Customs Duty

Staff is widely expected to continue working on part of a revised FCC approach on ISP privacy, even as the House moves toward a likely vote on a Congressional Review Act resolution of disapproval, joining the Senate, which acted last week (see 1703270064). FCC Chairman Ajit Pai was mostly noncommittal last week in response to questions on the topic following commissioners’ meeting (see 1703230070). The FCC approved privacy rules in October, under then-Chairman Tom Wheeler, over dissents by Pai and Commissioner Mike O’Rielly (see 1610270036). Immediately after the November election of President Donald Trump, ISP privacy rules were seen as a top target of Republicans once Trump took office (see 1611090034) and that has happened in Congress and at the FCC. The commission didn't comment Monday.

A federal appeals court ruled that Tennessee 911 programs have the right to sue AT&T over 911 fee remittance. The 911 programs (the Districts) alleged AT&T (BellSouth) covertly omitted fees mandated by Tennessee law to reduce costs, offer lower prices and get more customers. In an opinion Friday, the 6th U.S. Circuit Court of Appeals reversed a lower court’s decision to dismiss the local 911 programs’ lawsuit and judge in AT&T’s favor on whether the company violated the Tennessee False Claims Act (TFCA). U.S. District Court in Chattanooga said the 911 programs lacked private right of action under the state law, but the appeals court disagreed. The programs’ “funding is entirely dependent on the service suppliers’ proper billing, collecting, and remitting of the 911 charges; hence, the Districts’ continued viability -- indeed, their very existence -- necessarily depends on BellSouth’s proper compliance with the 911 Law,” wrote Judge Alice Batchelder for the 6th Circuit. “It is therefore fully consistent with the underlying purpose that the Districts have a means of compelling BellSouth to properly bill, collect, and remit the 911 charges in accordance with the 911 Law. Moreover, because the 911 Law contains no other regulatory system, governmental overseer, criminal or administrative enforcement provisions, or express penalties for violation, the Districts’ most expedient and effective means of compelling the phone companies is a private right of action.” The 6th Circuit said the programs supported their claim that AT&T made misrepresentations, and disagreed with the lower court that they also had to prove those falsehoods were made in bad faith. Because it said the lower court asked the wrong question, the 6th Circuit remanded the matter for further proceedings. Judge Karen Moore concurred that the 911 programs had a private right of action, but said she would have also reversed the lower court’s opinion dismissing the 911 programs’ claim that AT&T owes them a fiduciary duty. The district court found no fiduciary relationship between the programs and company, but Moore disagreed. “Although the 911 Law does not expressly state that telecommunications providers like BellSouth are agents or fiduciaries of the Districts, agency can be implied under Tennessee law,” she said. The programs presented evidence “from which a reasonable juror could conclude” that the telco didn’t make full disclosure of facts that would benefit the programs, she said. Judge Deborah Cook joined the majority opinion. The company didn’t comment.

A federal court threw out NARUC's case against an FCC VoIP numbering order after finding the state regulatory group lacked standing under the Constitution. "Because NARUC has failed to demonstrate an injury-in-fact, and thus failed to establish Article III standing to challenge the Order, the court lacks jurisdiction and the petition for review is dismissed," said a per curium order Friday of a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit in NARUC v. FCC, No. 15-1497. At oral argument Feb. 8, Chief Judge Merrick Garland and Judge Judith Rogers questioned if NARUC members were harmed (see 1702080021).

World Trade Organization members should consider a digital trade facilitation agenda during the 11th WTO Ministerial Conference in December and make permanent the current prohibition on customs duties on e-commerce transactions, said the International Chamber of Commerce in a Wednesday report. A digital trade facilitation agenda could help developing and least-developed countries lacking resources and technical constraints compete, ICC said in a news release: Global initiatives can help reduce “the temptation of introducing new protectionism.”

About 17,000 AT&T landline workers in California and Nevada walked off​ the job Wednesday after contract negotiations apparently broke down. The company showed “disrespect to the bargaining process by changing the work assignments of workers without bargaining as required by federal law,” Communications Workers of America said in a news release. “AT&T reneged on an agreement to resolve the dispute without any explanation.” Striking workers picketed call centers in California and Nevada, and CWA filed an unfair labor allegation with the National Labor Relations Board, the union said. Workers are protesting a recent AT&T practice of shifting the duties of the higher-paid systems technician to the lower-paid premises technician without appropriate compensation, said Rob Pais, an AT&T technician for 18 years and a local CWA leader. Earlier this week, workers in Escondido, California, went on a grievance strike about that issue and now all 17,000 workers in California and Nevada joined in support, Pais said in an interview Wednesday. “My family depends on this job,” he said. “We’re on strike because the company is not bargaining with us in good faith on our contract.” Pais said he long had good wages, but the company moved in “the wrong direction.” Workers are prepared to strike “until we get a fair contract, no matter what it takes,” he said. The telco is in talks with the union to get employees back to work soon, a said. “A walkout is not in anybody’s best interest, and it’s unfortunate that the union chose to do that.” AT&T is “very prepared to continue serving customers,” he said. “We’re a customer service company and we plan for all contingencies, whether related to weather, natural disasters, work stoppages or any other factors.” Workers voted in December to authorize a strike, and nearly 80 elected officials supported the union workers last week (see 1703140034). Last month, AT&T wireless workers threatened a separate strike in 36 states (see 1702090054).

Fuel for satellites used after launch into space is eligible for customs duty refunds, called drawback, because the launched satellite is considered to be exported, Customs and Border Protection said in a recently released ruling. Drawback is allowed for goods imported into the U.S. that are unused or quickly exported. Thales Alenia Space asked CBP about drawback eligibility for satellite propellant, which "is solely utilized to power a satellite’s thruster system after the satellite has been launched into orbit and activated." CBP considers satellites and components "exported for drawback purposes despite the satellite’s exportation destination not being within a foreign country," said the agency. "Due to the commercialized technology and business conditions of communications satellite manufacture and launch, the definition of exportation includes satellites that are launched into permanent orbit from the territory of the United States by private entities." Thales also sought input on what documentation is necessary to prove export through launch. "Submission of multiple documents corroborating the fact and date of exportation, describing the merchandise, and identifying the ultimate purchaser of the satellite may serve as sufficient proof," the agency said.

FCC inmate calling service (ICS) reporting and disclosure requirements were approved by the Office of Management and Budget Jan. 9 for three years, said a notice in Wednesday's Federal Register. It said the commission ordered providers to file annual reports and certifications on their ICS rates and minutes of use by facility, ancillary service charges and any site commission payments to correctional authorities, and to inform customers of their rates and charges. OMB also approved a one-time FCC requirement that ICS providers submit cost and demand data on their interstate, international and intrastate services, the notice said. Responses were due Wednesday. The commission says it needs all the data to help ensure that ICS rates and fees are "just and reasonable" as required by law. The FCC and providers Securus Technologies and Global Tel*Link didn't comment on the timing of the FR notice and the response deadline.

With the broadcast TV fees and regional sports fees Comcast charges subscribers being disclosed in advertisements, pop-ups and hyperlinks during the ordering process, confirmation emails, and rate cards and itemized bills sent to subscribers, no one can credibly claim they're hidden, it said in a motion to dismiss (in Pacer) filed Tuesday in U.S. District Court in San Francisco. It responded to a second amended complaint (in Pacer) from Comcast subscribers in seven states filed last week that said those add-on fees earn Comcast more than $1 billion annually and "are a deceptive way ... to double-charge for channels that Comcast has already promised are included with the basic service price." The lawsuit -- with lead named plaintiff Dan Adkins -- alleges the add-on fees Comcast charges lets it falsely advertise a flat monthly rate that's lower than it actually charges, even though programming costs are a standard expense. The plaintiffs also cite customer conversations with telesales agents and Comcast retail store staff telling prospective customers the only additional charges are taxes and government fees. Comcast said the illegitimacy of the suit is illustrated by plaintiff's counsel taking two years to recruit plaintiffs, coach them into opting out of arbitration, and choreographing conversations "in order to elicit sound bites" for the complaint. It said the California court lacks jurisdiction since Comcast is based in Philadelphia, its subsidiaries provide Xfinity services to the named defendants in California, and other named defendants live in other states. It argued plaintiffs haven't shown any breach of contract evidence with parent company Comcast since their subscriber contracts were with subsidiary Comcast Cable Communications, nor have they shown breach of implied duty since the fees charged are addressed and permitted by the parties' contracts.

The vast majority of the nearly 8,200 individuals who posted comments through midday Tuesday in the Department of Transportation’s docket on the use of mobile devices for voice calls on commercial airlines urged the agency to permanently ban such calls while in-flight. DOT asked in a December NPRM (docket DOT-OST-2014-0002) whether airlines should have to disclose their policy on airborne voice calls or whether the agency should prohibit such calls entirely on commercial aircraft (see 1612090056).

The FCC Wireline Bureau granted "two limited waivers" of E-rate compliance duties for "certain category of service classification standards" under the 2017 funding year eligible service list. "We waive the obligation to apply the FY 2017 ESL classification standards to connections provided under pre-existing multi-year contracts if doing so would change the eligibility of the connections from Category Two to Category One," said a bureau order Wednesday in docket 13-184. Category One services support broadband connectivity to schools and libraries, including wide area network systems; Category Two services support broadband within schools and libraries, including local area network systems. "Second, for funding year 2017 applications, we waive the requirement to classify connections between different schools and libraries sharing a single building as Category One services. Pursuant to this waiver, applicants may elect to seek Category Two funding for customer-owned or -controlled inside wiring that connects different schools and libraries within the same building," the order said.