United States: Telecom Deadlines & Headlines - April 15, 2014

Arent Fox's Telecom Deadlines & Headlines brings you the most recent legal developments affecting the telecommunications industry.

This Telecom Deadlines & Headlines reminds you of May 1 deadlines for 254(g) Certificates and 499-Qs, highlights upcoming FCC events, and recaps recent agency and court action on Health IT, Truth in Caller ID Act, and Telephone Consumer Protection Act issues.

KEY REGULATORY DATES

Section 254(g) Certifications Due May 1, 2014

• Every non-dominant provider of detariffed interstate interexchange service must certify that it is in compliance with Section 254(g) of the Communications Act, which requires that its rates to subscribers in rural and other high cost areas are no higher than rates charged to subscribers in urban areas by May 1, 2014. This filing is made pursuant to Section 64.1900 of the Commission's rules.

Form 499Qs Also Due May 1, 2014

• Form 499-Q is due May 1, 2014 for all filers that are not considered de minimis for Universal Service filing purposes. This filing encompasses historical revenues from the first quarter of 2014 and projected revenues for the third quarter of 2014. A copy of the current FCC Form 499-Q can be found here.
• Voice over Internet Protocol (VoIP) providers and Commercial Mobile Radio Service (CMRS) providers who rely on traffic studies to report interstate revenues on FCC Form 499-Q must submit these studies by May 1, 2014 to the Universal Service Administrative Company (USAC) and the Chief, Industry Analysis and Technology Division of the FCC.

16.6% Is Proposed 2Q2014 USF Contribution Factor

• The proposed Universal Service contribution factor for the second quarter of 2014 is 16.6%. A copy of the Public Notice announcing the rate can be found here. (DA 14-377)

KEY INDUSTRY EVENTS

FCC Workshop on Public Safety Imperatives for All-IP Networks, April 17, 2014

• For more information on this FCC workshop, which will focus on current public safety, emergency response and national security dependencies on legacy switched telecommunications infrastructure and challenges, click here.

FCC Open Commission Meeting, April 23, 2014

• The FCC's next Open Commission Meeting is scheduled for April 23, 2014 at 10:30 am; for more information, including the tentative agenda, click here.

MMA Forum, May 6–7, 2014

• For more information on the Mobile Marketing Association's Forum event in New York City, which Arent Fox Partner Ross Buntrock will be attending, click here.

NEWS ROUNDUP

Federal Agencies Collaborate on Regulatory Framework for Health IT

• As required by The Food and Drug Administration Safety and Innovation Act of 2012, the Food and Drug Administration, in consultation with the Office of the National Coordinator for Health IT and the Federal Communications Commission, published a report on a regulatory framework for Health Information Technology that it believes will promote innovation, protect patient safety, and avoid regulatory duplication. The draft report proposes three health IT categories, which would correlate to the degree of anticipated regulatory oversight.
  
  
  • The first category, products with administrative health IT functions, pose little or no risk to patient safety and as such would receive no additional oversight. They include software for billing and claims processing, scheduling, and practice and inventory management.
  • The second category, products with health management functions, includes software for health information and data management, medication management, provider order entry, knowledge management, electronic access to clinical results and most clinical decision support software. The FDA does not intend to focus its oversight on this category.
  • The third category is for products with medical device health IT functions. This category could potentially pose greater risks to patients if they do not preform as intended, and include computer-aided detection software, software for bedside monitor alarms, and radiation treatment software. The FDA would continue regulating these products.

The FDA invites public comment on the draft document (Docket FDA-2014-N-0339) and will soon announce a public meeting to discuss the report. The report may be downloaded here.

Federal Court Rules That the FCC, Not Private Litigants, Must Enforce the Truth in Caller ID Act

• On April 3, 2014, the United States District Court for the Southern District of Texas dismissed a claim against Flowroute for an alleged violation of the Truth in Caller ID Act of 2009 ("TCIA"). The plaintiff claimed he had received a call to his mobile phone from Avatar Technologies Phl, Inc. ("Avatar") that falsely indicated that the call was from a local telephone number. The plaintiff alleged that Avatar used Flowroute's VoIP and Calling Name Management services to alter its caller information. As such, plaintiff claimed that Flowroute violated the TCIA by causing its caller identification service to knowingly transmit misleading or inaccurate caller identification information. The court dismissed the claim, holding that there is no express or implied private right of action for violations of the TCIA. Instead, the law grants enforcement authority only to the Federal Communications Commission and the states. The court also dismissed the plaintiff's unjust enrichment claim against Flowroute because the plaintiff had failed to allege facts showing that Flowroute had obtained a benefit from the plaintiff himself, as required under Texas law. Clark v. Avatar Technologies Phl, Inc., CIV.A. H-13-2777, 2014 WL 1342033 (S.D. Tex. Apr. 3, 2014).

FCC Seeks Comment on TCPA-Related Petition Seeking Clarity on ATDS and Who Makes a Call Under the Act

• On April 7, 2014, the Consumer and Governmental Affairs Bureau of the Federal Communications Commission (FCC) released a public notice seeking comment on TextMe, Inc.'s petition for expedited declaratory ruling and clarification filed on March 18, 2014. Comments are due May 7, 2014, and reply comments are due May 22, 2014. TextMe is requesting that the FCC clarify three aspects of the Telephone Consumer Protection Act (TCPA). First, TextMe requests that the FCC clarify that the term "capacity" as used in the statutory definition of an automatic telephone dialing system (ATDS) encompasses only equipment that, at the time of use, could in fact autodial random or sequential numbers without human intervention and without first being technologically altered. Second, TextMe asks the FCC to clarify that users of TextMe's application, and not TextMe itself, make or send calls or text messages for purposes of the TCPA. Finally, TextMe requests that the FCC clarify that third-party consent can be obtained through an intermediary to satisfy the TCPA's "prior express consent" requirement for autodialed messages to wireless telephone numbers. On this last point, the FCC recently ruled that another text-messaging-application provider, GroupMe, Inc., does not need to obtain a message recipient's consent directly, but can instead rely on intermediaries to obtain the necessary consent in response to GroupMe's petition for expedited declaratory ruling. A summary of the FCC's GroupMe declaratory ruling can be found here.

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