This Telecom Deadlines & Headlines focuses on the upcoming deadlines for CPUC tariffs and FCC 499As, and recaps recent TCPA-related court rulings.

Key Regulatory Dates

CPUC Annual Tariff Filings Due February 7, 2014

  • The California Public Utilities Commission (CPUC) has set February 7, 2014 as the deadline for its Annual Tariff Filing on CD-ROM. Carriers that maintain tariffs on file with the CPUC are required to file a complete copy of their current tariff on file with the CPUC as of January 1, 2014. This tariff should include all revisions made in 2013. The CPUC has certain formatting requirements for submission on CD-ROM, which can be found here.

Comments Sought on Reducing Barriers to Deployment of Wireless Infrastructure

  • On December 5, 2013, the Commission's September 2013 Notice of Proposed Rulemaking (NPRM) aimed at reducing barriers to the deployment of wireless infrastructure was published in the Federal Register. The NPRM seeks comment on expediting the Commission's environmental review in connection with proposed deployments of certain technologies, such as small cells and Distributed Antenna Systems, which may be less likely to affect the environment. The NPRM also proposes a narrow exemption to notification requirements for certain temporary towers, and seeks comments on rules that would clarify provisions concerning time periods in which local agencies are expected to act on wireless facility siting applications. Initial comments were due February 3, 2014, and reply comments must be filed by March 5, 2014. WT Docket Nos. 13-238 and 13-32 and WC Docket No. 11-59. A copy of the NPRM is available here.

499A Due April 1, 2014; New Wholesale/Resale Certification Language Released

  • The FCC released its 2014 FCC Form 499-A and FCC Form 499-Q, along with updated instructions for completing those filings. Notably, the instructions include updated guidance for the execution of reseller certificates for services provided to resellers that pay into the federal Universal Service Fund. Copies of the Public Notice outlining the changes from the 2013 FCC Form 499-A and 499-Q can be found here, and the new versions of the forms can be found here, and here. The FCC Form 499-A is due April 1, 2014. (DA-14-119)

Key Industry Events

Mobile World Congress, February 24-27, 2014

  • For more details about this event in Barcelona, click here.

Channel Partners Conference & Expo, February 26-28, 2014

  • For more details about the event in Las Vegas, click here.

Metro Connect USA 2014, February 27-28, 2014

  • For more details about this event in Miami, click here.

News Roundup

Court Refuses To Certify TCPA Class Action Against Microsoft

  • On January 28, 2014, the United States District Court for the Southern District of California denied a plaintiff's motion to certify a class action against Microsoft Corp. predicated on alleged violations of the Telephone Consumer Protection Act (TCPA). Plaintiff Neil Smith sought certification of a class consisting of all individuals that "received a text message from short code 88202 containing the term 'Xbox' on September 12 or September 13, 2008." The plaintiff alleged that Microsoft utilized text-message advertising company Come&Stay, Inc. to send approximately 90,000 text messages promoting Microsoft's Xbox and that he did not consent to receive telemarketing text messages sent on behalf of Microsoft. Although Microsoft attacked the plaintiff's motion for class certification on several grounds, the court found that the plaintiff's proposed class would not satisfy the "superiority requirement" of Federal Rule of Civil Procedure 23(b)(3). This rule requires a party seeking class certification to demonstrate that "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." The court overturned its previous holding that the issue of "prior express consent" was an affirmative defense that the defendant bears the burden of proving and instead held that the absence of prior express consent "is one of the three elements of a TCPA claim, which Plaintiff bears the burden of satisfactorily establishing." Because Come&Stay went out of business and dissolved in 2012 without retaining any of its records evidencing whether it obtained consumers' prior express consent, the court ruled that it would "be manifestly unjust to" certify a class against Microsoft which would be "incapable of defending itself." In addition, the court ruled that "it would be extraordinarily difficult to identify the class members," communicate the required class notices, "and send the proposed class members their share of any recovery." Smith v. Microsoft Corp., Case No. 11-CV-1958-JLS-BGS (S.D. Cal., Jan. 28, 2014). A copy of the order can be found here.

DC Circuit Dismisses Challenge To FCC's Legal Opinions On Vicarious Liability for TCPA Violations

  • On January 22, 2014, the United States Court of Appeals for the District of Columbia Circuit dismissed a petition for review that Dish Network filed challenging the FCC's May 9, 2013 Declaratory Ruling interpreting the Telephone Consumer Protection Act (TCPA). In the Declaratory Ruling, the FCC concluded that a seller may be held vicariously liable for TCPA violations committed by third-party telemarketers. The FCC also held that whether a seller may be liable for the actions of a telemarketer depends on the federal common law of agency. The FCC then went on to provide "guidance" on the types of evidence that may support a finding of vicarious liability under the federal common law of agency. Dish Network sought review of the guidance, arguing that the FCC's discussion of how the common law of agency applies in TCPA cases was arbitrary and capricious and exceeded its authority. In dismissing Dish Network's petition, the D.C. Circuit held that the FCC's guidance "merely expresses a legal view" and has no binding effect on courts. Thus, while the FCC's guidance could prove persuasive to courts, the guidance was not a final order subject to review. Dish Network, L.L.C. v. FCC, No. 13-1182, 2014 WL 323660 (D.C. Cir. Jan. 22, 2014).

FCC Takes Further Action to Encourage Deployment of Text-to-911 Functionality

  • Last week, the FCC adopted a policy statement and second further notice of proposed rulemaking to speed the deployment of text-to-911 capabilities. According to the Commission, "text providers should enable the public to text 911 in an emergency" and it is "encouraging providers that have not begun deploying text-to-911 to forge solutions to meet this goal." In the rulemaking proposal, the Commission is considering requiring all text providers to be able to provide the capability by the end of this year. The notice seeks information about the technical issues that interconnected-text providers may encounter in routing text messages to emergency operators, and the obstacles that local and state emergency dispatch centers may experience in accepting and responding to requests for emergency assistance via text message. Comments on the further notice will be due 30 days after "Federal Register" publication and replies will be due 30 days later. PS dockets 11-153 and 10-255. The policy statement, further notice, and separate statements from the Commissioners are available here. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.