In a move affecting nearly every type of dispute brought to the agency, the FCC adopted a Report and Order (“Order”) at its July meeting establishing a streamlined set of formal complaint rules. The new rules cover complaints against common carriers, pole attachment complaints, and complaints involving accessibility for people with disabilities. The revised procedures impose a uniform deadline for answering complaints, eliminate a number of procedural requirements, expand the discovery process, and establish a “shot clock” for FCC decisions. The reforms aim to lower the overall burden on complainants, potentially opening the door to the resolution of more disputes with the FCC instead of in court or elsewhere.
Even though this blog covers telecom litigation and enforcement, this is the first post about a formal complaint brought before the FCC. Among the reasons are that the FCC does not handle many formal complaints these days (it had only 10 docketed cases in all of 2009), and decisions on the merits are few and far between. But a decision issued last week caught our attention. In the decision, the FCC’s Enforcement Bureau took a narrow view of the Telephone Consumers Protection Act (“TCPA”).
The Enforcement Bureau held that unsolicited calls to a consumer were not TCPA violations because the messages were intended for current customers, not as solicitations to obtain new customers. Moreover, the telemarketer’s mistake in directing the calls to a non-customer did not make the calls actionable. This decision will make it harder for a consumer to prove a violation when communications are intended for current customers.
Thursday, April 8, 2010, the FCC released its Broadband Action Agenda describing the purpose and timing of more than 60 rulemakings and other actions the agency plans to conduct in order to implement its recently issued National Broadband Plan. The FCC News Release can be found here and the more detailed, 10 page Agenda is here. In addition, the Commission issued a one page chart of its proposed action items showing the actions that it hopes to initiate, with each such action listed by the quarter of the year in which it is expected to occur.
Among topics primarily covered by this blog, a few items stand out. In connection with the Universal Service Fund, reform of USF distribution is scheduled for 2Q 2010 (it is on the April 21 Meeting agenda, actually), but contribution reform is not scheduled to begin until the end of the year. Access charges, VoIP and other intercarrier compensation issues are given a 4Q 2010 start date. CLEC interconnection rights with rural ILECs are slated to be "clarified" in 3Q 2010. Pole attachment reforms — which presumably will include the formal complaint process improvements we described in a previous post — are slated for 2Q 2010.
Continue reading for more detail on the agenda.
REMINDER: These and other broadband plan documents can be accessed using our Resource Center on the right hand column of this page.
Yesterday, the DC Circuit held oral argument on Comcast’s appeal of the FCC’s ruling that Comcast ilegally blocked P2P traffic in its broadband Internet service. By all accounts, the argument went poorly for the FCC. If the FCC indeed loses the case, it could have implications for enforcement of federal Universal Service Fund (USF) contribution obligations too.
Some of the best summaries appear in MultiChannel News, The Blog of the Legal Times and Enterprise Networking Planet. The argument went so poorly that FCC Chairman Julius Genachowski issued what amounts to a "vote of confidence" for the enforcement order. And we know how well those things work out for NFL coaches.
It appears that the FCC might lose because the court feels the FCC lacks authority over broadband Internet service providers. That would have a significant impact on the FCC’s activities, particularly with the Commission on the verge of adopting (and then implementing) a National Broadband Plan.
A more narrow ground also could have significant impact on Universal Service. One argument made by Comcast was that the FCC Order is unlawful because the Commission was enforcing a 2005 Policy Statement, not an actual law. The FCC can enforce obligations that are legally binding — statutes, properly adopted rules and lawful FCC orders. But a policy statement is not itself enforceable. Its enforceability depends on the underlying legal obligations that the Commission is interpreting. If the only "authority" relied upon is the Policy Statement, the FCC would lose.
The Policy Statement is a shortcut to the harder task of adopting specific and enforceable obligations, typically through rulemaking. The FCC is taking a similar shortcut with its Universal Service rules. In a series of FCC Orders, the Commission has created a federal USF and established rules for who must contribute to the Fund and on what revenues. Each year, the FCC releases an FCC Form 499A for contributors to report their revenues for assessment purposes. The 499A comes with 30+ pages of instructions. The instructions purport to mandate a variety of actions by contributors, and they are frequently modified without any change in the underlying FCC rules or orders.
The problem is that USAC acts as if the instructions are binding rules. It is increasingly becoming more aggressive in audits and enforcement actions, relying on specific instructions that never were subject to notice and comment rulemaking, were not adopted by the FCC and could not be appealed. If the FCC loses the Comcast case because the Policy Statement is not enforceable, it will have to return to enforcing actual law. Hopefully, such an outcome will reign in USAC’s reliance on non-binding instructions, too. If so, it will not be a moment too soon.