Welcome to the latest edition of Arent Fox’s This Week in Telecom, our weekly newsletter designed to keep you apprised of recent developments in telecommunications policy, legislation, and litigation. Follow our Telecom Group on Twitter! Click here.

Federal Communications Commission (FCC) Announcements

• The next FCC Open Meeting will be June 17, 2010. Only one item is on the agenda, a Notice of Inquiry regarding the basis of the Commission’s authority to impose Open Internet rules on broadband Internet services, and particularly whether those services should be classified as “telecommunications services.” The NOI also seeks comment on the “Third Way” approach announced recently by Chairman Julius Genachowski that would apply six provisions of Title II to broadband Internet transmission services. To view the tentative agenda, click here.

• The FCC has set the comment cycle for the Qwest-CenturyTel merger. Docket No. WCB 10-110. Initial Comments are due July 12, 2010, and Reply Comments are due July 25, 2010. To view the Public Notice, click here. The FCC already has adopted a Protective Order for the proceeding which may be viewed here. For further information or for help in filing comments, please contact Ross Buntrock, Jon Canis, or Michael Hazzard (contact information below).

• The FCC will hold a public forum on the NBC Universal-Comcast merger July 13, 2010, from 1:00 to 8:00 p.m. Central at Northwestern University Law School. For more information, click here.

Federal Trade Commission (FTC) Developments

• The FTC again has pushed back its enforcement deadline for the Red Flag Rules. It now plans to commence enforcement of the Rules on January 1, 2011. The Red Flag Rules are identity theft prevention rules which require companies that invoice for goods or services (including telecommunications companies) to implement programs designed to detect and prevent identity theft. The FTC noted in a statement that the delay was prompted by requests from “several members of Congress” who are drafting legislation to limit the scope of the Red Flag Rules which were originally intended to go into effect November 1, 2008. The FTC’s statement on the extension can be found here. Please contact Ross Buntrock, Stephanie Joyce, or Jeffrey Rummel (contact information below) for information or assistance with compliance.

Developments in Intercarrier Compensation

• On June 3, 2010, the California Public Utilities Commission voted to dismiss, without prejudice, a petition filed by North County Communications Corp. to establish rates for the termination of intraMTA commercial mobile radio service (CMRS) traffic. North County’s petition was opposed by several wireless carriers, including MetroPCS, Sprint, Verizon, and AT&T, which argued that the DC Circuit is currently reviewing the FCC order rejecting North County’s request for the setting of a reasonable rate for the traffic. Adopting the wireless carriers’ argument in part, the CPUC ruled that it would be premature to address North County’s petition at this time. It stated that “[f]ollowing a decision by the DC Circuit and a commitment by the FCC to use the rate determined reasonable by this commission, North County Communications Corp. may reapply for resolution of this matter.” Docket No. 10-01-003.

Please contact Ross Buntrock, Jon Canis, Michael Hazzard or Stephanie Joyce (contact information below) for further information regarding intercarrier compensation matters.

Compliance Notes

• The annual reporting period for competitive local exchange carriers (CLECs) and interexchange carriers (IXCs) operating in Texas runs from June 1, 2010 to June 30, 2010. Carriers are required to file online through the Public Utility Commission of Texas Web site. The login to make the filing for CLECs can be found here. The login to make the filing for IXCs can be found here.

• The Wireline Competition Bureau (WCB) has announced the proposed North American Numbering Plan (NANP) Administration contribution factor and estimated fund size requirement for the fiscal year of July 1, 2010 through June 30, 2011. (DA 10-924, CC 92-237.) The NANP Administration fund is used to administer numbering resources, and is funded through contributions from the United States, Canada and the Caribbean. The proposed US contribution is approximately $5.5 million, which results in a factor amount of 0.0000181 per assessable dollar to meet the estimated fund size requirement. If the FCC does not act on this proposed NANP Administration funding by today, June 7, the proposed fund size and factor shall be deemed approved by the FCC and go into effect. To view the Public Notice, click here.

Please contact Ross Buntrock, Jon Canis, Michael Hazzard or Stephanie Joyce (contact information below) for further information regarding compliance matters.

Stimulus This Week

• On June 2, 2010, the Rural Utilities Service (RUS) released an updated version of its Directory that lists the applications received for funding in the second round of the Broadband Initiatives Program (BIP). The directory also includes a listing of organizations that filed Public Notice Responses to the applications received in the second round. The directory may be found here.

• RUS has extended the deadline for applications for funding of Satellite, Rural Library Broadband, and Technical Assistance projects under the BIP to June 8, 2010. RUS has also announced that the Help Desk will have extended support hours to assist applicants on June 8 from 7 AM until 9 PM EDT. Filings must be postmarked by that date. A copy of the notice may be found here. The application may be found here.

Please contact Ross Buntrock, Jon Canis, Alan Fishel or Jeffrey Rummel (contact information below) for further information regarding stimulus funding.

Broadband News

• On June 1, 2010, the FCC released survey results showing that 4 out of 5 Americans do not know the broadband speed they are getting from their service provider. However, 91% of those surveyed said they were happy with the speed they were getting, either responding they were “very” or “somewhat” satisfied. A summary of the survey results are available here.

• The FCC has an initiative aimed toward achieving better measurement of actual broadband speeds. It is a program that seeks 10,000 volunteers to install hardware on their home computers to measure their broadband speed. As previously announced in April, the FCC is partnering with SamKnows in this effort. The FCC is now ready to set up the volunteers to begin measuring broadband speeds. The Public Notice asking for comment on the test plan was released in April 2010 and can be found here. The FCC also released a consumer fact sheet on testing home broadband speeds, available here.

• On June 1, 2010, the FCC released a Public Notice seeking comment on whether and how to pursue a similar measurement program for mobile broadband services. CG Docket No. 09-158, CC Docket No. 98-170, WC Docket No. 04-36. The FCC seeks comment on possible metrics for measuring mobile broadband and methods to gather the information. Comments are due July 1, 2010, and the Public Notice may be found here.

• On June 2, 2010, the FCC announced it is seeking applications for membership on the FCC-Native Nations Broadband Task Force. The Task Force is intended to assist the FCC in increasing adoption and availability of broadband on tribal lands. The Task Force will be comprised of senior FCC staff and elected leaders from federally recognized Native American governments or governmental entities. Members must commit to a two-year term. More information on applying to serve on the Task Force can be found here.

Please contact Ross Buntrock, Alan Fishel, Michael Hazzard, or Jeffrey Rummel (contact information below) for further information regarding broadband news.

Telecom Privacy News

• House Judiciary Committee Chairman John Conyers, Jr., D-Mich., recently sent letters to Facebook, Inc. and Google, Inc. in connection with recent reports of privacy-related issues involving the two companies. Concerns have arisen that Facebook has provided third parties with access to personal information about its users, even if the users thought they were limiting such access to their own group of friends. Although Facebook has recently announced new privacy controls for its users, Conyers requested that the company explain with whom and under what circumstances personal information was shared, and how the new policies will restrict access to such information. The privacy concerns relating to Google, Inc. involve the company’s use of “Street View” cars that collect private content sent over open wireless networks while mapping the locations of those access points. Several lawsuits have popped up in recent weeks claiming that both companies have violated end user contracts and privacy rights as a result of their practices. The letter to Facebook is available here. The letter to Google is available here.

• As many as 25,572 Social Security numbers once stored on Penn State computer systems may have been exposed during security breaches in recent weeks, the university recently reported. Penn State issued a statement saying that it has no evidence that any unauthorized people have accessed the Social Security numbers which appear to belong to alumni. All of the affected individuals have received or will receive notices from Penn State, encouraging them to be vigilant in monitoring their personal data and to prevent identity theft.

In the Courts

• On May 28, 2010, Chief Judge Conrad of the federal district court in Charlotte, North Carolina dismissed a lawsuit brought by billing agency CGM, LLC alleging that BellSouth’s promotional policies for CLEC wholesale resellers violates section 251(c) of the Telecommunications Act of 1996. The court dismissed CGM’s complaint on standing grounds, finding that, because CGM is only a billing agent and not a CLEC, it has no legally protectable interest for which the court could provide a remedy. As the court explained, “CGM admits that it is neither a CLEC nor an ILEC, the two types of parties subject to the framework of the 1996 Act. Rather, CGM is a billing agent for numerous CLECs. CGM further admits it is not party to an interconnection agreement (‘ICA’). CGM thus concedes … that it does not have standing under 47 U.S.C. § 252(e)(6) to assert a claim for a violation of § 251(c)(4).” The court rejected the argument that CGM has standing under section 401(b) of the Communications Act, finding that the specific, later-enacted provisions of section 251 control the general, antecedent rule from the Communications Act. Finally, the court also denied CGM the right to add the underlying CLECs to the lawsuit to satisfy the standing requirement: “These purported CLEC customers did not assert this cause of action and were not joined as plaintiffs, and CGM has been the sole plaintiff in this lawsuit asserting claims for its own purported injury. The Court will not at this stage allow CGM to recraft its claims into what would amount to a completely new lawsuit.” CGM, LLC v. BellSouth Telecomms., Inc. et al., Case No. 3:09-cv-00377-RJC-DCK (W.D.N.C.).

• On May 26, 2010, the Ninth Circuit Court of Appeals largely affirmed the dismissal of a class action suit complaining of the allegedly “severely degraded” wireless service that AT&T customers received following the merger between AT&T and Cingular. The court of appeals did, however, remand the case to the California district court to resolve the breach-of-contract claim. The court reasoned that plaintiff’s fraud and unfair competition claims that challenged the reasonableness of a particular rate or market entry were preempted by federal law, but that the state law contract claim was not preempted. Shroyer v. New Cingular Wireless Servs., Inc., et. al, Case No. 08-55028 (9th Cir.).

Legislative Outlook

• The House Judiciary Committee will hold a field hearing on the proposed NBC Universal-Comcast merger today, June 7, 2010, at 9:00 am Pacific in Los Angeles. For more information, click here.

• The House Communications Subcommittee will hold a hearing on HR 3101, The Twenty-First Century Communications And Video Accessibility Act Of 2009, on June 10, 2010, at 10:00 am Eastern in 2123 Rayburn House Office Building. Introduced by Rep. Ed Markey, D-Mass., the bill is focused on ensuring useable Internet access for those with hearing disabilities. It includes a requirement that providers of interconnected VoIP service must contribute to the Telecommunications Relay Services fund. For more information, click here.

Upcoming Events

• The Federal Communications Bar Association will hold its Spring Reception on June 17, 2010, from 6:00 to 8:00 pm Eastern at the Washington Hilton. For more information or to register, click here.

• Telecom Group Partners Jon Canis, along with Ross Buntrock, Michael Hazzard, and Stephanie Joyce will be presenting at the COMPTEL Plus 2010 Fall Convention + Expo being held September 12-15, 2010, in Dallas, TX. For more information or to register, click here.

For further information, please contact any of our attorneys in the Arent Fox Telecommunications Group, including:

Ross A. Buntrock
buntrock.ross@arentfox.com
202.775.5734

Jonathan E. Canis
canis.jonathan@arentfox.com
202.775.5738

Alan G. Fishel
fishel.alan@arentfox.com
202.857.6450

Michael B. Hazzard
hazzard.michael@arentfox.com
202.857.6029

Stephanie A. Joyce
joyce.stephanie@arentfox.com
202.857.6081

Jeffrey E. Rummel
rummel.jeffrey@arentfox.com
202.715.8479