In addition, CMRS licensees that elect not to transmit emergency alerts also must notify existing subscribers of such election. Section 603 directs the FCC to establish a Commercial Mobile Service Alert Advisory Committee to make recommendations on CMRS emergency alert protocols.
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A. Senate Fails to Pass Telecom Bill Before August Recess.
The Senate shut down for August recess without passing the telecom bill (HR-5252), despite Commerce Committee Chairman Stevens’ (R-AK) week-long drive to round up the 60 votes needed to avoid a filibuster. Sen. Sununu (R-NH) was helping Stevens to round up votes. According to Sen. Sununu, technology is moving so quickly that the bill will be obsolete by next Congress.
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A. House Passes Interoperability Bill.
On July 25, the House passed 414-2 a bill (HR-5852) that would coordinate national, state, and local emergency communications efforts through a new Department of Homeland Security. The head of the new DHS emergency communications office would oversee all such communications nationwide. States would have to write plans and coordinate regionally among federal, state, and local officials. The bill would tie award of DHS grants to development of “effective statement interoperable communications plans.”
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The legislative news of the month surrounded the three-day markup and subsequent passage on June 28 of the Senate telecom bill (S.2686) by the Commerce Committee. The bill passed by a vote of 15-7. Perhaps more importantly, there was an 11-11 tie on the primary network neutrality amendment offered, which Chairman Stevens then broke to defeat the measure. One Republican, Sen. Olympia Snowe (R-Maine), a co-sponsor of the bill, crossed over to vote with the Democrats. If the network neutrality amendment had passed, the overall bill likely would not have made it through the full Senate and any subsequent conference with the House, because the issue is so divisive.
Continue Reading...I. Legislative Branch Activity
To no one's surprise, this month Senate Commerce Committee Chairman Ted Stevens (R-AK) introduced comprehensive telecommunications legislation. Meanwhile, in the House, a jurisdictional battle intensified between the Commerce and Judiciary Committees over "net neutrality" provisions in the House bill. Time is growing short, however, for Congress to pass any communications legislation. Below we discuss the Senate bill and the jurisdictional tug of war in the House.
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