An NCSL newsletter from the Communications, Technology and
Interstate Commerce Committee

Contents

COMMITTEE UPDATE

Communications convergence will be a major focus of Committee attention in 2005.  The Communications, Technology and Interstate Commerce Committee is planning a major program to explain new and converging technologies and explore their policy ramifications at the Spring Forum, April 14 - 16^th in Washington, DC.  Also at the spring meeting, the Committee plans to meet with officials at the Federal Communications Commission and hold programs on data mining and streamlined sales tax.  See the Committee web page for updates to the agenda. 

The promise of delivering broadband Internet service almost anywhere that radio waves can travel is a reality in several American cities.

TELECOMMUNICATIONS

The promise of delivering broadband Internet service almost anywhere that radio waves can travel is a reality in several American cities.  WiFi, short for wireless fidelity, uses antennas to broadcast signals from broadband Internet connections.  This service can be found in numerous cities, state capitols and major airports.  According to some industry analysts, the number of WiFi hot spots is expected to grow from the current 22,000 to about 65,000 by the year 2008.  California tops the state list with 3,848 WiFi hot spots and New York is second with 1,546. 

Most public WiFi hot spots require a paid subscription.  The subscriptions for access can be hourly, daily or monthly.  Commercial businesses like McDonald’s and Starbucks are also offering the service.  In late January, California announced a deal with SBC Communications to provide wireless Internet access points in 85 state parks.

Philadelphia city planners  contemplate turning 135 square miles of the city into the world’s largest wireless Internet hot spot.  In September 2004, Philadelphia Mayor John F. Street announced the appointment of the Wireless Philadelphia Executive Committee.  The Committee’s mission is to promote citywide connectivity.  The WiFi infrastructure promises to benefit both people who do not have access to the Internet and students who do not live on campuses.  And, in 2004, Cleveland, Ohio added 4,000 wireless transmitters in three city districts which are free and available to the public. 

- Submitted by Bob Boerner

State legislatures have long been ahead of the curve on adopting wireless. 

Looking for a new wireless Internet access point, or "hot spot," to surf the Web or check e-mail while keeping up with legislative events?  State capitols are the new hot spots, joining the more highly publicized Starbucks, Kinkos, and various high-tech airports.  Thirteen states now offer wireless Internet access in the capitol for anyone who has a laptop equipped for wireless.  Private citizens, journalists, and lobbyists, while waiting for hearings or meetings with legislators, can track bill status and committee updates on legislative Web sites, and still keep in touch with business and family matters by e-mail.

State legislatures have long been ahead of the curve on adopting wireless.  The historic nature of capitol buildings makes them incompatible with the wires and cables necessary to network computers, so wireless technology has been the perfect solution for many states.  Thirty-one states have wireless networks that allow legislators and legislative staff to access information on their laptops in the chamber or in offices.  But public demand for wireless Web access has now prompted many states to extend that wireless access throughout the capitol to the public.

Arizona in 2003 launched POWER (Public Online Wireless Electronic Resource) through a  public-private partnership with Intel and Cox Communications and with services provided by hotZona, a local ISP.  The Arizona POWER WiFi network is one of the largest free hot spots in Arizona.  Senator Dean Martin and Representative Robert Robsen spearheaded the project, and the three companies donated products, services and support for the network.  Other states providing public Wireless Internet access at the capitol are Iowa, Kentucky, Maine, Nevada, North Dakota, South Carolina, Texas, Utah, Virginia, Vermont, Washington, and West Virginia.

- Submitted by Pam Greenberg

High-speed broadband Internet access can help communities attract business and improve economic conditions.

High-speed broadband Internet access can help communities attract business and improve economic conditions.  Several states—including California, Maryland, North Carolina and Oklahoma—have recently created authorities or task forces to develop and promote Internet access throughout underrepresented areas of the states.  And, Mississippi lawmakers (S.B. 2979) approved a tax package that provides incentives to telecommunications enterprises to invest in broadband technology infrastructure. 

At least eight states—including Idaho, Indiana, Iowa, Kansas, Maine, Mississippi, Oregon and Vermont—have introduced a variety of broadband measures in 2005.  Idaho H.B. 28 revises the investment credit for broadband equipment.  Indiana H.B. 1518 prohibits the Indiana Utility Regulatory Commission from exercising jurisdiction over broadband services.  Maine L.R. 675 encourages economic development through the increased use of broadband access.  Mississippi H.B. 1239 exempts broadband services from the regulation of the Mississippi Public Service Commission.  And, Oregon S.B. 14 permits the funds from the universal service surcharge to be used so that broadband services are available at reasonable and affordable rates. 

- Submitted by Bob Boerner

There has been a lot of talk over the last six months regarding how and when Congress will act to reform the 1996 Telecommunications Act. 

There has been a lot of talk over the last six months regarding how and when Congress will act to reform the 1996 Telecommunications Act. When originally passed, the 1996 Act required local phone providers to open their networks to competitors in exchange for the opportunity to offer long distance service. The Act also established clear delineations between wire line, cable, broadcast and wireless services—delineations that are nearly indistinguishable in today’s competitive marketplace.  In 1996 it was difficult to imagine the rapid growth of the Internet and the deployment of new services like voice over Internet protocol (VoIP). 

The four regional Bells are urging lawmakers on Capitol Hill for new legislation, saying the current rules governing local phone service just don’t apply in a competitive marketplace. Currently, their network elements must be unbundled and available to competitive local exchange carriers at fixed prices. The baby Bells are also required to be the “carrier of last resort” for phone service in rural areas, known as Universal Service. Any rewrite might include a thorough review of the Universal Service program. The Universal Service Fund’s contribution factor, the percentage of end-user interstate and international service revenue companies that must pay into the fund, recently jumped to 10 percent for the first time. As consumers migrate from wire line service, the base shrinks and the contribution factor increases, causing traditional phone companies and their consumers to fill the gap.

Meanwhile, the cable and wireless industries seem less interested in a wholesale rollback of today’s telecom rules. The cable industry has grown rapidly over the last decade. Cable-giant Comcast recently announced the biggest push yet by the cable industry to enter the VoIP market, with a plan to market its VoIP service to some 40 million subscribers. Furthermore, cable does not have to share its networks with competitors as traditional wireline does, creating a competitive advantage. Cable representatives argue that any new Act will take years to accomplish and create disruption in the market. They support a more piecemeal approach to any new federal legislation. 

The wireless industry has grown rapidly as well. It is now attempting to expand consumer interest in a number of new technologies that provide high speed wireless service such as WiMax, OFDM and UMTS/HSPDA.  However, the industry says it is suffering from what it perceives as discriminatory taxation at the state and local level.

Two high-ranking members of the U.S. House Energy and Commerce Committee recently indicated they hope to secure House approval for a rewrite by July or August. Prior to doing so, they will host a series of three to four hearings on Internet protocol-enabled services to prepare members for the road ahead. Some members of the Senate Commerce Committee have also advocated for action this year. However, there is growing debate as to whether reform will actually take place this year at all. Some telecom analysts predict action to happen closer to 2006. The Bush administration has suggested it might introduce a host of new initiatives, including a Social Security reform measure, a comprehensive federal tax reform plan, and a bill limiting damages on medical malpractice cases—all major pieces of legislation which Congress must consider alongside any telecom rewrite. Pushing back action on the Act by a year would also more easily coincide with the President’s long-term goal of establishing universal broadband service by 2007. Even if new legislation is completed this year, the FCC would need to consider regulations that could stall full implementation for several more years. 

- Submitted by Nick Steidel

State lawmakers have passed a variety of state laws that place additional restrictions on unsolicited faxes. 

The Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227) makes it a violation of federal law for a person to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement (a "junk fax") to a telephone facsimile machine.  The Act gives private citizens a right to sue to: (1) enjoin future transmissions, (2) recover the greater of actual monetary damages or $500 in damages for each junk fax, or (3) an injunction plus damages.  If the court finds that the sender willfully or knowingly violated the Act, the court may increase the award up to three times the amount of damages.

Not every fax is a junk fax that violates the federal law.  To be subject to the Act, a fax must be an "unsolicited advertisement."  An ''unsolicited advertisement'' is any material advertising the commercial availability or quality of any property, goods, or services that is transmitted to any person without that person's prior express invitation or permission.

The Act, and the rules of the Federal Trade Commission, require that any message sent to a fax machine must clearly mark on the first page or on each page of the message:

·        the date and time the transmission is sent;

·        the identity of the sender; and

·        the telephone number of the sender or of the sending fax machine.

All fax machines manufactured on or after December 20, 1992 and all facsimile modem boards manufactured on or after December 13, 1995 must have the capability to clearly mark such identifying information on the first page or on each page of the transmission.

Effective July 1, 2005, if the fax is an unsolicited advertisement, the sender also must obtain the recipient's prior written, signed permission to receive such faxes from a specific sender to a specific fax number. The current requirements (also known as opt-in requirements)—providing that an established business relationship constitutes prior permission—will no longer apply.

State lawmakers have passed a variety of state laws that place additional restrictions on unsolicited faxes.  For example, Arizona law (A.R.S. § 44-1482) requires that unsolicited commercial fax advertisements include the name, address, fax number or toll free or local contact telephone number of the vendor.  And, both Minnesota and Tennessee specify the font size required to be used in the text of unsolicited faxes.

 - Submitted by Bob Boerner

Companies that provide e-mail security and anti-spam services or software now estimate that two-thirds to three-quarters of all email is spam.

INTERNET & INFORMATION TECHNOLOGY

 Companies that provide e-mail security and anti-spam services or software now estimate that two-thirds to three-quarters of all email is spam.  Scams and fraud now account for 24 percent of the spam sent, making it the fastest growing type of spam.  Given these statistics, it is not surprising that the effectiveness of anti-spam laws, including the federal CAN-SPAM Act of 2003, has been questioned.  However, state legislatures continue to look at ways to combat the problem, such as enacting felony penalties, providing for civil penalties, and setting up child protection e-mail registries.

The federal act prohibits fraudulent and deceptive commercial e-mail messages and requires senders to include information allowing recipients to opt-out of receiving further messages.  The law preempts any state law that "expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto."  Enforcement of the federal act lies with the Federal Trade Commission and state attorneys general. 

Since the federal act was passed, at least six states have enacted anti-spam laws.  California and Florida enacted legislation bringing anti-spam laws into conformity with the federal law.  The California law also authorizes the state's attorney general, an e-mail service provider, or the recipient of spam transmitted in violation of provisions to bring an action to recover damages from $1,000 per message up to $1,000,000 per incident. 

In 2003, Virginia passed anti-spam legislation establishing felony penalties for the most egregious spammers, and in December 2003, the Virginia Attorney General, working with AOL, successfully prosecuted a North Carolina spammer.  The man, said to be among the world’s top 10 spammers, now faces up to nine years' imprisonment. 

Maryland enacted new anti-spam legislation in 2004 that added tough new criminal penalties to the state's previous anti-spam law.  And while a December 2004 state court decision found the law unconstitutional when applied to an out-of-state spammer who sent e-mail to an out of state recipient, the ruling is not expected to apply to future cases involving Maryland residents.  The Ohio legislature also passed anti-spam legislation that provides for felony prosecutions in 2004; the bill is expected to be signed by the governor. 

Michigan and Utah enacted legislation that would allow parents to register their minor child’s e-mail address to protect children from pornography and other inappropriate material sent electronically.  The registries go into effect in July 2005. 

While there is no single solution to the spam problem, a multi-faceted approach—legislation, consumer education, industry or Internet Service Provider lawsuits, and technological approaches—holds the most promise for this difficult problem. 

- Submitted by Pam Greenberg

Cyber rape, as defined by the legislation, occurs when somebody electronically attempts to lure or entice a person with the purpose to commit a criminal offense.

New Jersey Prohibits “Cyber Rape”

In January, New Jersey Governor Richard Codey signed A.B.2864, which would outlaw “cyber rape.” As defined in the legislation, cyber rape occurs when somebody electronically attempts to lure or entice a person with the intent to commit a criminal offense.  The law was developed as a result of  an incident in which a woman discovered one of her in-laws used an Internet chat room to direct a stranger to her house to rape her.  After realizing that fitting a computer crime into a standard sexual assault law was difficult, Senator Paul Sarlo sponsored the law to close this loophole in the law.  New Jersey, like 34 other states, has a law that criminalizes luring children  via computers with the purpose of committing crime, but not one for adults. The new law affects not only to those who use the Internet to lure people to commit sexual crimes, but other assault crimes as well.

- Submitted by Janna Goodwin