The FCC late Thurs. announced its VoIP proceeding would be on the agenda for its Feb. 12 open meeting, along with a petition by Pulver.com for a ruling that its VoIP offering wasn’t a telecom service. The Pulver item was surprising because the FBI had expressed concern about the FCC’s acting on VoIP classification issues before handling a related CALEA issue (CD Feb 5 p4). The more general VoIP notice of proposed rulemaking is expected to ask for comment on several questions about how VoIP should be treated, but probably won’t make any conclusions.

Siding with NTCA, the Small Business Administration (SBA) Office of Advocacy told the FCC it agreed with concerns raised by small wireline carriers about a further notice on wireless local number portability (LNP). Some wireline companies urged the FCC in comments last month not to impose costly technical solutions to ease wireless-to-wireline number porting in cases in which there was a mismatch between the rate center associated with a wireless number and the one in which a wireline operator would serve the customer. NTCA in particular criticized the notice as procedurally flawed, saying the questions it raised should have been covered by a notice of inquiry. In a filing at the FCC, the Office of Advocacy, an independent arm of SBA, agreed, saying it had concerns about the vagueness of the notice and the extent to which its initial regulatory flexibility analysis (IRFA) didn’t comply with the Regulatory Flexibility Act. The office “agrees with comments filed on behalf of wireline carriers, including small, rural wireline carriers in particular, that the changes suggested by the FCC’s further notice would impose significant economic burdens,” it said. It recommended that the Commission convert the further notice to an inquiry and not move ahead on those issues until it published a proposed rule. The proposal should have “specific regulatory requirements and a meaningful IRFA with consideration and analysis of significant alternatives that minimize the economic impact on small wireline carriers,” the filing said. The office said the FCC’s further notice didn’t lay out specific compliance requirements, recordkeeping requirements or cost information for small businesses. While the further notice contains an IRFA that seeks comment on 2 options for facilitating wireless-to-wireline porting, “it does not address how these options will minimize any significant economic impact on small businesses,” the office said. The filing said it agreed with comments to the Commission that requiring wireless-to-wireline number portability where the rate centers did not match would impose significant burdens on small wireline carriers.”

House and Senate Committees are competing for witnesses for next week’s simultaneous hearings Feb. 11 on broadcast content. The House Telecom Subcommittee, which will hold its 2nd hearing of the year on indecency, appears close to getting witnesses who relate more directly to the Janet Jackson flap. House sources told us the Subcommittee was close to getting Viacom Pres. Mel Karmazin and NFL Comr. Paul Tagliabue. All 5 FCC commissioners are expected to testify at both hearings, sources said.

Janet Jackson’s breast continued to be a hot topic on the FCC 8th floor Wed., but it was unclear who should be held most responsible and when the FCC will act, sources there said. FCC Chmn. Powell’s probe into allegations CBS aired indecent content during the Super Bowl halftime show could result in fines against CBS’s 20 owned and operated stations and the more than 200 affiliate stations that aired the broadcast. If the Commission levies the maximum $27,500 fine, CBS affiliates would have to pay $5.5 million, about the cost of 2 Super Bowl ads, while CBS, through its owned stations, would be fined much less. “If I was an affiliate I would demand that CBS pay for it,” said Lara McHanney of the Parents TV Council. The commissioners haven’t been given any time frame for action, a source said. CBS has several weeks to respond to Powell’s letter of inquiry. The probe could take several months, a sources speculated. Meanwhile, Consumers Union, in a letter to Congress, asked for reconsideration of FCC’s rules that relax limits on media ownership. CU also criticized the FCC’s inability to fine indecent content on cable and satellite TV. “In fact, if MTV, and not CBS, had actually aired the half-time show, the FCC would probably have done nothing,” the letter said. Meanwhile, the House Telecom Subcommittee announced its 2nd hearing on broadcast indecency this year on HR-3717, Subcommittee Chmn. Upton’s (R-Mich.) bill that would raise FCC fines for indecency, on Feb. 11, 9:30 a.m., Rm. 2123, Rayburn Bldg. Witnesses weren’t announced.

Although Rep. Barton (R-Tex.) is mainly an energy expert, he could help lead the next overhaul of telecom regulations if he takes over the House Commerce Committee Feb. 16. Committee Chmn. Tauzin (R-La.) resigned Tues., effective that day, and said he wouldn’t seek reelection. Barton is widely regarded as front-runner for chairman, and he acknowledged Wed. he was seeking the job. He has a limited track record on communications, but sources -- and his own comments -- indicate he would be likely to push for comprehensive telecom reform in 2005.

The FCC reached agreement with an intergovernmental tribal group Tues. on best practices for communications tower siting. The Commission called the pact the first of its kind. It also created a database for a voluntary system that Chmn. Powell said would provide an “early notification” of tower construction that might affect historic properties or tribal religious sites. When final, the best practices will provide guidance to the FCC, tribes and the industry, he said.

The Direct Mktg. Assn. (DMA) and Newspaper Assn. of America (NAA) asked the FCC for a declaratory ruling that would get telemarketers off the hook for automated calls to numbers they didn’t know had been ported to cellphones. Their petition last week sought a “wireless safe harbor” from the Telephone Consumer Protection Act (TCPA) ban on autodialed telemarketing calls to wireless phones. DMA last fall raised concerns about how telemarketers could be notified when a wireline number changed to wireless after the Nov. 24 implementation of wireless local number portability in the top 100 markets. DMA and NAA told the FCC it had authority to create a safe harbor “essential in an age of wireline numbers’ being ported to wireless numbers.” The exemption would recognize “the technological steps that industry has taken to avoid placing autodialer calls to wireless numbers while allowing marketers time to suppress wireless numbers that have been ported from wireline numbers” without being penalized under the TCPA. DMA and NAA said the request didn’t cover the kind of “consent” a telemarketer must have obtained to call a landline number that later was ported to a wireless number: “The safe harbor issue arises only if consent has not been obtained.” DMA said that even with access to updated information from NeuStar on which wireline numbers had been ported to wireless, marketers couldn’t update their call lists instantly. “It is inevitable that somewhere between the time a number is ported and the time a marketer can update its calling lists a marketer will place an autodialed telemarketing call to the now-wireless number,” the petition said. “This exposes well- intentioned marketers who are using every method short of manual dialing to avoid calls to wireless numbers to thousands of potential lawsuits, as well as state and federal enforcement.” The groups said the wireless safe harbor could be modeled on the Do Not Call safe harbor provisions of the TCPA. They proposed that if a marketer adhered to procedures similar to that safe harbor -- including subscribing to a wireless suppression service and using a version of the data no more than 30 days old -- the company marketer wouldn’t face TCPA liability for erroneous calls to wireless numbers. “This 30-day time period is much shorter than the 3-month period for downloading updates to the National Do-Not-Call list and is consistent with the maximum time that is permitted to honor a company-specific do not call request,” the petition said.

FCC Chmn. Powell opened an investigation into the Super Bowl half-time show aired on CBS, where singer Janet Jackson’s breast was exposed by musician Justin Timberlake. Powell referred to the incident as a “classless, crass and deplorable stunt” and promised a “thorough and swift” investigation.

A program agreement that would streamline wireless and broadcast tower siting reviews ran into trouble last week when the Advisory Council on Historic Preservation (ACHP) raised concerns about how certain types of sites would be excluded, sources said. FCC and some industry officials said they remained bullish that differences could be worked out relatively quickly. But they said a key unresolved issue was one that had drawn recent Capitol Hill attention: Treatment of sites “potentially” eligible for listing on the National Register of Historic Places.

The FBI has asked the FCC to deal with CALEA concerns before acting on pending broadband proceedings, which could delay the VoIP proposal circulating among commissioners on the agency’s 8th floor, we're told. In a letter sent Jan. 28, the FBI, Dept. of Justice and the Drug Enforcement Administration said they planned to file a joint petition within a few weeks asking the FCC to determine “what broadband services and service providers should be subject to CALEA,” as well as the procedures needed to bring them into compliance. They asked the FCC to complete the current CALEA rulemaking before acting on other broadband proceedings. The FBI had indicated concerns about the difficulty of imposing CALEA’s wiretapping requirements on broadband services such as VoIP.