The Federal Communications Commission (“FCC”) released a Notice of Proposed Rulemaking (“NPRM”) December 4, 2007, seeking comments from interested parties on the question of whether to amend the FCC’s Telephone Consumer Protection Act (“TCPA”) and more specifically, the extension of the National Do-Not-Call Registry registrations.
]]>Currently, consumer registrations have a “shelf life” of five years; however, the FCC proposes to extend this period indefinitely for the purpose of minimizing “the inconvenience to consumers of having to re-register their preferences not to receive telemarketing calls and to further the underlying goal of the National Registry to protect consumer privacy rights.” See FCC-07-203. According to the FCC, approximately thirty million consumer do-not-call registrations will expire during the period between June-August, 2008.
Parties may follow the FCC’s permit-but-disclose ex parte procedures or may file written comments pursuant to 47 CFR § 1.415 and 1.419. All filings pertaining to this matter should refer to CG Docket No. 02-278. If you would like additional information on these issues and what they mean for your particular situation or business, or wish to discuss potential participation in the FCC's rulemaking proceeding, please feel free to contact us.
Snow also added, "That [telephone tax] is the taxpayers' money, and they deserve to have it, not the government" but perhaps he didn't quite mean exactly that. Rather, Mr. Snow could have more accurately proclaimed, "That is the taxpayers' money, and they deserve to have to eat it, not the government." Exactly how the process will work is yet to be determined but the federal government is working even now to develop a process whereby taxpayers may request refunds (with "interest") dating back to March 2003. Any monies paid from February 2003 back to 1955 (give or take a year or two) will not be refundable, oddly however, neither Mr. Snow nor the government is offering any explanation as to why. Refunds will most likely be processed as the result of a line item on the taxpayer's income tax return. Additionally, the refund process will work the same way for non-individual (e.g., corporate) filers.
Snow estimates the government will issue "refunds" of approximately 13 billion dollars (quiz: what is 294 billion minus 13 billion?) but couldn't guess what the average taxpayer refund would be. However, Sen. Rick Santorum (R-Pa.) said his tax bill amounted to $3 to $4 each month. "It's a nice little check for a lot of folks," he said of the expected refunds. Secretary Snow was right, enough is enough!
]]>Technology Law Group has successfully litigated complex telecommunications cases against each of the major long distance carriers and most of the Regional Bell Operating Companies in proceedings in state and federal courts and regulatory agencies across the country, the FCC, and before every major arbitration tribunal. In many of these cases, our clients faced very difficult legal challenges-often involving claims arising under the Filed Rate Doctrine-that most other firms were not even willing to undertake. Technology Law Group not only undertook these cases but, through our aggressive and creative litigation style, we were able to obtain extraordinary results for our clients.
In recognition of its unique expertise in telecommunication issues, Technology Law Group has been called on to provide expert legal advise to a number of the largest law firms in the country, including firms considering substantial class action cases against major telecommunications carriers. Mr. Ende has also provided expert testimony on telecommunications issues.
Our Contract Drafting and Review Practice
The attorneys at Technology Law Group have negotiated hundreds of carrier and agency agreements, including agreements with every major telecommunications carrier. We truly believe that it is critical for our clients to understand their carrier and customer agreements, both in terms of the legal rights and obligations that they create. Most critically, we also work with our clients to make sure that their business practices mesh effectively with the terms and conditions of their telecommunications agreement. Our years of litigation experience also gives us a unique insight into the types of issues that arise when telecommunications agreements are in dispute. We use this experience to build safeguards into our clients' carrier agreements that are rarely found in such agreements. We also understand the dynamics of the negotiation process and know how to drive agreements to resolution quickly and efficiently and on terms and conditions most favorable to our clients.
Our Regulatory Practice
The attorneys of Technology Law Group have decades of experience in all aspects of telecommunications regulation. We have participated in rulemaking and litigated proceedings addressing virtually every important regulatory issue, both before the Federal Communications Commission and before major state regulatory agencies across the country. We understand how the process works and, more importantly, how we can make the process work not only to limit your regulatory costs but also to ensure that you enjoy the benefits and protections available through the regulatory process.
In addition to rulemaking and litigation proceedings, we also represent clients in obtaining the certifications and filing the tariffs required for market entry. We also have long term relationships with third party consultants around the country that can assist state specific proceedings and issues.
Our Mergers and Acquisitions Practice
Technology Law Group has represented numerous telecommunications companies involved in the mergers and acquisition process. Our advice has included all matters from the initial negations and letter of intent, through the drafting of the merger or acquisition documents and closing. In many cases, we not only provide legal advice but, because we understand the telecommunications issues, we are also able to provide our clients with invaluable advice on critical business. We also have long term relationships with third party consultants around the country and entities who provide financing to telecommunications ventures involved in a merger or acquisition.
Our Negotiation Practice
Technology Law Group views the negotiation process as among the most critical aspects of our practice and one in which we are involved on a daily basis in all aspects of our practice. We are also keenly aware that negotiations do not occur in a vacuum, but rather are often the end point in a process which requires a clear strategy from the outset and the careful and timely application of game theory and tactics. Negotiations are successful, in our opinion, in two circumstances; where both parties feel like they have succeeded and where one party needs to negotiate out of fear of an unacceptable result. Through careful strategic planning and tactical actions - and because we generally have greater experience in the substantive issues being negotiated--our clients negotiate from a position of strength and are generally able achieve the desired outcome.
Technology and Intellectual Property Practice
The attorneys at Technology Law Group have more than two decades of experience in the areas of computer and software law and intellectual property issues. Our work on computer and software issues has included the drafting of software license and related agreements and litigation of issues relating to software use and allegations of software pirating. Our work on intellectual property issues has included matters involving copyright, trademark and trade secret protection and licensing, as well as litigation involving these areas.
We have also drafted web hosting agreements, content licensing agreements and have the capability to provide trademark protection under the Anti-cybersquatting Act, and copyright safe harbor protection for ISPs under the Digital Millennium Copyright Act.
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On the heels of this measure, the Commission has also now issued a Notice of Proposed Rulemaking ("NPRM") to examine the need for and feasibility of tougher privacy rules relating to the handling of CPNI through the establishment of enhanced security and authentication standards for access to customer telephone records. The NPRM, released on February 14, 2006, arises from a petition filed by the Electronic Privacy Information Center ("EPIC").
In its petition, EPIC raised significant concerns regarding the adequacy of carrier practices and current rules relating to CPNI, and highlighted several disturbing trends involving the sale by data brokers of both landline and wireless telephone records, as well as records for non-published phone numbers and VOIP communications. The records being sold apparently include the 'call to' and 'call from' number, call duration, and (in the case of cellular communications) even the location of the cell phone. The FCC expressed concern that data brokers are employing a practice known as "prextexting" - i.e., obtaining the information under false pretenses, including posing as the customer - to gain access to such sensitive data. The FCC has become aware that the availability of such information is causing growing concern among customers.
Accordingly, in its NPRM, the FCC seeks comment on five types of security measures proposed in the EPIC petition. Such additional measures, as explained by EPIC, would more effectively protect CPNI than the current safeguards. Specifically, the five areas in which the FCC proposes to explore for the purpose of implementing enhanced security measures include:
Identity authentication and passwords set by customers.
Audit trails that record all instances when a customer's records have been accessed, whether information was disclosed, and to whom.
Encryption by carriers of stored CPNI data.
Limits on data retention that require deletion of call records when they are no longer needed.
Notice provided by companies to customers when the security of their CPNI may have been breached.
In addition to enhancements in these areas, the FCC also proposes to insure uniformity of carrier compliance certification filings by requiring carriers to file annual filing certificates accompanied with a " summary of all consumer complaints received in the past year concerning the unauthorized release of CPNI and a summary of any actions taken against data brokers during the preceding year."
The FCC also seeks comments on any other means that could be implemented to enhance customer privacy, including possibly requiring carriers to confirm a requesting subscriber's identity "calling a subscriber's registered telephone number before releasing CPNI."
Comments on these proposed rules are to be filed 30 days after the publication of the NPRM in the Federal register. Reply comments will be due 60 days of such publication.
If you would like additional information on these issues and what they mean for your particular situation or business, or wish to discuss potential participation in the FCC's rulemaking proceeding, please feel free to contact us.
Washington, DC
5335 Wisconsin Avenue, NW
Suite 440
Washington, DC 20015
202.895.1707
202.478.5074 (Facsimile)
Oklahoma City
First National Center
120 N. Robinson, Suite 1619
Oklahoma City, Oklahoma 73102
405.694.4747
800.796.4732 (Facsimile)
Neil S. Ende
Alex B. Bouton
Susan Colman
Greg L. Taylor
Silsa Cabezas
Our Practice Philosophy
Technology Law Group operates through a small group of dedicated attorneys focused on providing the highest quality legal services in a fair and efficient manner. We have elected to remain small because it allows us to get to know each of our clients and to provide a level of personal service and attention often not available from larger firms. Our size also ensures that each and every one of our clients receives the full attention of the firm's most senior attorneys. Moreover, because we focus exclusively on telecommunications issues and have more than forty years combined experience, we are able to provide creative approaches to complex telecommunications issues that enable our clients to meet their business objective. Our focus on the telecommunication industry has allowed us to maintain a quality and consistency of outcome that is rarely found in today's legal marketplace.
]]>Wikipedia defines network neutrality as a "principle of network design," by advancing that the concept, "in order to promote innovation, network service providers such as telephone and cable Internet companies should not be permitted to dictate how those networks are used (i.e., not permitted to ban certain types of programs, to ban certain types of devices connecting to the network, or to favor carriage of traffic to certain web sites over others)." In lay terms, the concept of net neutrality simply allows Internet use to continue in the same manner to which we have become accustom.
Cable television and telecommunications service providers, traditional opponents to network neutrality contend it opens the door for more intrusive regulation of the Internet, and that imposing such regulation will chill investment in competitive networks and will, as a consequence, preclude network providers the ability to distinguish their services in the marketplace.
Although such concerns appear plausible, it seems more likely that opposition to network neutrality stems from interest in revenue opportunities associated with the industry's embrace of a tiered Internet. Think of the dispute between ISPs and users as analogous to the feud between open-range ranchers and farmers of over a century ago; the ISPs want to "fence in" their networks, while Internet users argue the Internet-frontier should remain open to all. Tiering allows Internet service providers ("ISPs"), to determine the content carried across its network and restricts the use of customer premise equipment.
Under such a tiered (or "fenced") structure, an ISP has the ability to provide its customers with "preferred" content (i.e., as determined by the ISP), and to designate "premium" content, for which it charges an additional access fee. Because many ISPs are now offering VoIP services, its own VoIP services are included in the preferred category while competitive VoIP service traffic is subject to a premium charge. While this provides the ISP with an additional revenue stream, it has the discriminatory effect of discouraging competition among VoIP providers.
At least for the moment, regulatory and government authorities see more value in the continued development of the Internet than in the more-immediate economic benefits of tiered-access to providers. Many speculate, however, that once "adequate" settlement of the Internet frontier is established, the day's proposed restrictions will be lifted and allow for the full-economic development by service providers. Until then, squatters welcome!
Now, if you are not among the carriers who are currently under siege, you may be thinking--I am not in the business of sending facsimiles, why should I care about this issue? However, innocent as you may be, and even if you are only the provider of an inbound toll-free service used in connection with the delivery of facsimile transmissions by third parties, you may soon be in the crosshairs of those seeking to maximize their recovery.
Here's how the "faxtortion" game works. When an individual who is in the game--let's call them "players"--gets a facsimile, one of the first things he/she does is to contact the underlying carrier and/or the SMS database administrator to identify the RESPORG (i.e., the Responsible Organization) for the toll-free number. It is worthy of note that in many, if not most instances, the release of this information by the underlying carrier and/or the SMS database administrator may be a violation of the confidentiality provisions of their own agreements with their reseller-customers. Nonetheless, the player is typically able to get this information, contact the RESPORG and then demand the name of the underlying customer.
If this is where the process ended--with the player going after the third party who is responsible for the facsimile transmission--the issue would not be worthy of further discussion. However, whether by ignorance or intent, in many cases the communication by the player to the RESPORG is less than professional and often contains specific threats of legal action and, sometimes, threats of violence if the facsimile transmissions are not stopped. Of course, the RESPORG is never, or virtually never, the entity that is sending the facsimiles, and may not be in a position to block the transmissions (e.g. where it is switchless reseller) even if it were to elect or have the ability to do so.
The players of the world have found that it can be difficult to find the entities actually sending the facsimiles, either because they pop up and down overnight or hide offshore. Thus, even where players obtain judgments against these entities, it can be hard to collect. Consequently, some of the more unscrupulous players are now bringing actions against the carriers whose services are used to deliver the facsimiles. Although these actions are, in most circumstances, without basis in law, the apparent goal is to force innocent carriers to settle these cases rather than face the substantial legal fees required to defend against such baseless assertions.
Although it may, at first glance, seem practical and economically rational to settle these cases for a relatively small amount, often, that may turn out to be the wrong decision, both as an economic and a practical matter. Indeed, our experience suggests a growing network of players communicate regularly through websites like www.fax.org and target carriers who settle with endless threats of legal action. More importantly, if your role in the process is merely that of common carrier, and you do not have any substantial involvement in the creation of the facsimile transmissions or the selection of the telephone numbers to which the transmissions are sent, you are not legally liable and thus should not be required to pay the equivalent of "protection money" not to be sued.
In short, contrary to the rhetoric of the players, the following is the law on this issue. As an initial matter, for the conduct to be unlawful under the TCPA, an entity must have: (i) used a telephone facsimile machine, computer, or other device to, (ii) send an unsolicited advertisement, (iii) to a telephone facsimile machine. In virtually all cases, a common carrier does not actually own or operate a "telephone facsimile machine, computer, or other device," in the context of this discussion, nor have such entities ever "used" that device to "send an unsolicited advertisement." As such, players are generally unable to present any of the facts necessary to state a claim against a common carrier defendant and often the complaint is dismissed upon the filing of an appropriate motion.
Moreover, as noted above, FCC has specifically concluded common carriers are exempt from liability unless they have "a high degree of involvement" in sending unsolicited faxes. The required "high degree of involvement" exists only where the carrier has a direct role in creating the content of a facsimile message or where the carrier maintains lists of facsimile numbers used to direct its clients' advertisements. "If a common carrier is merely providing the network over which a subscriber (a fax broadcaster or other individual, business, or entity) sends an unsolicited facsimile message, that common carrier will not be liable for the facsimile."
Further, in many instances, the common carrier under assault is only providing the inbound toll- free service referenced on the facsimile as the number to call for more information about the product or service at issue or to get off the call list. We are aware of no sound legal theory under which such carriers--who are only involved on the inbound side and who have no relationship to the sending of the facsimile--can be liable under the TCPA.
The above are just a few of the numerous defenses available to carriers and resellers. So, do not be a victim. Paying "protection money" is a losing proposition that will only encourage players--and the endless list of surrogates they inspire--to feed at your money trough time and again.
The FEC apparently got the message, contemporaneous with the FEC's announcement, Vice Chairman Michael E. Toner remarked the new rules "totally exempt individuals who engage in political activity on the Internet from the restrictions of the campaign finance laws. The exemption for individual Internet activity in the final rules is categorical and unqualified." Toner also added the regulation "protects Internet activities by individuals in all forms, including emailing, linking, blogging or hosting a Web site."
While Toner's statement is generally true, bloggers may not act carte blanche; the exemption applies only to the extent that they avoid paid political advertisements. The rule also precludes use of company or union servers by employees or members on company time or under orders from the union; otherwise, company and union server use for political purposes remain unrestricted.
The FEC decision drew praise from a number of private watch-dog groups, including Washington, D.C.-based Campaign Legal Center and the Center for Responsive Politics, saying that "the new FEC regulation strikes the correct balance in preserving the Internet as an unregulated forum for robust political activity by individuals, while ensuring that the Internet does not become a loophole for unregulated soft money."
At the risk of over-simplification, proponents with the view that VoIP is purely an Internet service assert there is no meaningful distinction between data and voice in terms of Internet traffic, and therefore should not be subject to different treatment. The Internet passes email, website information, and voice packets from one point to another without regard to the type of information traversing the network.
On the other hand, there are a substantial number who contend VoIP should be treated in the same way as a wireline call since it is ultimately a voice communication that (in most cases) originates or terminates from\to a POTS line. If this "quacks like a duck, must be a duck" view prevails, it's likely to be substantially attributable to the negative impact VoIP and wireless services have had on Universal Service Fund contributions in recent years.
As you are likely aware, in November 2004, the FCC preempted state regulation of VoIP services stating the Commission has the "responsibility and obligation to decide whether certain regulations apply to IP-enabled services," and not the states.
The Commission's move set the table for FCC Chairman Kevin Martin's comments at a Comptel question-and-answer session last December, saying "We need to move to collection for the Universal Service Fund that is technology-neutral." Chairman Martin further added his support to a "numbers-based approach," meaning that taxes and assessments (e.g., USF) would be applied to all phone numbers without regard to the type of technology used for calling.
In lockstep with the FCC, the Government Accountability Office (GAO) released in January 2006 its study of the Internet Tax Freedom Act, which prevents state and local governments from taxing services that enable users to access content, information, electronic mail or other services offered over the Internet. The report revealed the GAO's findings that the tax ban does not apply to "acquired services," that is, the network elements used to deliver the service to the end-user.
The GAO's report drew fire from Democrat and Republican senators alike. Sen. George Allen (VA) countered the report findings saying, "The plain language of the statute, as well as the relevant legislative history, reflect a clear legislative intent to ban Internet access taxes at both the retail and wholesale level."
Sen. Ron Wyden (OR), and Sen. Allen have joined seven other Senate members in introducing a bill that would permanently ban Internet access taxes. As it stands today, the tax ban expires November 1, 2007.
How the feds treat the Internet tax issue will likely be a signal as to how it will treat VoIP services. If Internet services are ultimately taxed, be prepared for a regulatory scheme substantially similar, if not the same as, traditional wire-line service.
If you would like additional information on this issue or on VoIP and telecommunications issues generally, please feel free to give us a call.
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