Martin in the Hot Seat (Again)

Today, the Federal Communications Commission (“Commission” or “FCC”) voted to overturn its 32-year old media ownership prohibition. Under the ban, broadcasters in the nation’s 20 largest markets are prohibited from also owning a newspaper. Today’s vote is somewhat surprising due to the intense criticism that Chairman Kevin Martin & Co. have received in recent weeks from members of the House and Senate on media ownership, Commission oversight and operations, as well as a host of other issues. Legislators have questioned Martin’s self-imposed “KGB-like atmosphere,” lack of accessibility and a slew of decisions based on little evidence or notice. Although Martin promised lawmakers more transparency, Martin appears to have ignored his own recommendations by continuing his pattern of making last minute changes to the proposal prior to the Commission vote. Again, significant backlash is expected due to Martin’s rush to bring the item to agenda and a vote.

Cable companies are most affected by Martin’s erratic regulatory agenda. It is expected that the Commission will pass a rule prohibiting cable companies from serving no more than 30% of the nation’s subscribers in the near future. Martin also has hopes of reincarnating his a-la-carte pricing plan and extending indecency rules to apply to cable. Hopefully Martin will raise these, and all other issues, in an open forum, where such contentious issues are subject to the appropriate level the rhetoric and debate warranted.

GAO Urges the FCC to Develop a Comprehensive DTV Transition Plan

The Federal Communications Commission (“Commission”) has suffered yet another embarrassing moment in its highly criticized digital television (“DTV”) transition planning. On December 11, the General Accountability Office released a report, expanding upon points made in prior Congressional testimony which faulted the Commission for not having a fully developed plan in place, with a little over a year until the hard date of the transition is met. Specifically, the GAO requested that the plan include: (1) detailed goals, milestones, and time frames that can be used to gauge performance and progress, identify gaps, and determine areas for improvement; (2) strategies for collaboration between public and private sector stakeholders to agree on roles and responsibilities; (3) a description of reporting requirements to track stakeholder efforts against planned goals; and (4) strategies for managing and mitigating risks to avoid potential problems and target federal resources.” All this, of course, takes valuable Commission time and resources, both of which are running thin given the time constraints that the Commission is now operating under.

While Commissioner Copps emphatically stated that “[i]t continues to astound [him] that we do not have a comprehensive DTV transition plan,” and that “[t]his effort is far too important to be left to chance or patchwork decisions by individual companies,” it remains to be seen whether the Commission will act expeditiously to implements a workable solution.

Commission Seeks to Extend Do-Not-Call Registry Beyond 5-Year Limit

On November 27, the Commission adopted a NPRM that examined whether numbers placed on the Do-Not-Call registry should be kept on the list beyond the current 5-year period. The NPRM proposes that telemarketers would be obligated to honor the registrations either until the number was removed by consumers or the database administrator, due to disconnection or reassignment.

Extension of the Do-Not-Call registry rules would prolong the tension between the Commission’s existing Customer Proprietary Network Information (“CPNI”) rules and telemarketing regulation. If a subscriber is listed on a Do-Not-Call registry, the carrier or marketer would not be permitted to contact that customer via telephone, even if contact would be permissible under the existing CPNI regime.

Commission Examines Formalized Forbearance Procedures

In a Notice of Proposed Rulemaking (“NPRM”) released on November 30, 2007, the Commission responded to a petition filed by several CLECs asking the Commission to tighten its procedural requirements for granting forbearance under Section 10 of the Telecommunications Act of 1996 (“Act”).

The CLECs asked for rules establishing notice and burden-of-proof requirements, opportunity for comment, and access to documents in forbearance proceedings.

Approval of the petition marks a significant win for CLECs, who have been abused by last-minute submissions made by the Bells to the Commission. The Bells have used the lax forbearance rules to their advantage in recent years. Currently the Bells are permitted to ask the Commission to ease pricing restrictions on services they sell to competitors on a market-to-market basis. The lack of procedural safeguards has left everyone except the entity seeking relief completely unaware of the extent of the relief granted to the Bells. Establishing formalized procedures guarantees transparency in the process by ensuring that all affected parties have a full and fair opportunity to voice concerns to the Commission.