May 21, 2013

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SB 13-287: Amending Certain Provision Relating to Telecommunications

May 10, 2013 by Leave a Comment

On Monday, April 29, 2013, Sen. Jeanne Nicholson introduced SB 13-287 – Concerning Telecommunications. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The high cost support mechanism reimburses some of the cost of providing telephone services to rural areas. The bill adds broadband internet service in unserved and underserved areas to the services that are reimbursable.

As introduced, the bill exempts voice-over-internet-protocol service and internet-protocol-enabled service from regulation by the Public Utilities Commission (PUC) and exempts broadband service from state sales tax. It also exempts basic local exchange service from regulation in geographic areas in which the PUC has determined that effective competition exists.

The bill clarifies that this exemption does not affect an entity’s rights and obligations under federal law, nor does it affect the PUC’s authority with respect to: Wholesale telecommunications rates; services; agreements; providers; tariffs; the resolution of disputes regarding intercarrier compensation; or oversight of the implementation of a next-generation 911 plan with regard to interoperability and performance, operational, and system standards.

The bill was introduced on April 29 and assigned to the State, Veterans, & Military Affairs Committee. On May 1, the State, Veterans, & Military Affairs amended the bill and sent it to the full Senate for consideration on 2nd Reading.

Since this summary, the bill lost with amendments on Second Reading in the Senate. It was laid over until May 10, 2013.

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HB 13-1059: Exempting Telecommunications Equipment Used in the Provision of Telecommunications from Sales and Use Tax

February 19, 2013 by Leave a Comment

On January 9, 2013, Rep. Cheri Gerou introduced HB 13-1059 - Concerning a Sales and Use Tax Exemption for Equipment Used by a Telecommunications Provider in the Provision of Telecommunications Services. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates a sales and use tax exemption for a telecommunications provider’s equipment that is used directly in the provision of telephone service, cable television service, broadband communications service, or mobile telecommunications service.

Statutory towns, cities, and counties are currently authorized to create a similar sales and use tax exemption. The bill does not change this authority, but the law is reorganized to be consistent with other instances where a local government has authority to enact an exemption based on a state exemption. Assigned to the Business, Labor, Economic, & Workforce Development Committee.

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Tenth Circuit: Defenses Do Not Confer Federal Question Jurisdiction

October 10, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals issued its opinion in Firstenberg v. City of Santa Fe on Tuesday, October 9, 2012.

Arthur Firstenberg allegedly suffers from electromagnetic hypersensitivity (EHS), which requires him to avoid exposure to sources of electromagnetic radiation. One source is cell-phone towers, sometimes called “base stations,” which emit a form of energy known as radiofrequency (RF) radiation. After an AT&T Mobility Services, LLC upgrade to 3G increased the amount of RF radiation coming from its base stations, Firstenberg petitioned for a writ of mandamus in New Mexico state court, naming the City of Santa Fe and AT&T as defendants. AT&T did not apply for or obtain special exceptions from the City prior to initiating the upgrade. Mr. Firstenberg believed this was improper under § 14-3.6(B)(4)(b) of the City’s Land Development Code, which requires the City’s Board of Adjustment to approve an additional special exception if there is a “more intense use” of an existing structure.

In Firstenberg’s petition, he mentioned Title II of the Americans with Disabilities Act and the Fifth and Fourteenth Amendments of the Constitution under his argument section. He did not mention them in his cause of action or prayer for relief sections. The state court issued a writ of mandamus ordering the City to prohibit the 3G broadcasts unless and until special exceptions were granted or to show cause why it had not done so. AT&T and the City then removed the action to federal district court and each filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The district court concluded it had federal question jurisdiction and dismissed both claims, holding that the federal Telecommunications Act of 1996 (TCA) preempted the City’s authority to regulate AT&T’s upgrade.

Before oral argument in the Tenth Circuit, the court “asked the parties to file supplemental briefs addressing whether Mr. Firstenberg’s complaint was sufficiently ‘well-pleaded’ to satisfy the requirements for federal-question jurisdiction under 28 U.S.C. § 1331.” To arise under federal law, Firstenberg’s complaint  (his petition for mandamus) must have established that federal law created his cause of action or that his right to relief necessarily depended on resolution of a substantial question of federal law. The Tenth Circuit went through the federal laws mentioned in the complaint and held that all those issues were only mentioned as an anticipated defense (the TCA) or as responses to that defense. Because defenses, whether anticipated or asserted, are not enough to confer federal jurisdiction, the court reversed the dismissal and remanded the case to the district court to remand the case to state court.

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Tenth Circuit: FCC Denial of Petition for Regulatory Forbearance Pertaining to Telecommunications Services Was Reasoned and Reasonable

August 7, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Qwest Corp. v. FCC on Monday, August 6, 2012.

The Tenth Circuit denied the petition for review. Petitioner  sought “review of an order of the Federal Communications Commission (FCC) denying Petitioner’s petition for regulatory forbearance pursuant to 47 U.S.C. § 160(a). Petitioner filed a petition with the FCC in March 2009 seeking relief from certain regulations pertaining to telecommunications services that it provides in the Phoenix, Arizona, metropolitan statistical area (MSA). The FCC denied the petition, citing insufficient evidence of sufficiently robust competition that would preclude Petitioner from raising prices, unreasonably discriminating, and harming consumers. Petitioner challenges the FCC’s decision only as it pertains to Petitioner’s mass-market retail services in the Phoenix MSA. The Court denied the petition, finding that the Phoenix Order was a reasoned and reasonable decision.

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Colorado Supreme Court: PUC Considered All Mandated Factors in Setting Rates for Basic Residential Phone Service with Evidence to Support Decision

April 30, 2012 by Leave a Comment

The Colorado Supreme Court issued its opinion in Colorado Office of Consumer Counsel v. Colorado Public Utilities Commission on April 30, 2012.

Basic Residential Telephone Service Regulation—Maximum Rate Setting.

The Supreme Court reversed the district court’s judgment, holding that the Colorado Public Utilities Commission (PUC) regularly pursued its authority in setting maximum rates for basic residential telephone service pursuant to CRS § 40-15-502(3)(b). The PUC considered all of the statutorily mandated factors in setting the rates and there was substantial evidence supporting its decision.

Summary and full case available here.

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SB 12-157: Making Changes to Regulation of Telecommunications Services Under the Public Utilities Commission and Enacting the “Telecommunications Modernization Act of 2012″

March 26, 2012 by Leave a Comment

On March 8, 2012, Sen. Mark Scheffel and Rep. Angela Williams introduced SB 12-157 – Concerning the Regulation of Telecommunications Service and, in Connection Therewith, Enacting the “Telecommunications Modernization Act of 2012.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In 1987, article 15 of title 40, Colorado Revised Statutes, governing intrastate telecommunications services, was repealed and reenacted. Since then, the statutes have been amended to accommodate technological changes and increased competition in many segments of the communications industry but, for the most part, retain the regulatory structure that developed in an era of traditional voice-centric wireline service.

The bill makes substantial revisions to the statutes governing intrastate telecommunications services (title 40 article 15) to reflect current conditions and in anticipation of future evolution of the market. The bill is assigned to the Business, Labor and Technology Committee; committee review is scheduled for Monday, March 19 at 1:30 p.m.

Since this summary, the bill passed out of the Business, Labor, and Technology Committee with amendments and was referred to the Appropriations Committee.

Summaries of other featured bills can be found here.

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HB 12-1224: Establishing Colorado Communications Systems Authority and Creating Consolidated Communications Fund

March 16, 2012 by Leave a Comment

On February 6, 2012, Rep. Jon Becker and Sen. Kent Lambert introduced HB 12-1224 – Concerning the Creation of a Consolidated Communications System Authority. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Joint Budget Committee

The bill creates the consolidated communications system authority. The bill defines the membership of the authority as the entities that use the statewide digital trunked radio system as their primary means of public safety wireless communication:

  • Law enforcement agencies and fire departments;
  • A licensed ambulance or emergency medical service;
  • School districts or schools;
  • Agencies of a city, county, city and county, special district or other political subdivision of the state;
  • Agencies of an Indian tribe;
  • Agencies of the state or federal government; and
  • Persons or entities eligible to hold an authorization in the public safety radio pool pursuant to rules of the federal communications commission.

The bill defines the purposes of the authority to include:

  • Advising the governor and the general assembly of the development, maintenance, upgrade, and operation of the system;
  • Representing its members in matters concerning technology, rules, spectrum allocations, and radio frequency licensing;
  • Identifying and reporting on operational and capital infrastructure and technology needs of the system;
  • Identifying and reporting on funding options for system sustainability; and
  • Soliciting and receiving appropriations, grants, and other moneys to expand, upgrade, and operate the system.

The bill specifies that the authority shall not assess any fee on its members or take any assets owned by a member without prior agreement. The bill terminates the authority on July 1, 2018, unless extended through the sunset review process. The bill also specifies that the income and property of the authority are exempt from all state and local taxes and assessments. The bill has moved through the House and has been assigned to the Appropriations Committee in the Senate.

Summaries of other featured bills can be found here.

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Tenth Circuit: Relay Service Rates Set by FCC Not in Violation of Statute and Not Arbitrary and Capricious

October 19, 2011 by Leave a Comment

The Tenth Circuit Court of Appeals issued its opinion in Sorenson Commc’ns, Inc. v. FCC on Tuesday, October 18, 2011.

The Tenth Circuit denied the petition for review. Petitioner challenges the 2010-2011 rates set by the Federal Communication Commission (FCC) to compensate Video Relay Service providers, including Petitioner. Petitioner claims that the rates are in violation of 47 U.S.C. § 225 and are also  arbitrary and capricious in violation of the Administrative Procedure Act (APA).

Section 225 directs the FCC to ensure the availability of nationwide access to “functionally equivalent” relay service, “to the extent possible and in the most efficient manner, to hearing-impaired and speech-impaired individuals in the United States.” Petitioner alleges that the reimbursement rates set by the FCC’s rates are so low that the result violates these statutory requirements. However, Petitioner has failed to show the FCC’s interpretation of “functionally equivalent” is impermissible under the statute. “Consequently, it has not established that the interim rates violate the functional equivalence requirement of § 225.” In terms of the APA argument, the Court acknowledged its deference when reviewing ratemaking orders because “agency ratemaking is far from an exact science and involves policy determinations in which the agency is acknowledged to have expertise.” As such, the FCC is entitled to substantial deference when adopting interim rates. The Commission provided a sufficient explanation for the action it chose to establish the rates and, under the Court’s deferential review, that is all that is required. The rates were therefore not arbitrary and capricious.

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CU Law Dean Phil Weiser to Speak on Reflections as White House Technology Advisor

September 6, 2011 by Leave a Comment

On Wednesday, September 7, 2011, the new Dean of the University of Colorado Law School, Phil Weiser, will give a talk on his “Reflections on Technology Policy While Serving as the Senior Advisor for Technology and Innovation at the White House” for the past two years. Following the presentation, Brad Feld will moderate a question and answer session and welcome questions from the audience.

The event will be held at the CU Law School Wolf Law Building’s Wittemyer Courtroom, from 6:30-7:30 pm. A networking reception will follow.

Click here for more information about the presentation, and click here to register.

Phil Weiser is the Dean and Thompson Professor at the University of Colorado Law School. Prior to re-joining Colorado Law, he served as the Senior Advisor for Technology and Innovation to the National Economic Council Director at the White House. Previously, he served as the Deputy Assistant Attorney General for International, Policy, and Appellate Matters in the United States Justice Department’s Antitrust Division. Before joining the Obama Administration, Weiser was a professor of law and telecommunications at the University of Colorado, where he also served as an Associate Dean. At CU, Weiser established a national center of excellence in telecommunications and technology law, founding the Journal on Telecommunications & High Technology Law and the Silicon Flatirons Center for Law, Technology, and Entrepreneurship. Over the last decade, Weiser has written and taught in the areas of technology, innovation, and competition policy.

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Tenth Circuit: All Unbundled Network Element Loops Count Toward Number of Business Lines in Wire Center

August 29, 2011 by Leave a Comment

The Tenth Circuit Court of Appeals issued its opinion in Qwest Corp. v. Colorado Public Utilities Comm’n on Friday, August 26, 2011.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. “In order to facilitate competition in the local telephone service market, federal law requires incumbent local exchange carriers (ILECs), such as Qwest, to lease certain parts of their telecommunications networks to competitive local exchange carriers (CLECs), such as Cbeyond. ILECs are relieved of this obligation if, among other circumstances, the number of ‘business lines’ in a local exchange reaches a certain threshold because, in the FCC’s view, a sufficient number of business lines shows that it would be economic for CLECs to invest in their own infrastructure. The term ‘business line’ and the method of counting business lines are defined in 47 C.F.R. § 51.5. The parties disagree as to which types of a particular network element—UNE loops—are included in the business line count. The district court held that UNE loops serving non-business customers are included in the business line count and that non-switched UNE loops are not included in the business line count.” The parties cross-appealed the decision.

The Court affirmed the district court and held that 47 C.F.R. § 51.5 plainly states that all UNE loops count towards the number of business lines in a wire center, regardless of whether it is used to serve a business or non-business customer. However, the Court also found that “the FCC’s interpretation of § 51.5 is consistent with existing reporting requirements, whereas the defendants’ interpretation would require state utility commissions to obtain data relating to CLECs’ use of UNEs in order to determine whether a UNE was connected to a switch or not.” The district court was reversed in part because “the FCC’s interpretation is not plainly erroneous or inconsistent with the language of the regulation, [and the Court had to] defer to the FCC’s position and hold that the business line count includes UNE loops that are not connected to switches.”

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SB 11-262: Directing Colorado PUC to Withdraw Price Controls for All Services Except Basic Local Exchange and Emergency

May 5, 2011 by Leave a Comment

On April 25, 2011, Sens. Mark Scheffel, R-Castle Rock, and Lois Tochtrop, D-Thornton, and Reps. Carole Murray, R-Castle Rock, and Angela Williams, D-Denver, introduced SB 11-262 – Concerning the regulation of telecommunications service by the Public Utilities Commission, and, in connection therewith, eliminating price regulation for all but basic local exchange service and emergency service and phasing out the high-cost support mechanism. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill repeals and reenacts the existing statutes governing regulation of telecommunications by the Colorado public utilities commission (PUC). Retail and wholesale services are treated separately. The PUC is directed to withdraw price controls for all services except basic local exchange service and emergency service, and to periodically reexamine whether competition has advanced sufficiently in particular geographic areas so that price controls on these services may also be withdrawn. The bill preserves the PUC’s jurisdiction over service quality, including the authority to receive and resolve consumer complaints.

In addition, the bill:

  • Adds voice-over-internet-protocol (VoIP) service as a recognized alternative for providing voice communications, and includes VoIP providers among those who must contribute to the funding of basic service in high-cost areas and emergency service as long as funding mechanisms for those services continue;
  • Requires registration for all carriers but eliminates the need for a certificate of public convenience and necessity for carriers other than those that provide regulated basic service or emergency service; and

Requires wholesale carriers to incrementally adjust their rates for access over a period of time until their intrastate rates match their interstate rates as filed with the federal communications commission. Assigned to the Business, Labor, & Technology Committee; the bill is scheduled for committee review on Monday, May 2 at 1:30p.m.

Since this summary, the Senate Committee on Business, Labor and Technology postponed the bill indefinitely.

Summaries of other featured bills can be found here.

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