The Front Lines - May 13, 2005

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Advancing The Cause of Competition in the Telecommunications Industry


In an Order released May 5, 2005, the Federal Communications Commission ("FCC") denied a Petition, filed by SBC Communications ("SBC") in February of last year, in which SBC requested forbearance from Title II common carrier regulation applicable to "IP Platform Services," which SBC defined as "those services that enable any customer to send or receive communications in IP format over an IP platform, and the IP platforms on which those services are provided."

The FCC found that it would be inappropriate to grant SBC's petition because it asks the Commission to forbear from requirements that may not even apply to the facilities and services in question. The FCC also found that SBC's petition and the evidence in support thereof were not sufficiently specific to enable the Commission to determine whether the requested forbearance satisfies the requirements of section 10. Although SBC's petition asked the FCC to forbear from applying Title II of the Act to IP Platform Services, SBC did not concede in its petition that Title II currently applies to such services. SBC thus acknowledges, in its forbearance petition that the Commission has not yet decided the extent to which IP-enabled services are covered by Title II and its implementing rules. In its Order, the FCC concluded that SBC's petition was procedurally flawed because section 10 neither contemplates nor permits grants of forbearance relating to obligations that "may or may not" apply to the telecommunications carrier or telecommunications service at issue. The FCC also denied SBC's petition for the independent reason that it was not sufficiently specific to determine whether the requested forbearance satisfied the requirements of section 10. According to the FCC, "we are unable to determine with certainty which services and facilities SBC's petition is meant to cover, as well as the specific statutory and regulatory provisions from which SBC seeks forbearance." Without a clear understanding of the scope of the petition, the FCC stated that it could not determine whether SBC's request for forbearance satisfied the criteria of section 10(a) and that granting SBC's petition under such circumstances would create regulatory uncertainty.

Similarly, SBC stated that its petition was intended to apply only to the "common carrier" provisions of Title II, but, according to the FCC, SBC never clearly identified which specific provisions of Title II for which forbearance was sought. According to the FCC, the degree of uncertainty with respect to the intended scope of SBC's petition would make it difficult, if not impossible, to determine that the three prongs of section 10(a) had been satisfied. For all these reasons, the FCC denied SBC's forbearance petition.


The FCC announced NECA's proposed Telecommunications Relay Service ("TRS") Fund contribution factor for the period beginning July 1, 2005 through June 30, 2006. NECA proposed a carrier contribution factor of

0.00528, and a fund size requirement of $413.3 million. The proposed factor reflects a significant increase over the current factor, which is $0.00356. TRS contributions are calculated based on interstate and international telecommunications end user revenue, as reported in interstate service providers' FCC Form 499-A.


The FCC is requesting comments on an April 29, 2005, petition filed by a coalition of 33 organizations, including trade associations, individual companies, and non-profit entities engaged in interstate telemarketing activities ("Joint Petitioners"). The Joint Petition raises issues concerning the scope of the FCC's jurisdiction over interstate telemarketing calls under the Telephone Consumer Protection Act ("TCPA"). In particular, Joint Petitioners ask the Commission to issue a ruling declaring the Commission's exclusive regulatory jurisdiction over interstate telemarketing calls and barring state regulation of such calls.

Joint Petitioners assert that, in the TCPA, Congress sought to "establish uniform national standards that balance the concerns of consumers with the legitimate interests of telemarketers." According to Joint Petitioners, states have adopted and proposed "divergent rules applicable to interstate telemarketing that undermine the desired uniform federal regulatory regime." Citing dozens of existing and proposed state laws that differ from the Commission's TCPA rules and that do not distinguish between intrastate and interstate telemarketing calls, Joint Petitioners contend that these state regulations place "undue and at times impossible compliance burdens on interstate telemarketers, and lead[] state courts in enforcement actions to.impose substantial fines on telemarketers for interstate calls expressly permitted by the federal rules."

To resolve this situation, Joint Petitioners ask the FCC to assert its federal authority to preempt state laws and regulations which conflict or are otherwise not in keeping with the federal program adopted pursuant to the TCPA.

Comments on the Petition are due 30 days after publication of the FCC Notice in the Federal Register.


In a further Notice of Proposed Rulemaking regarding payphone services, the FCC is seeking current and accurate data on the average number of compensable dial-around calls made from payphones on a monthly basis in order to establish a new per call payphone compensation rate.

In its First Payphone Order, the FCC fixed the default compensation rate at $0.35 per call. This rate was recently increased to $0.494.

Data submissions in the form of Comments on the NPRM are due June 27,

2005 with Replies due July 25, 2005.


On May 11, 2005, the FCC ordered the implementation of mandatory electronic filing for all international services.

Electronic filing has been the method of choice for many applicants since establishment of the FCC's internet-based filing systems more than six years ago. According to the FCC, the transition to mandatory electronic filing for all international services will enable the Commission to further streamline its filing processes, reduce unnecessary costs associated with processing paper filings, and respond more efficiently to evolving user needs.

The FCC's Order applies to applications and associated filings in connection with: section 214 authorizations; cable landing licenses; accounting rate changes; assignment of data network identification codes; recognized operating agency status; assignment of an international signaling point code; and foreign carrier notifications.

The requirement for electronic filing will take effect in several phases. First, mandatory electronic filing of applications for international telecommunications services that can currently be filed via IBFS will take effect following a 60-day transition period that will begin this Spring. These include:

  • applications for initial International Section 214 Authority
  • assignments and transfers of existing International Section 214
  • Authority requests for Special Temporary Authority related
  • to International Section 214 Authority
  • applications for a new Submarine Cable Landing License
  • new or modified international Accounting Rate Change filings
  • requests for initial assignment of Data Network Identification
  • Codes notifications of Foreign Carrier Affiliation
  • requests for Recognized Operating Agency status
  • request for initial assignment of an International Signaling Point
  • Code

Next, in cases where electronic forms are not currently available, mandatory electronic filing will be phased-in as IBFS is enhanced to accept the filings. As each new electronic form is available, the International Bureau will release a public notice announcing the start of a 60-day transition period, after which only electronic filings will be accepted. Paper filings made after the close of the transition period will be returned to applicants without processing. ====================================

The Front Lines is a free publication of The Helein Law Group, LLP, providing clients and interested parties with valuable information, news, and updates regarding regulatory and legal developments primarily impacting companies engaged in the competitive telecommunications industry.

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Jonathan Marashlian
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