United States: Communications Law Bulletin, August 2006

August of 2006 saw Congress and state legislatures in recess, much of Washington on vacation and the election season heating up. Although these are not the best conditions for momentous regulatory and legislative developments, there still is much to report in this issue of our Bulletin. We offer here the latest from the Federal Communications Commission ("FCC" or "Commission"), Congress, the courts, the statehouses and even a ministry of the People’s Republic of China; and we provide our usual list of deadlines for your calendar.

FCC Commissioner McDowell has told the press that he may be barred from voting on the pending merger between AT&T and BellSouth. McDowell’s recusal, if it takes place, will be the result of his former association with an interested party — i.e., Comptel, the association of competitive telephone companies.

The recusal decision is in the hands of the Commission’s general counsel. In the meantime, Commissioner McDowell says he is not taking part in the proceeding.

On August 15, the U.S. Court of Appeals for the D.C. Circuit affirmed the FCC’s decision to forbear from the application of the unbundling requirements of Section 271 of the Communications Act ("Act") to the Bell Operating Companies’ ("BOCs’") fiber-based broadband facilities. Rejecting a challenge by EarthLink, Inc. and other Internet service providers, the court found that the FCC’s grant of forbearance was a "permissible" application of the Act, was neither arbitrary nor capricious, and was supported by the record.

The challenged FCC order arose from a BOC request that the FCC forbear from applying the Section 271 unbundling rules to their fiber-based broadband networks, thereby freeing the BOCs of any obligation to make those network facilities available to Digital Subscriber Line ("DSL") competitors. The BOC forbearance petitions were filed after the FCC had determined in the Triennial Review Order and follow-up orders that Section 251 of the Act did not require the unbundling of their fiber optic broadband networks. (The relevant Triennial Review orders are discussed in the August 2003 Special Edition and the July/August 2004 and October 2004 editions of the Communications Law Bulletin.) Section 271 authorizes the FCC to permit the BOCs to provide long distance services within their own local service areas, premised upon, among other things, compliance with a "competitive checklist" imposing unbundling requirements independently of the Section 251 unbundling requirements. In response to the BOCs’ forbearance petitions, the FCC found that competition and the protection of consumers did not require the unbundling of the BOCs’ broadband networks as a condition of their entry into in-region long distance service under Section 271.

Judge Janice Brown, writing for a three-judge panel, rejected EarthLink’s argument that the relevant statutory provision authorizes the FCC to grant forbearance only after analyzing market conditions in specific locales. The court held that "the statute imposes no particular mode of market analysis," but rather "allow[s] the forbearance analysis to vary depending on the circumstances." The court also rejected EarthLink’s claim that forbearance was inconsistent with FCC precedent, noting that the FCC acknowledged in a prior forbearance order that its traditional market power analysis does not bind the FCC’s forbearance analysis. Pointing out that forbearance will not impede competition because cable companies provide most broadband access, the court also found that the FCC properly balanced the benefits of competitive access to BOC broadband facilities against the "longer-term positive impact" on the BOCs’ incentives for potential new fiber investment, and thus "on rates, consumers and the public interest," if unbundling were not required. Accordingly, "the FCC reasonably weighed present conditions and future developments in determining what is necessary for just and reasonable rates, ‘necessary for the protection of consumers,’ and ‘consistent with the public interest’" under the forbearance statute.

On July 31 the 11^th Circuit Court of Appeals reversed a 2005 decision by the FCC that had amended portions of its Truth-in-Billing rules and preempted states from requiring or prohibiting the use of line items in customer billing for wireless services. Line items are those charges that carriers include on their invoices to recover taxes, surcharges, and other fees associated with telecommunications services. They have become controversial in recent years because carriers sometimes will use them to recover other costs of providing services, such as "regulatory compliance," rather than increasing rates generally. A number of state courts and regulatory commissions have found the practice to be misleading or confusing for customers and as a result have imposed regulations that limit the use of line items to recovery of charges that are mandated by a government entity and/or are remitted to a government entity.

In its decision to preempt state regulations requiring or prohibiting the use of line items by wireless carriers, the FCC reasoned that line items were wireless rates, which Section 332(c)(3)(A) of the Communications Act expressly preempts states from regulating. The 11^th Circuit, however, disagreed with the FCC’s analysis, instead holding that line items are "other terms and conditions," which Section 332(c)(3)(A) expressly permits states to regulate. Relying on dictionary definitions of the word "rate," the court found that state regulations of line items govern the billing practices of wireless carriers and the presentation of the charge on customers’ bills, not the actual rate that is paid. In addition, the court found that the FCC had not adequately explained why in this case it held that line items were rates when, in other decisions, it had reached the opposite conclusion.

The decision is a victory for the National Association of State Utility Consumer Advocates ("NASUCA"), who had initiated the proceeding leading to the FCC’s order when it sought a declaratory ruling on the reasonableness of carrier billing practices and who, along with the National Association of Regulatory Utility Commissioners ("NARUC") had appealed the FCC’s decision. Wireless carriers and their industry organization, the Cellular Telecommunications & Internet Association ("CTIA"), have announced their intention to appeal the ruling.

On August 24 the California Public Utilities Commission ("CPUC") voted unanimously to lift most pricing and other regulations for the four largest providers of wireline local services, AT&T, Verizon, SureWest, and Frontier. The sweeping order eliminates pricing regulations for all retail business and residential services except measured and flat rate basic residential exchange and Lifeline services, which will be subject to price caps until January 1, 2009 and must remain available on a stand-alone basis. After January 1, 2009, only those services that receive high-cost-fund subsidies will be subject to rate regulation. The pricing rules for special access services are not affected by this decision.

The CPUC also eliminated a significant number of other regulations on the grounds that the four incumbents compete with wireless and Internet telephony providers and that the FCC’s unbundling policies and the availability of stand-alone DSL have eliminated any market power that they may have had. Some of these changes include the following: all tariff filings are effective on one day’s notice except those implementing price increases or service restrictions, which shall be effective on 30 days’ notice (a second phase of this proceeding will considering detariffing all services); the carriers may offer bundled services without imputation or price floor requirements or restrictions on which services may be included in a bundle; geographic rate deaveraging is permitted except for those areas receiving high-cost-fund subsidies; all company-specific or sector-specific marketing rules, disclosure requirements, and mandated administrative practices are eliminated; all state-specific reporting requirements are eliminated (in lieu of the state reports the CPUC will rely on the ARMIS and other reports filed with the FCC, the FCC’s accounting rules, and the SEC’s affiliate transaction rules); customer contracts are effective upon signature and are no longer subject to CPUC staff review, provided that they are filed with the CPUC within 15 business days of execution; all earnings sharing is eliminated, as well as annual price cap filings, productivity factors, and any other vestige of rate-of-return regulation; and Yellow Pages revenues are no longer included in regulatory accounts.

In comments filed on the draft decision circulated in July, consumer groups and competitive carriers criticized the proposed changes on the grounds that they lacked sufficient record basis and did not properly analyze the markets for the various telecommunications services. The incumbent carriers, on the other hand, urged the CPUC to expand its regulatory forbearance beyond what was included in the original draft, to allow them even greater flexibility. To a large extent, the final decision dismisses the concerns of the consumer groups and grants much of the additional flexibility sought by the incumbents. To assuage the concerns of those who questioned the breadth of the changes ordered, the CPUC assures all parties that it will remain vigilant and investigate claims of anti-competitive practices for voice services. Commissioners Geoffrey Brown and Dian Grueneich voted in favor of the final order, resulting in a rare unanimous decision, but reserved the right to file concurrences.

On August 16, the FCC’s Enforcement Bureau issued a notice of apparent liability proposing a forfeiture of $11,000 against Intelsat for submitting an apparently incorrect or misleading certification in connection with Intelsat’s notification to relocate one of its satellites. The Bureau concluded that Intelsat erroneously had certified that its proposed satellite relocation would comply with all applicable coordination agreements, when in fact it was precluded by an applicable collocation/coordination agreement from operating its satellite at the new orbital location. Intelsat argued that it exercised due diligence because the employee who actually made the certification reasonably relied upon assurances by company personnel with specialized knowledge of the applicable agreements. The Bureau, however, rejected that argument and noted that due diligence requires more than mere reliance upon the recollection of company personnel of matters contained in written agreements. Consequently, the Bureau ordered Intelsat, within 30 days, to pay the proposed forfeiture or file a statement seeking reduction or cancellation of the proposed forfeiture.

On August 2, the U.S. Court of Appeals for the D.C. Circuit directed the FCC and Department of Justice to respond within 15 days to a petition for an en banc hearing filed by parties challenging an FCC order applying requirements under the Communications Assistance for Law Enforcement Act ("CALEA") to facilities-based broadband Internet access providers and interconnected voice over Internet protocol ("VOIP") providers. A three-judge panel of the court previously upheld the FCC order and concluded that the FCC’s decision was reasonable because the definition of "telecommunications carrier" under CALEA is broader than under the Communications Act of 1934, as amended. In their petition for an en banc rehearing, the petitioners argued that the FCC and the three-judge panel overrode the clear statutory language of CALEA, which expressly excludes information services such as broadband Internet services.

Despite Senate Commerce Committee Chairman Ted Stevens’ (R-AK) attempt to round up the necessary 60 votes to avoid a filibuster, the Senate adjourned for its August recess without passing comprehensive communication reform legislation. Analysts remain skeptical that the bill will be passed this year, given the limited time left before the November elections, opposition from Democrats seeking Net neutrality provisions, Republicans’ desire to avoid contentious issues heading into the November elections, and competition for floor time from other legislation viewed as having higher priorities. Sen. Stevens could opt to pare down the bill to address only universal service reform and video franchise relief, a measure that is viewed as offering better prospects of passage. The leading sponsors of the House bill to reform universal service, however, expressed skepticism that the legislation would be passed this year, either as a stand-alone bill or as part of the broader communications reform legislation.

The Federal-State Joint Board on Universal Service ("Joint Board") is seeking comment regarding the use of competitive bidding to allocate high-cost universal service support to eligible telecommunications carriers ("ETCs"). The potential for using auctions to distribute high-cost monies arose in the late 1990s, but the issue was deferred at that time due to the development of an inadequate record. FCC Chairman Kevin Martin resurrected the concept earlier this year in the face of ongoing concern regarding the stability and sufficiency of the universal service fund.

The primary focus of the Joint Board concerns the use of "reverse auctions" in which low bidders, rather than high bidders, would obtain high-cost funding. Reaction to the reverse auction concept has been mixed, with some entities concerned that it would discourage maintenance of high-cost infrastructure, while others believe it would provide incentives for companies to operate efficiently.

The Joint Board generally seeks comment on: (1) whether auctions are appropriate to allocate universal service support; (2) how auctions fit within the framework of the Communications Act, including the requirement that universal service support be sufficient to achieve statutory goals; (3) the roles of the FCC, state commissions and administrator of the universal service fund relative to the auction process, oversight of winning bidders and distribution of funds; (4) the appropriate geographic areas for support; (5) the "optimal" structure for a reverse auction; (6) the appropriate baseline for service quality for auction bids; (7) whether there should be multiple winners for the same funding area; (8) how winning bids should be selected; and (9) how incumbent rural telecommunications companies should be treated if high-cost monies are allocated through an auction.

The Joint Board also seeks comment on a "discussion proposal" which proposes to allocate high-cost monies to two auction winners in each area – both would be required to provide basic voice service, but one would have to provide broadband Internet access and the other wireless services. The proposal also suggests a ten-year service term. Service would be based on county boundaries, although rural incumbent companies could bid for current service areas even if they do not cover entire counties. Further, states would conduct the auctions and oversee subsequent service, subject to FCC approval. The proposal also suggests a transitional step in which incumbent rural carriers could opt to be treated as the winning broadband network bidder in their existing service areas for the first ten years.

Auctions represent a dramatic change in how high-cost monies are allocated. Companies that currently receive high-cost support could find themselves without an important revenue source. Auctions also could present new entrants with the opportunity to receive such funding. Comments and reply comments are due October 10, 2006 and November 8, 2006, respectively.

CBS Appeals Superbowl Fine

At the end of July, CBS, acting under established procedural precedent, paid the $550,000 indecency forfeiture imposed by the Commission for the Janet Jackson Super Bowl incident so that it could pursue an appeal of the adverse ruling. CBS announced that it paid the fine "under protest" and only so it could have recourse to the court system for an appeal. In a prepared announcement, CBS stated, "CBS is filing today an appeal with the United States Court of Appeals for the Third Circuit seeking to overturn the FCC’s finding that the 2004 Super Bowl half-time broadcast was legally indecent. A prerequisite for filing this appeal is to pay the $550,000 fine, which we are also doing today only for this procedural reason." In their petition, CBS lawyers argued that "[p]ayment does not mean that CBS in any way is admitting to a violation of the Commission’s indecency rules."

The network stressed its commitment to fighting the Commission’s fine, stating, "We disagree strongly with the Commission’s conclusions and will continue to pursue all remedies necessary to affirm our legal rights."

The day before CBS filed its appeal, the television industry announced an educational campaign about the content control tools that parents possess, including the V-Chip.

An FCC spokesperson stated, "CBS’s continued insistence that the halftime show was not indecent demonstrates that it is out of touch with the American people. Millions of parents, as well as Congress, understand what CBS does not: Janet Jackson’s ‘wardrobe malfunction’ was indeed indecent." The FCC added that it will "vigorously defend the forfeiture order issued against CBS."

The FCC sought an expedited briefing schedule, which request was denied by the Third Circuit. The Commission had asked that CBS’s opening brief be due on September 11, 2006. The Commission then proposed that it would have 30 days to file an opposition brief, and CBS would have another two weeks to file a reply. Instead of adopting the FCC’s proposed schedule, the Third Circuit has set September 27 for the first brief, followed by a total of 44 days for the Government’s opposition brief and CBS’s reply brief. Meanwhile, the U.S. Court of Appeals for the Second Circuit heard arguments on August 29, 2006, on the FCC’s request for a remand of the appeals of portions of its March 15 indecency rulings against CBS, Fox and NBC.

The FCC’s Media Bureau has granted Hearst-Argyle a waiver of the television duopoly rule in Kansas City, Missouri. The action permits Hearst-Argyle to acquire UPN station KCWE while it also owns ABC’s KMBC-TV in the same market. The Media Bureau based its decision on the status of KCWE as an unbuilt station, and stated in the decision that the application was unopposed.

Kansas City now has three duopolies. Scripps owns NBC affiliate KSHB and independent station KMCI. Last September, the Commission granted a request by Meredith Broadcasting, which owns CBS affiliate KCTV, for a duopoly waiver. Because WB affiliate KSMO was underperforming in ratings and revenue and the Commission believed that new ownership could revive the station, the FCC granted Meredith’s request for a "failing station" waiver. Hearst-Argyle has been operating the UPN station KCWE while its request for FCC approval to purchase KCWE is pending.

On August 18, 2006, the United States Court of Appeals for the District of Columbia Circuit denied a challenge to the FCC’s integration ban on set-top boxes. Charter Communications and Advance/Newhouse Communications had petitioned the D.C. Circuit for review of the FCC’s decision to prohibit multichannel video programming distributors from deploying new navigation devices with integrated security functions after July 1, 2007. The goal of the integration ban is to encourage a retail market in set-top boxes. The cable industry is concerned that separating navigation from security functions will increase its costs.

The court stated that there was "nothing unreasonable" about the Commission’s decision to leave the integration ban in place. Because of the "evolving nature" of downloadable security technology, the D.C. Circuit stated that it was "hardly unreasonable for the FCC to delay, but not to delete, the integration ban." The court deferred to the Commission’s determination that the ban would help direct "technical and business energies towards creation of an environment in which competitive markets will develop," stating that "[i]t is an explanation that is neither arbitrary nor capricious."

The cable companies had argued that the integration ban violates the "plain language" of the Telecommunications Act of 1996. The court, however, held that it lacked jurisdiction to hear this argument because the 60-day period for seeking review of the FCC’s original statutory interpretation of the 1996 Act had lapsed. The FCC issued the order under review in 2005. The court also agreed with the Commission’s arguments that the Commission must first have an opportunity to consider an argument – in this case, a new statutory interpretation – before a court can entertain the issue.

The court also rejected the cable companies’ arguments that the Commission failed to consider market changes that rendered the integration ban unnecessary. "The FCC," the court stated, "did not ignore the developments cited by the petitioners, but its assessment both of the current state of the market and of its trajectory differed from that of the cable industry." The court observed that less than three percent of the compatible televisions sold to consumers "were actually being used with CableCARDs," a technology which allows portability and third-party navigation devices by placing the proprietary features of a set-top box, such as encryption, security, and other private network features, onto the CableCARD, a removable device. Accordingly, the court said, the Commission had reason to be skeptical about the cable industry’s claims that it fully supports CableCARD deployment.

The court took issue with the cable companies’ argument that the Commission refused to consider whether the integration ban placed cable at a competitive disadvantage to Direct Broadcast Service ("DBS"). The court stated that the Commission had determined that DBS equipment was "geographically portable" and, unlike cable set-top devices, was available broadly on a retail basis from unaffiliated entities.

The cable industry’s hopes of continuing the sale of integrated set-top devices now depend on separate waiver requests pending at the Commission. The National Cable & Telecommunications Association ("NCTA") has requested that implementation of the integration ban be delayed until the end of 2009 or until downloadable security is available.

The FCC intensified its probe of video news releases ("VNRs") by sending letters of inquiry to 77 television stations identified by the Center for Media and Democracy as broadcasting promotional content without disclosing the source. In April 2005, the Media Bureau issued a Public Notice reminding broadcast licensees, cable operators and others of the Commission’s sponsorship identification rules. While an FCC spokesman declined comment about the recent letters of inquiry, the Commission in the April 2005 Public Notice stated that "the Commission will investigate any situation in which it appears that these requirements of the law may have been violated and will order administrative sanctions against its regulatees, including the imposition of monetary forfeitures and the initiation of license revocation proceedings, where such action is appropriate. In addition to these sanctions that the Commission may impose, we note that the criminal penalty for violation of the disclosure requirements of Section 507 of the Act is a fine of up to $10,000, imprisonment of not more than a year, or both." Commissioner Adelstein recently noted that violators’ monetary forfeitures can amount to $32,500 per violation.

Video Competition

North Carolina has a new law that will shift authority over video franchising from municipalities to the Secretary of State on January 1, 2007. Governor Mike Easley signed the bill into law this month after the North Carolina legislature approved the measure in mid-July. The law gives the Secretary of State 120 days to review applications for statewide franchises. In exchange for a statewide franchise, the law will require new video service providers to supply at least two public access channels, as well as the financial support for operating them. The law prohibits so-called "redlining" (the practice of selectively rolling out service based on economic and demographic characteristics of localities and neighborhoods), but does not include a build-out requirement. The law empowers the Consumer Protection Division of the State Attorney General’s office to enforce FCC customer service standards and address redlining complaints.

On August 4, 2006, New Jersey Governor Jon Corzine signed into law a bill that authorizes state-issued cable franchises. The law will permit new entrants to seek approval to offer cable television and multichannel services on a statewide basis. Press reports state that prior to the law, new entrants would have needed to negotiate individual agreements with approximately 566 municipalities. The Governor also signed an Executive Order that directs the Public Advocate to monitor and enforce the new law, and the Board of Public Utilities to issue stringent regulations. The Governor’s office released the following statement: "The Order…directs the Board of Public Utilities, which regulates the cable television market in New Jersey, to issue regulations that will enhance the state’s ability to monitor the build-out of these new franchises. The regulations will impose thorough reporting requirements and provide clear definitions to some of the language in the bill. Taken together, the bill and the Executive Order will help ensure that all of New Jersey’s communities receive the benefits of meaningful cable television competition as quickly as possible."

On July 27, 2006, Representatives Dan Lipinski and Tom Osborne introduced a bill "to empower parents to protect children from increasing depictions of indecent material on television," also reported in the press as the "Family Choice Act of 2006." The bill would force cable and satellite providers to choose one of three programming alternatives: (1) compliance with federal broadcast-indecency rules on basic and expanded-basic tiers; (2) permitting consumers to eliminate indecent channels from a programming tier (a so-called "opt-out" alternative); or (3) creating a family programming tier as defined by the legislation. The legislation was referred to the House Commerce Committee’s Subcommittee on Telecommunications and the Internet on August 1.

In a minor victory for Verizon, Judge Marvin Garbis, of the United States District Court in Baltimore, ordered Verizon and Montgomery County, Maryland, to arbitrate Verizon’s claim that county administrators placed illegal burdens on Verizon as it sought to provide video programming services in the county. Judge Garbis announced that he will appoint a magistrate who will review the agreements and work with the parties to resolve issues related to Verizon’s goal of selling its FiOS service without paying a 5% county fee on its broadband and phone revenue. Judge Garbis said that he separately will consider Verizon’s claim that Montgomery County violated the FCC’s rules in attempting to impose its fees and denied Verizon’s request for an injunction against the county’s cable law.

Verizon’s attorney, Henry Weissmann, identified the "key issue" as "whether the city, when it gives a cable franchise, by that act, also gets to become our telecom regulator." Joe Van Eaton, who represents the county, told Judge Garbis that his client does not want to tax broadband and phone use, but wants 5% of "gross system revenue," which he says does not include phone or broadband services. In response to the county’s arguments that Verizon never formally filed a cable franchise application, Judge Garbis ordered Verizon to file.

China’s Ministry of Information Industry ("MII") has released new rules imposing new requirements on foreign investment in Internet and telecommunications businesses. The MII’s "Notice Regarding Strengthening Administration of Foreign Investment in Operation of Value-Added Telecommunication Businesses" sets forth detailed rules for foreign investment in telecommunications businesses and the relationship between foreign investors and Chinese license holders. The MII’s new rules appear to signal a shift in policy toward greater scrutiny of existing and future foreign investments.

Prior to the adoption of the MII’s new rules, foreign investors often relied on contractual arrangements with Chinese companies that hold value-added telecommunications licenses. Chinese telecommunications companies are prohibited from leasing, transferring, or selling their telecommunications business licenses to a foreign investor, or covertly providing resources, premises or facilities to a foreign investor for purposes of illegally operating a telecommunications business in China. Internet domain names and registered trademarks must be owned by the local license holder or a shareholder of the company. Applications for new licenses that do not comply with the new rules are subject to denial. The MII also requires existing license holders to conduct a "self-examination" regarding their compliance with the new rules and report to the MII’s provincial or municipal counterparts by November 1. Failure to comply with the new rules could result in loss of their licenses.

In a memorandum opinion and order adopted at its August 3 open meeting and released on August 7, the FCC granted petitions for reconsideration modifying its radio frequency interference rules related to broadband over power line ("BPL") systems while denying other requests. The FCC granted a request by the National Telecommunications & Information Administration to add a new BPL "exclusion" zone precluding BPL operations in frequencies used by radio astronomy observatories in the vicinity of an observatory in New Mexico and changed the consultation requirements to protect radio astronomy observatories. The FCC also granted the requests of ARINC, the aeronautical radio communications company, to clarify that BPL operators are required to ensure that their operations do not cause harmful interference with other fixed licensed operators, are responsible for resolving harmful interferences that may occur, and must work with new and relocated aeronautical facility operators to protect them from BPL interference.

The FCC denied ARINC’s request, however, to preclude BPL operations on low-voltage lines from using frequencies reserved for high-frequency aeronautical communications. The FCC also denied a request by the amateur radio community to rescind the BPL interference rules and prohibit BPL operations pending further study of BPL interference characteristics and to prohibit BPL operations in the frequencies used for amateur radio communications. In denying those challenges, the FCC also rejected the amateur radio community’s claim that the FCC prejudged the proceeding and failed to consider the record in support of stricter interference standards. The FCC also denied a request of the television broadcast industry to exclude BPL operations from frequencies above 50 MHz and a request by the gas and petroleum industries that they and other critical infrastructure industry entities be considered public safety entities, which would have entitled them to direct prior notification of deployments by BPL providers.

Finally, the FCC denied several parties’ requests to impose a variety of restrictions on BPL operators, finding that they would impede BPL operations unnecessarily, as well as requests by BPL providers to extend the certification deadline for BPL equipment and to eliminate a requirement to submit data about BPL deployment 30 days in advance to the public database that the BPL industry was required to establish. Brett Kilbourne, regulatory director of the United Power Line Council, characterized the order as having essentially affirmed previous BPL rules that largely favor the industry.

Although the vote in favor of the BPL interference modifications was unanimous, Commissioner Michael J. Copps raised concerns that the U.S. is "behind the game" in broadband penetration, ranking only 21st on the International Telecommunications Union’s Digital Opportunity Index. Commissioner Deborah T. Tate responded that in 2005, 24% of rural Americans had broadband at home, more than double the 9% reported in 2003. Commissioner Jonathan S. Adelstein noted that BPL service can bring competition to some areas without broadband service, since almost all homes are connected to the electric grid. Commissioner Robert M. McDowell mentioned that BPL will improve the ability of power companies to manage electric power grids.

The FCC also deferred action on a related item it had planned to address at the August 3 meeting concerning whether BPL Internet access services should be classified as information services, in the same manner as wireline broadband and cable modem Internet access services, or telecommunications services. Chairman Kevin J. Martin said that the deletion of the item from the agenda did not reflect any disagreement among the Commissioners over the substance of the order but simply was an effort to "streamline" the meeting and that he expected the order to be adopted on circulation "very shortly." No BPL classification order had been released as of the deadline for distribution of the August Bulletin.

Upcoming Deadlines for Your Calendar

Note: Although we try to ensure that the dates listed in the PDF document are accurate as of the day this edition goes to press, please be aware that these deadlines are subject to frequent change. If there is a proceeding in which you are particularly interested, we suggest that you confirm the applicable deadline. In addition, although we try to list deadlines and proceedings of general interest, the list below does not contain all proceedings in which you may be interested.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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