Industry News

(Source:  OPASTCO 411, 5/4/11)

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The FCC adopted a Report & Order and Order on Reconsideration that amended its pole attachment rules to streamline access and reduce costs for attaching broadband lines and wireless antennas to utility poles. Based on successful models in a number of states, the FCC said its Pole Attachments Order balances the need for timely access to poles with the need to ensure the safety of workers and the reliability of our electric grid.

The FCC also issued a Notice of Inquiry (NOI) into how the Commission can work with other government entities and the private sector to improve policies for access to other physical spaces where wired and wireless broad-band can be deployed, including roadways and other rights of way, and locations for wireless facilities.

As part of its strategy to expand access to robust, afford-able broadband, the National Broadband Plan recommended that the FCC take steps to reduce the cost and time required for network providers to access utility poles and rights of way.

Pole Attachments: The FCC found that the lack of timelines for access to poles, the resulting potential for delay in attaching broadband equipment to poles, and the absence of adequate mechanisms to resolve disputes creates uncertainty that deters investment in broadband networks. In addition, widely varying and in-efficiently high pole rental rates – from an average of $7 per foot per year for cable companies to $20 or more for some telephone companies – further discourages broad-band deployment.

To address these concerns, the FCC is reforming its pole attachment rules for the first time since the 1990s. The FCC said the new rules fairly compensate utility pole owners for use of their poles and toughen penalties for unauthorized attachments, which will deter potentially dangerous, unauthorized attachments on poles. The revised FCC rules:

• Set a maximum timeframe of 148 days for utility companies to allow pole attachments in the communications space, with a maximum of 178 days allowed for attachments of wireless antennas on pole tops, and an extra 60 days for large orders;

• Set the rate for attachments by telecommunications companies at or near the rate paid by cable companies;

• Confirm that wireless providers are entitled to the same rate as other telecommunications carriers;

• Allow ILECs, which are not covered by the rate schedule, to file complaints with the FCC for relief from unreasonable rates, terms, and conditions;

• Clarify that a utility denying a request for attachment must explain the specific capacity, safety, reliability, or engineering concern justifying denial;

• Encourage negotiated resolution of disputes and pre-planning and coordination between pole owners and attachers, which will be taken into account in any enforcement action; and

• Remove the cap on penalties for unauthorized attachments.

Accelerating Broadband Deployment Inquiry: In a separate but related matter, the FCC launched a comprehensive inquiry into how it can work with its state, lo-cal, Tribal, and federal partners to improve policies for access to rights of way and wireless facility siting. The broad NOI seeks comment and data regarding challenges and best practices, dispute mediation, and educational efforts, and examines the need for policy guide-lines or rules.

The FCC’s NOI builds on the record begun during the FCC’s February 9 Broadband Acceleration Conference and the work of the Commission’s Technological Advisory Council. Comments in this WC Docket No. 11-59 proceeding will be due 60 days after publication of the item in the Federal Register, and replies will be due 45 days thereafter.  (Source:  BloostonLaw 4/13/11)

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The FCC has granted in part, and dismissed without prejudice, various AT&T claims in a formal complaint against YMax Communications regarding interstate switched access charges. YMax is able to participate in the transmission of the telephone calls only through its work-ing relationship with its close affiliate, MagicJack, L.P. AT&T asserted that YMax has violated the Communications Act by assessing interstate switched access charges that are not authorized in its federal tariff. YMax is a competitive local exchange carrier (CLEC) which does not provide any physical transmission facilities connecting it to the premises of any non-carrier/non-ISP [Internet service provider] persons or entities. YMax has no customers who purchase local exchange service from YMax’s state tariffs. YMax does not assess or collect fees or charges associated with the Universal Service Fund (USF). YMax does not assess or collect any End User Common Line (EUCL) charges. YMax does not have any present capability to effectuate the selection of a preferred interexchange carrier (PIC) and thus does not assess or collect any PIC charges.

AT&T’s complaint focuses on interstate switched access charges that YMax billed AT&T for two types of calls: 1) calls from an AT&T long-distance customer to a "Called Party" (i.e., "1+" calls); and 2) calls from a "Calling Party" to an AT&T toll-free long-distance service customer (i.e., "8YY" calls). The FCC said that "Called Party" means the person or entity that received an interexchange (1+) call from an AT&T long-distance service customer for which YMax has billed terminating switched access charges to AT&T; and "Calling Party" means the person or entity that placed an interexchange call to an AT&T toll-free (8YY) customer for which YMax has billed originating switched access charges to AT&T.

MagicJack, L.P. markets and sells for $39.95 a device called the magicJack®, which provides the ability to use the Internet to make and receive calls throughout most of North America. The magicJack device itself consists of a USB "dongle" on one end that plugs into a computer’s USB port, and an RJ-11 telephone jack on the other end into which an ordinary landline telephone can be plugged. MagicJack, L.P. relies on YMax to obtain tele-phone numbers and interconnection to the public switch-ed telephone network (PSTN) for magicJack purchasers. The FCC said the record indicates that virtually all of the calls at issue involved the use of a magicJack device.

The FCC said the fundamental problem appears to be that YMax chose to model its Tariff on common language in LEC access tariffs, even though the functions YMax performs are very different from the access services typically provided by LECs. As a result, YMax’s Tariff fails to unambiguously describe the kinds of services and functions that YMax performs with regard to the traffic at is-sue.

As a result, the FCC held that YMax has violated sections 203(c) and 201(b) of the Act regarding all of the switched access charges in dispute. In particular, YMax’s Tariff does not authorize any of the switched access charges in dispute, because the Called/Calling Parties are not "End Users" as defined by the Tariff. In addition, the Tariff does not authorize either of the two categories of switched access charges in dispute — End Office Switching and Switched Transport — because YMax provides no "termination" of "End User station loops" and "end user lines," as its Tariff requires. Accordingly, the FCC granted this portion of AT&T’s Com-plaint. Because the Commission found YMax’s charges unlawful, it said it need not address AT&T’s other charges, which include issues regarding the intercarrier compensation obligations, if any, associated with Voice over Internet Protocol (VoIP) traffic. The FCC noted that such issues have been raised in another proceeding.

The FCC’s ruling leaves YMax in a position where it may find itself responding to claims from carriers other than AT&T that have been paying terminating access charges to magic Jack users. The ruling, however, stops short of preventing all CLECs from collecting access charges, and leaves the door open for companies like YMax to collect access charges, depending on how they write their tariffs. (Source:  BloostonLaw 4/13/11)

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FCC Provides Guidance on Scope of ETCs' Obligations to Advertise USF Services

The FCC has responded to a request from the Universal Ser-vice Administrative Company (USAC) for written guidance regarding the requirement, set forth in section 54.201(d)(2) of the Commission’s rules, regarding the scope of the obligation that each eligible telecommunications carrier (ETC) advertise services supported by federal universal service fund (USF) support mechanisms. Specifically, USAC requested guidance regarding whether ETCs "are required to separately list each [of the nine] supported service(s) enumerated in 47 C.F.R. § 54.101," when advertising the availability of such services. After consideration of the filed comments in this proceeding and Commission precedent, the FCC determined that ETCs are not required to separately list each of the enumerated supported services in their advertisements.

Section 254 of the Communications Act of 1934, as amended, provides that only carriers that have been designated as ETCs are eligible to receive federal universal service support. Section 214(e)(1)(B) requires ETCs to "advertise the availability of [supported] services and the charges therefore using media of general distribution." Section 54.201(d)(1) of the Commission’s rules requires each ETC to "offer" the services identified in section 54.101 of the Commission’s rules, and section 54.201(d)(2) repeats the statutory requirement that the ETC "[a]dvertise the availability of such services and the charges therefore using media of general distribution."

Nothing in the Commission’s rules require an ETC to separately identify each supported service in its advertisements. The nine supported services set forth in the Commission’s rules are, from the consumer’s perspective, all components of a single service: voice telephony service. Thus, when an ETC advertises the availability of voice telephony service that includes all of the supported services, the ETC is effectively advertising the availability of the enumerated supported services. Moreover, requiring ETCs to separately identify each supported service, including services like "dual-tone multi-frequency signaling or its functional equivalent" would likely serve little purpose other than to cause confusion for at least some consumers. The FCC said its "guidance" does not impose a separate duty to publicize the availability of Life-line services. (Source:  BloostonLaw 4/13/11)

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