FCC – Duane Morris TechLaw

September 28, 2022 by J. Tyson Covey

Ninth Circuit Holds FCC Cell Phone Radiofrequency (RF) Radiation Rules Preempt State-Law Claims Against Apple and Samsung

The RF Radiation Issue

Over the years, various claims have been made about potential adverse health impacts from the radiofrequency (RF) radiation emissions of cell phones, which in some instances can cause biological effects by increasing the temperature of tissues. Federal Communications Commission (FCC) rules set RF radiation limits (ceilings) that cell phone manufacturers must meet in order to have the FCC authorize their phones for sale. See 47 C.F.R. §§ 12.1093(d)(1) and 2.907.

But does complying with the FCC’s rules protect the manufacturers from state-law claims? A recent Ninth Circuit decision appears to answer that question, holding that held that state-law tort and consumer-fraud claims regarding RF radiation conflicted with the FCC’s rules, which strike a careful balance between competing interests that the FCC is charged with addressing under the Communications Act of 1934 (47 U.S.C. §§ 151 et seq.), and were therefore preempted. Cohen v. Apple, Inc., ___ F. 4th ___, 2022 WL3696583 (9th Cir., Aug. 26, 202).

Continue reading “Ninth Circuit Holds FCC Cell Phone Radiofrequency (RF) Radiation Rules Preempt State-Law Claims Against Apple and Samsung”

July 26, 2022 by J. Tyson Covey

FCC Proposes $116 Million Fine for Scheme Mixing Robocalling, Traffic Pumping, and Attacks on Phone Systems

In its latest salvo to combat illegal robocalling, the FCC proposed a $116 million fine for an alleged scheme mixing robocalling with traffic pumping to fund telephone denial of service attacks (TDoS) against other companies. In the Matter of Thomas Dorsher, ChariTel Inc., Ontel Inc., and ScammerBlaster Inc., Notice of Apparent Liability, FCC 22-57 (rel. July 14, 2022). The alleged scheme at issue involved Thomas Dorsher, ChariTel Inc., Ontel Inc., and ScammerBlaster Inc.

As the FCC described it, in a two-month period at the start of 2021, ChariTel made about 10 million prerecorded voice message calls (robocalls) to toll free numbers without the recipients’ consent. If the recipient did not terminate the call, these robocalls would play the prerecorded message continuously for up to 10 hours, effectively taking a line out of service and costing the toll free service provider an opportunity to talk to actual customers on that line. Ironically, the robocalls at issue purported to be public service announcements to warn against scam calls, and encouraged recipients to report such calls.

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July 21, 2022 by J. Tyson Covey

Franchise Fees and the FCC’s Mixed-Use Rule – Oregon Federal Decision for Comcast May Have Wide Impact

For decades, cities and municipalities have counted on steady revenue from the franchise fees they charge cable companies for use of the public rights-of-way (ROWs). Such fees are imposed by local franchising authorities (LFAs). Under the federal Cable Act, these fees could be as high as 5% of a cable operator’s gross revenues from providing cable TV service. 47 U.S.C. § 542(b).

As the television industry has migrated toward streaming platforms, cable TV revenues have been affected, leading local governments to seek new sources of income from entities using the public ROW. One effort has been to try to impose local fees on streaming platforms, like Netflix or Hulu, that send video using broadband service provided over wires in the public ROW. That has been largely unsuccessful, as discussed here.

Continue reading “Franchise Fees and the FCC’s Mixed-Use Rule – Oregon Federal Decision for Comcast May Have Wide Impact”

February 16, 2022 by J. Tyson Covey

Telecom Decision – D.C. Circuit Upholds FCC Antenna Rule Aimed at Promoting Wireless Broadband

Expanding the availability of broadband internet service is among the hottest telecommunications policy topics of the day, especially as the federal and state governments funnel billions of dollars toward more deployment and higher speeds. Last week the D.C. Circuit upheld an FCC rule aimed at that goal, which allows commercial-grade wireless internet antennas in residential areas, a move sought by wireless internet providers.

As technology has changed over time, the FCC has adopted and amended its rules that allow antennas to be placed on private dwellings. The original 1996 regulation allowed for installation of antennas on private property to receive services like satellite and cable television, and preempted state and local restrictions. A 2004 amendment allowed such antennas to serve multiple customers in a single location, provided the antennas were not used primarily as “hubs for the distribution of service.” And in 2021, the FCC amended the rule to allow such antennas to be used as hubs for the distribution of service, paving the way for commercial-grade equipment for, among other things, wireless internet service. Children’s Health Defense (CHD) and others appealed, concerned about the health effects of such antennas on nearby residents with radiofrequency sensitivity. The court’s decision, however, deals mainly with fine legal points of rejecting CHD’s challenges. Children’s Health Defense v. FCC, No. 21-1075 (D.C. Cir. Feb. 11, 2022).

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April 2, 2021April 2, 2021 by J. Tyson Covey

CLECs Challenge FCC’s 2019 Access Stimulation Rules

Briefing is now complete at the D.C. Circuit in the latest appeal involving the FCC’s rules on access stimulation schemes. Access stimulation (or traffic pumping) refers to a practice in which a local telephone company partners with entities that generate large amounts of terminating long-distance traffic, such as “free” conference calling providers and chat lines. This allows the local telephone company to generate large revenues from the access charges that long-distance carriers must pay to terminate the calls through the local telephone company. The revenues are then shared with the conferencing or chat line entities, which allows the services to be “free” to the end users.

In 2011, the FCC declared access stimulation a “wasteful arbitrage scheme” and adopted rules to curb the practice, primarily through requiring companies engaged in traffic pumping to reduce their rates to those of the large, urban carriers. Connect America Fund, 26 FCC Rcd 17663, ¶¶ 656-201 (2011), aff’d, In re FCC 11-161, 753 F.3d 1015 (10^th Cir. 2014). However, those rules did not reduce the practice as much as hoped. For instance, some traffic pumpers adjusted their schemes by including intermediate carriers (tandem and transport providers) in the call flow, which increased the overall charges.

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March 19, 2021 by J. Tyson Covey

Tenth Circuit Holds There is No Limitations Period for FCC Debt Collections

In a decision issued this week, the Tenth Circuit held that when the FCC acts to collect debts to the United States, rather than impose a fine or punishment, its actions are governed by the Debt Collection Improvements Act (DCIA), 31 U.S.C. §§ 3711-17, which means there is no limitations period. Blanca Tel. Co. v. FCC, Nos. 20-9510 and 20-9524 (10^th Cir Mar. 15, 2021).

The Universal Service Fund (USF) provides subsidies to telephone companies to promote universal availability of telephone service. The FCC administers and enforces the rules governing the distribution of USF support to carriers. During the relevant period (2005-2010) the FCC’s rules required incumbent local exchange carriers (incumbent LECs) to use accounting that allocated costs between regulated and unregulated activities, because those carriers could not receive USF support for unregulated activities or for service outside their designated “study area.” Cellular service is an unregulated service for USF purposes (except for “basic” cellular service). Blanca Telephone Co. was an incumbent LEC but did not separate its costs for regulated and unregulated service (such as cellular service), which resulted in Blanca receiving more than $6 million in USF support for non-basic cellular service and service outside its study area.

The FCC sought to recover that money in 2016 and eventually issued an order requiring repayment. Blanca challenged the order, arguing the FCC was time-barred under either 47 U.S.C. § 503(b)(6) (one-year limitations period) or 28 U.S.C. § 2462 (five years). The FCC, however, said it acted under the DCIA, which expressly provides there is no limitations period. 31 U.S.C. §§ 3716(e)(1). In deciding which statute applied, the first key issue was whether the FCC was imposing a penalty (and thus governed by one of the statutes Blanca cited) or engaged in debt collection. The court held that even though Blanca violated a public law and the public was being protected by the FCC’s actions, including by deterrence of others, the action was best treated as debt collection because the FCC’s core purpose was to recover its overpayment of USF support to Blanca. The second key issue was whether the collection was of funds “owed to the United States” per 31 U.S.C. § 3701(b)(1). The court held it was, as the FCC was collecting amounts “disallowed by audits performed by the Inspector General of the agency administering the program,” as allowed by 31 U.S.C. § 3701(b)(1)(c). The decision is notable because, although it is tied to the specific facts of the case, it allows FCC recovery for potentially very old regulatory violations if they involve a true debt to the government.

If you have any questions regarding this post or other telecommunications issues, please contact Ty Covey (jtcovey@duanemorris.com) or Brian McAleenan (bamcaleenan@duanemorris.com).

January 20, 2021 by J. Tyson Covey

FCC Emphasizes Limits On Local Fees For Small-Cell Facilities

Wireless telecom providers have been deploying new small-cell technology and equipment for 5G service across the nation. Deployment often requires the providers to obtain access to public rights of way to put their small-cell equipment on cities’ or municipalities’ utility poles (or use underground ducts or conduit). Cities and municipalities, of course, seek compensation for allowing this access to public equipment and rights-of-way. The FCC addressed this compensation issue in 2018, setting safe-harbor caps on local fees but allowing higher charges if they meet certain requirements. Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 33 FCC Rcd 9088 (2018). The Ninth Circuit upheld that decision in relevant part. City of Portland v. FCC, 969 F.3d 1020 (9^th Cir. 2020).

Clark County, Nevada (home of Las Vegas) adopted an ordinance with annual fees well above the FCC’s safe harbors. The ordinance required holder of a Master Use License Fee to pay 5% of gross revenues each calendar quarter, plus a Wireless Site License Fee of $700 to $3,960/year/facility (with annual increases of 2%), plus an Annual Inspection Fee of $500 per Small Wireless Facility in county rights-of-way. Verizon challenged that ordinance at the FCC as being preempted by 47 U.S.C. 253(d) because it effectively prohibited Verzon from providing service. The FCC, through its Wireless Telecommunications Bureau, recently dismissed Verizon’s complaint without prejudice in light of Clark County having adopted a new ordinance. Petition for Declaratory Ruling That Clark County, Nevada Ordinance No. 4659 is Unlawful Under Section 253 of the Communications Act as Interpreted by the Federal Communications Commission and is Preempted, WT Docket No. 19-230, DA 21-59 (rel. Jan. 14, 2021). In doing so, however, the FCC emphasized three key aspects of its rules that certainly will bear on any pending or future disputes between wireless providers and other municipalities that seek to impose fees above the FCC’s safe harbors. These points appear directed at preventing other state or local authorities from making some of the same arguments Clark County was making.

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November 1, 2018 by Eric J. Sinrod

California Net Neutrality Law Put On Hold Pending Federal Litigation

California recently passed what some argue to be the most robust net neutrality state law in the United States. That law has not yet gone into effect.

The very same day that California Governor Jerry Brown signed the net neutrality bill into law, the US Department of Justice was quick to filed a federal lawsuit, among other goals, to block implementation of the law. And last week, the Department of Justice and California Attorney General Xavier Becerra entered into an agreement to further postpone implementation of the California net neutrality law until the federal lawsuit is concluded.

So, what is at stake here? Continue reading “California Net Neutrality Law Put On Hold Pending Federal Litigation”

February 17, 2017 by Duane Morris

FTC, FCC Flex Muscles

Duane Morris partner Joseph Burton was featured in a video on Bank Info Security on the impact of regulators involved in cybersecurity.

The Federal Trade Commission and the Federal Communications Commission are among U.S. regulators now starting to flex their muscles when it comes to enforcing cybersecurity standards, says Burton. What enforcement trends might we expect to see in 2017?

To view the video, please visit the Bank Info Security website.