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TCPA Case Law and FCC Petitions Update via Technology Law Group

TELECOMMUNICATIONS

SNAP UPdateSM

April 29, 2014                                                                             By: Matthew R. Friedman, Esq.

 

TCPA Case Law and FCC Petitions Update

 

As discussed in TLG’s October 17, 2013 SNAPUPdate, the Federal Communications Commission’s (“FCC” or “Commission”) latest revisions to its rules implementing the Telephone Consumer Protection Act of 1991 (“TCPA”), which limit certain telephone solicitation practices, went into effect on October 16, 2013.  This SNAPUPdate discusses actions being taken by the FCC to clarify its TCPA rules.

 

On March 27, 2014, the FCC adopted and released a Declaratory Ruling, which clarified that text-based social networks may send administrative texts confirming consumers’ interest in joining one of the social network’s groups without violating the TCPA when consumers give express consent to participate in such group.  That same day, the FCC issued an order excluding from its TCPA prohibitions alerts by package delivery companies to wireless consumers about their packages, so long as the consumers are not charged and can opt out of future messages.  While these clarifications and actions only address niche issues that apply to only a small subset of entities affected by the TCPA, they – along with specific statements by FCC Commissioner O’Rielly – demonstrate the FCC’s recognition that its TCPA rules are ripe for clarification and that, in certain circumstances, the Commission should consider narrowing the types of calls that are prohibited.

 

As a part of this process, the FCC has released a number of public notices requesting public comment on various petitions for declaratory ruling, clarification, forbearance, and rulemaking.   One of these petitions – a petition for rulemaking filed by ACA International – requests that the FCC initiate a rulemaking to clarify certain issues, including whether “predictive dialers” categorically qualify as autodialers and whether the FCC should establish a “wrong number” safe harbor for non-telemarketing calls, which have led to confusion and differing interpretations by courts.  The comment cycle established by the FCC’s public notice on this petition has already past, but the petition received significant support, increasing the likelihood that the FCC will take further action on the petition in the near future.

 

Other public notices issued recently by the FCC have requested and received comment on additional issues that are causing substantial confusion and are ripe for clarification, such as:

 

–          Whether the TCPA applies to on-demand text services that are: 1) initiated by the consumer and not a telemarketer; 2) isolated, one-time messages sent immediately in response to a consumer’s specific request; and (3) contain only the specific information requested by the consumer?;

 

–          Whether the TCPA applies to informational, non-telemarketing autodialed and prerecorded calls to wireless numbers for which valid prior express consent has been obtained but which, unbeknownst to the calling party, have subsequently been reassigned from one wireless subscriber to another?; and

 

–          Whether providing a “doing business as” (d/b/a) name registered with a state corporation commission (or comparable regulatory authority) satisfies the caller identification requirements for artificial or prerecorded voice calls?

 

One recent petition for declaratory ruling and clarification, filed by TextMe, Inc., is currently open for comment.  The FCC is seeking comment on a number of issues raised in the petition, such as the requests for clarification: 1) of the meaning of the term “capacity” as used in the TCPA’s definition of “automatic telephone dialing system”; and 2) that users of TextMe’s service, instead of TextMe itself, make or send calls or text messages for purposes of the TCPA, or alternatively, that third party consent obtained through an intermediary satisfies the TCPA’s “prior express consent” requirement for calls and texts to wireless numbers.  Comments on these issues are due on May 7, 2014 and reply comments are due onMay 22, 2014.

 

If you would like a more detailed analysis of these FCC actions and recent actions by courts in interpreting key TCPA provisions, have questions about these or other telemarketing issues, or if we may be of assistance to you, please feel free to contact us.

 

 

 

© 2014 Technology Law Group. Technology Law Group LLC, is a Washington-based law firm specializing in telecommunications, transactional, litigation and regulatory issues.  The attorneys at Technology Law Group can be reached by phone at +1 202 895 1707 and by e-mail at mail@tlgdc.com.  TLG is dedicated to personal service and to providing high quality legal and consulting services that enable clients meet their business objectives.

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Posted by on April 29, 2014 in Uncategorized

 

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IS the cloud More affordable? Have we missed the budget opportunity with the cloud?

Typically it is found that the cloud can be more costly but many overlook other expenses that may be associated with premise based systems, When you start folding in HR, Healthcare, Training, and utilities you start to get a more accurate picture from an accounting perspective. Many of my clients are moving to the cloud for accounting purposes and some are not, also for accounting purposes. When you move to the cloud you are shifting amortized hardware purchases into lease fees for the cloud services provider. So this expense category shifts from the Capital Expenses part of the ledger to the Operating Expenses portion. 

It depends on what area of the corporate ledger the client wants to maximize. If you are a stable company looking to go public and want to look good to investors you may want to keep things in house, buy hardware and continue your amortization and Life Cycles. Perhaps your a startup and have limited capital resources and can carry services on your operating income (and also deduct directly from your income line) The cloud may be best. Then there are scenarios where organizations are doing a little of both or make radical shifts in either direction for various reasons. The upside to the cloud is the monthly service fees come directly off of your income where hardware is amortized over a typical 60 month schedule.

I always have these accounting conversations with my clients and prospects to determine how to best tailor my advice to optimize their ledgers as well as services. The Cloud is not the answer in every scenario and there are several things to consider and evaluate prior to making any long term decisions. For any assistance in doing so feel free to contact Total Telecom Consulting anytime. 

 
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Posted by on September 4, 2013 in Uncategorized

 

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Verizon overcharges Fairfax $3.1m for phone service

Taylor Holland

Staff writer

The Washington Examiner

Verizon has overbilled Fairfax County by more than $3 million for phone service since 2006, and despite regular complaints, the billing problems remain so routine that the cash-strapped county has had to assign personnel to monitor its phone bill.

The phone company has already refunded $3.1 million to the county after overbilling it for services, but the county’s Department of Information Technology just wrote Verizon to identify 97 additional billing errors costing $190,000.

“Clearly this concerns me,” said Supervisor Pat Herrity, R-Springfield. “But looking at the bigger picture, I’m shocked at the fact that they continue to make the same mistakes. You’d think they’d be able to get it right.”

Verizon has tried to fix the problems causing the overbillings, but the errors continue. As recently as July, Verizon inflated the county’s monthly phone bill by more than $80,000, a county audit shows.

Most of the overcharges — $2.5 million of the $3.1 million since 2006 — result from Verizon consistently billing the county for services above their contract rates. Most notably, Verizon has been charging a “dial tone tariff,” a fee charged to maintain a voice line, of $15.60 per phone line instead of the contracted rate of $12.

Verizon also erroneously charged the county $343,000 in late-payment charges it didn’t owe, $154,000 for long-distance calls that were never made and $101,000 in unauthorized third-party charges that were made by people not affiliated with the county government.

“The County Attorney’s Office is currently reviewing what recourse, if any, the County has to ensure that Verizon complies with acceptable billing practices,” the county’s audit stated.

Until Verizon can correct its errors, the county will assign staff to monitor its phone bill, Herrity said.

The county’s contract with Verizon expires in 2014, and county spokeswoman Merni Fitzgerald said the ongoing overcharge problems will be taken into consideration when the county considers renewing the contract.

The billing issues are in addition to the problems the county has hadwith Verizon’s oversight of the county’s 911 centers. The emergency phone lines failed during a destructive storm this summer, leaving more than 2 million people unable to reach emergency personnel.

Verizon spokesman Kevin Irland said the company works closely with Fairfax County to address concerns, and will continue to investigate and resolve any issues with bills when adjustments are warranted.

“The good news is they’ve cooperated during this process,” Herrity said. “Now they just need to get their bills right the first time.”

 
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Posted by on October 11, 2012 in Uncategorized

 

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MPLS for dummies

For businesses, being able to communicate information from one branch to another is vital. Keeping this information within the company is just as important, which is why companies are investing in Virtual Private Networks (VPN) to create channels for co-workers to communicate by, without worrying about the average Internet user accessing their information

The traditional way of creating this channel would be either to create a set of leased lines, or use Internet Protocol Security (IPSec). In the leased line option, businesses would contact their local telephone companies and have a personal, individual line running from their one company to another installed. Branches would interact on this specific telephone line, which had no access to any body outside the company. The downside was that the initial cost would be high; it would also take a fair amount of time to set up the line, especially if the branches were in different countries, and additionally, the maintenance cost is also expensive.

In IPSec, a set of protocols (agreed upon format) is created and each company would support the right ones. Specific hardware and software is implemented to create a secure channel. Because the companies are using a public line to create the network, certain protocols are created to secure the exchange of information. This information (which is called a packet) is encrypted. In IPSec, there are two encryption modes: Transport and Tunnel.

Transport encrypts only the data portion, or what is also known as the “payload”, but it leaves the header. Tunnel, which is a more secure, encrypts both the data and the header. The IPSec also incorporates another security system known as the Public Key. The Sender would use the Receiver’s public key code to send the Receiver the information. The Receiver would then decrypt the information using his/her private key. This is known as an Asymmetric Encryption as there are two parts involved.

By using this method, it ensures a secure exchange of packets. The IPSec system was created by the Internet Engineering Task Force (IETF) and is part of the Packet Switching network system. Companies would still have to incorporate a firewall to prevent unauthorized access to and from the private network.

The speed of which the packets exchange is fairly slow, which is why companies are now updating to a system called Multi Protocol Label Switching (MPLS). This system operates on the Open System Interconnection (OSI) Model Layer (as does the IPSec). The OSI has 7 layers, which all these systems operate on. It is a network framework for implementing protocols, where control is passed from one layer to the next.

A Sender would have to go through these seven layers before the information gets send through, then, in order for the Receiver to receive the information, he/she would have to go through the same levels. The seven levels are as follows: Layer 7 – Application; at this stage the communication partners identify themselves through their server, user authenticate and privacy plus any other constraints. Layer 6 – Presentation; this level encrypts from the application to the network, transforming it so the network can accept it. This is also called the Syntax (spelling and grammar of programming language) Layer.

Layer 5 – Session; at this point, it establishes, manages, terminates and connects between the applications. Layer 4 – Transport; this is where the data is transferred. Layer 3 – Network; switching and routing technologies transmit the data from one node (processing location i.e.: Computer or Printer) to another node. This is also when the packet sequence comes into play. Layer 2 – Data link; packets are encoded and decoded into bits. There are two sub layers, which are Media Access Control (MAC) and Logical Link Control (LLC). Link 1 -Physical; where the information is finally conveyed through the physical wires, only to connect to another Layer 1 on the other side. It then passes back from Layer 1 to 7 to the receiver.

The MPSL uses a labeling system, where the packets are labeled by the Label Edge Routers, with their destination address, their source address as well as other information. This enables the packet to skip some of the layers in the OSI model, causing the exchange to be more efficient and effective. The MPLS also places outgoing labels on the packets, by corresponding with the Label Switch Paths (LSP). This diverts and routes traffic based on the data stream type and Internet access, causing more control for your Internet service provider to manage the interaction between your companies.

The benefits of using MPLS are simply speed and more control, which is vital in the World Wide Web. Firewalls are also put in place for extra security but overall the MPLS is fast becoming the mode of transport for packet switching between companies as it is proving to be one of the more secure ways of keeping information within the business.

This article looks into the different options of Virtual Private Networking for businesses and what makes MPLS stand out from the rest

 
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Posted by on September 24, 2012 in Uncategorized

 

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Total Telecom Consulting & Comcast Introduces Metro Ethernet Services to Address Bandwidth, Application and Reliability Requirements of medium / mid sized businesses

Total Telecom Consulting & Comcast Corporation (Nasdaq: CMCSA, CMCSK), one of the nation’s leading providers of entertainment, information and communications products and services, today announced Metro Ethernet services as part of an ongoing strategy to expand its portfolio of business services to meet the requirements of larger customers. Targeted at mid-sized businesses with 20 – 500 employees, Comcast’s Metro Ethernet services provide access to the Company’s next-generation fiber optic network that provides a better choice for businesses with high-bandwidth needs and often multiple locations. The services are now available in more than twenty major U.S. markets, with expansion into new markets planned in the months ahead.

Analysts expect the U.S. business carrier Ethernet services market will continue to grow by double-digits as mid-sized businesses look to streamline the cost and performance of their wide area networks (WAN) by upgrading to Ethernet from legacy technologies such as T1 lines, Frame Relay and ATM. Today, customers with those services typically must rely on bonding multiple T1 lines or fractional T3 lines. Doing so can result in an expensive and limited capacity solution unable to address escalating bandwidth requirements for cloud computing, business continuity, business process automation, software-as-a- service (SaaS) and other applications.

Comcast Metro Ethernet services are delivered using the Company’s industry leading fiber-based IP network. Unlike competitive carriers that simply resell the phone company’s network, Comcast is giving customers a true alternative network to maximize the performance and reliability of their business communications and applications. Comcast delivers bandwidth from 1 Mbps up to 10 Gbps that can be remotely scaled in increments of 1 Mbps, 10 Mbps, 100 Mbps or 1 Gbps, and offered with three different classes of service. Comcast is the first carrier of Metro Ethernet services to have all three certifications from the Metro Ethernet Forum (MEF 9, 14 and 18), which are backed by strict service level agreements, and monitored 24x7x365 from Comcast’s dedicated Network Operations Centers.

“Our fiber-rich network powers our Metro Ethernet services and provides a secure, reliable and cost- effective solution for mid-sized businesses’ data needs,” said Bill Stemper, President of Comcast Business Services. “Metro Ethernet is quickly overtaking T1 and other legacy services as the preferred technology for business communications. Just as broadband supplanted dial-up in consumers’ homes, our new Metro Ethernet services are designed to help businesses compete and win using our fast and scalable digital platform.”

Sandra Palumbo, Research Fellow at Yankee Group, commented, “As mid-sized businesses increasingly operate within a virtualized IT environment of cloud and SaaS resources to improve productivity and reduce operational expenses, their demand for secure, reliable and high-performance connectivity will continue to grow. This market segment has high-bandwidth requirements across multiple sites and values the lower cost of ownership, simplicity and scalable capacity of Metro Ethernet. Significant last mile networks and investments in advanced Carrier Ethernet network infrastructure are vital.”

Delivered from an industry leading fiber-based IP network featuring more than 147,000 miles of fiber optic cable and serving 20 of the nation’s 25 largest markets, Comcast offers four Metro Ethernet Services, including:

Ethernet Private Line Service – point-to-point connectivity between two customer sites for bandwidth-intensive applications.

Ethernet Virtual Private Line Service – a point-to-multipoint connection that allows customers to tailor bandwidth, performance characteristics and cost to meet the needs of their applications.

Ethernet Network Service – multipoint-to-multipoint connectivity to connect organizations with high- bandwidth requirements and multiple locations across Comcast’s network.

Ethernet Dedicated Internet Access Service –continuous, high-bandwidth connectivity between customers’ LANs and the public Internet.

Comcast currently provides Metro Ethernet services in the following markets: Atlanta, Baltimore, Boston, Chicago, Denver, Detroit, Harrisburg (Pa.), Hartford, Houston, Indianapolis, Jacksonville, Miami, Nashville, state of New Jersey, Oakland, Philadelphia, Pittsburgh, Portland, Sacramento, Salt Lake City, San Francisco, San Jose, Seattle, Washington D.C. and western New England. Additional markets will be launched on an ongoing basis.

For more information, call 412.450.0005 or visit http://wwwtotaltelecomconsulting.com

 

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