Arent Fox's This Week in Telecom
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.
Jump to a Topic:
FCC Announcements l The Mobile Market l FTC and Privacy Regulation l Intercarrier Compensation l Compliance Notes l Broadband News l In the Courts l Legislative Outlook l Events
Federal Communications Commission (FCC) Announcements
- The FCC has issued its Quarterly Reports of Informal Consumer Inquiries and Complaints. To view the 2Q10 report, click here. The Q310 report is available here, and the Q410 report is here.
- The next Open Meeting of the FCC will be September 22, 2011, at 10:30 am Eastern. We will publish the Tentative Agenda when it is released. For more information, click here.
- The FCC is seeking nominations for persons to serve on the Open Internet Advisory Group which was created by the Open Internet Order adopted in December 2010. Nominations are due September 1, 2011. For more information, click here.
Please contact Ross Buntrock, Alan Fishel, Michael Hazzard, or Jon Canis (contact information below) for further information.
The Mobile Market
- According to the FCC Quarterly Reports of Informal Consumer Inquiries and Complaints reported above, the number of consumer inquires regarding wireless service during the fourth quarter of 2010 grew by over 450%. The FCC linked this substantial growth to the “bill shock” proceeding, which was initiated during that time. In addition, the number of complaints regarding wireless service grew by 16%, while complaints regarding wireline service decreased by 12% in the same period. Brian Josef, CTIA Director of Regulatory Affairs, has responded to the reports by stating that, “During a period in which the FCC affirmatively sought ‘bill shock’ complaints, it is telling that ‘bill shock’-related complaints totaled just 416, or approximately one per million wireless lines. In fact, ‘bill shock’-related complaints amounted to six-tenths of one percent (0.6%) of wireless-related complaints for the year. With 17 million new wireless additions in 2010, this means that the number of billing and ‘bill shock’-related complaints per subscriber actually decreased during the year.”
- The FTC has taken action suggesting that compliance with the Children’s Online Privacy Protection Act (COPPA) is an area of increased focus and one of which mobile application developers must be aware. The FTC has announced two COPPA-related enforcement actions against online companies, including its first case against a mobile application developer. W3 Innovations, LLC, which does business as Broken Thumbs Apps, settled a lawsuit with the FTC by agreeing to pay $50,000 in fines. Broken Thumbs develops and distributes mobile apps for the iPhone and iPad, including games such as Truth or Dare, Emily’s Dress Up & Shop, and Cootie Catcher. According to the FTC complaint, available here, Broken Thumbs failed to provide a written privacy policy on its website, failed to provide appropriate notice to parents regarding its data collection activities, and failed to obtain verifiable parental consent, all in violation of COPPA. The FTC sought up to $480 million in civil penalties. To view the agency’s statement about the W3 settlement, click here.
For more information about recent FTC actions, you can read an article by Ross Buntrock, a Partner in our Group, available here. - Comments on the FCC Further Notice of Proposed Rulemaking regarding the use of microwave links for wireless backhaul are due October 4, 2011, and Reply Comments are due October 25, 2011. For more information, click here. To view the NPRM, click here.
- Comments on the draft Mobile Medical Applications guidelines from the United States Food and Drug Administration (FDA) are due October 19, 2011. The draft guidelines are available here. Filing instructions are provided in the document.
Please contact Ross Buntrock, Michael Hazzard, or G. David Carter (contact information below) for further information.
Federal Trade Commission (FTC) and Privacy Regulation
- On August 15, 2011, the FTC issued an advisory letter stating that its staff has not recommended challenging the Council of Better Business Bureaus (CBBB) proposed “accountability program”. The program would hold companies engaged in online behavioral advertising accountable for compliance with the “Self-Regulatory Principles for Online Behavioral Advertising”. These principles were released in July 2009 by a coalition of industry associations and “relate to transparency about the information collected and giving consumers the option to control whether and how the information is used.” An agency press release notes that CBBB’s program could benefit consumers “by increasing transparency of, and consumer control over, certain aspects of online behavioral advertising, and there appears to be little or no potential for competitive harm associated with the proposed program.” More information may be found here.
Please contact Ross Buntrock, Alan Fishel, Stephanie Joyce, or Jason Koslosfky (contact information below) for further information.
Developments in Intercarrier Compensation
- On August 15, 2011, several telecommunications carriers, state public utility commissions, and other interested parties filed comments in response to the petition for declaratory ruling filed by tw telecom, inc. with the FCC on June 30, 2011. In its petition, tw seeks a ruling that Section 251(c)(2) of the Telecommunications Act of 1996 entitles it to direct IP-to-IP interconnection with incumbent local exchange carriers for the transmission and routing of facilities-based Voice-over-Internet Protocol (VoIP) services, as well as voice service that originates and terminates in Time Division Multiplexing (TDM) format but is converted to IP in transit, known as “IP-in-the-middle” service. Commenters in support of tw’s petition, including COMPTEL, O1 Communications, Inc., Vaya Telecom, Inc., PAETEC Communications, Google Inc., and Public Knowledge, argued that the FCC already has declared in the National Broadband Plan that transitioning to all-IP networks is in the public interest, and thus facilitating IP interconnection should be a necessary part of this process. Google stated that “the promise of IP networks could be significantly undermined unless the FCC makes clear that the interconnection obligation established by the Act will not be simply left behind in the ongoing transition to all-IP networks. This is especially necessary since it appears that eventually all interconnection arrangements ultimately will be for IP traffic.”
Verizon and AT&T opposed tw’s petition, asserting that VoIP traffic is an “information service”, while the interconnection obligations associated with Section 251(c)(2) are limited to “telecommunications services”. Verizon also asserted that tw’s petition “is not about the right to interconnect, which it unquestionably has today as IP-to-PSTN traffic travels freely across networks under existing interconnection arrangements. [tw’s petition] instead is a request to interconnect with a superior, interconnected IP-based network that does not yet exist and to shift onto ILECs the cost of necessary IP-to-TDM conversions.” The FCC has set a deadline of August 30, 2011 for Reply Comments. WC Docket No. 11-119.
Please contact Ross Buntrock, Jon Canis, Michael Hazzard, Stephanie Joyce, or Adam Bowser (contact information below) for further information regarding intercarrier compensation matters.
Compliance Notes
- The Universal Service contribution factor for the Third Quarter of 2011 is 14.4%. A copy of the notice can be found here.
- Payment of annual FCC regulatory fees is due by 11:59 pm EST on September 14, 2011. To view the Public Notice setting the deadline, click here. To review the payment procedures, click here. To learn about the electronic Fee Filer system, click here.
Please contact Ross Buntrock, Jon Canis, or Michael Hazzard (contact information below) for further information regarding compliance matters.
Broadband News
- On August 15, 2011, President Obama highlighted broadband deployment to rural America during a town hall in Cannon Falls, MN. He stated that he wants 98% coverage across the country for both fixed and mobile broadband, and emphasized that broadband can get a business selling across the country and the world. His remarks are available here.
- On August 13, 2011, Sen. Pat Toomey, R-Penn., criticized the FCC’s Open Internet rules during his weekly radio address, calling them burdensome job killers. Senator Toomey also criticized President Obama for increasing the number of regulations generally, using the FCC’s Open Internet Order as an example. To view the address, click here.
- On August 18, 2011, the Phoenix Center for Advanced Legal & Economic Public Policy Studies released a study authored by its Chief Economist, George Ford, finding that “Americans who use the Internet are more likely to continue active job searches and less likely to drop out of the labor force than those that do not use the Internet.” The study updates two earlier studies from 2010, and found that even dial-up Internet users are less likely to drop out of the labor force. More information may be found here.
- Comments on the FCC Notice of Inquiry (NOI) for next year’s “section 706” report are due September 6, 2011, and Reply Comments are due October 4, 2011. To view the NOI, click here.
Please contact Ross Buntrock, Alan Fishel, Michael Hazzard, Jeffrey Rummel, or Jason Koslofsky (contact information below) for further information.
In the Courts
- On August 16, 2011, the United States Court of Appeals for the Seventh Circuit affirmed a federal trial court’s denial of class certification and grant of summary judgment for defendants in a case alleging violations of Indiana’s anti-cramming statute. Defendants included billing clearinghouses and billing aggregators for third-party service providers. Both courts rejected the entirety of plaintiffs’ claims, finding that the anti-cramming law does not apply to the defendants because they are not regulated carriers, and that, even if the law did apply, no violation occurred because the services were in fact “ordered.” As the Court of Appeals explained, “we conclude that the Indiana anticramming regulation does not apply to these defendants because they are not telephone companies and did not act in this case as billing agents for telephone companies. Second, we find that there was no unjust enrichment where the plaintiff ordered and received the services in question. Third, we find that the Deceptive Commercial Solicitation Act does not apply because the plaintiff had actually ordered the services for which it was charged.” Lady Di’s, Inc. v. Enhanced Servs. Billing, Inc., No. 10-3903 (7th Cir.).
Please contact Ross Buntrock, Jon Canis, Michael Hazzard, Stephanie Joyce, or Joseph Bowser (contact information below) for further information.
Legislative Outlook
- Sen. John “Jay” Rockefeller IV, Chair of the Senate Commerce Committee, has praised the FTC’s recent COPPA enforcement measures, stating that “We must be particularly vigilant when it comes to protecting the privacy and safety of our children.” He also noted, however, that “while I am pleased with the FTC’s recent action, I also believe it is crucial that the FTC completes its revision of the COPPA Rule to account for changing technology and give consumers the regulatory protections they need for the future.” To view the full statement, click here.
- Both the House and the Senate are on August Recess through September 5, 2011.
Please contact Stephanie Joyce (contact information below) for further information.
Upcoming Events
- Ross Buntrock, a Partner in our Group, will deliver the keynote address at the Mobile Payment Conference to be held September 8 and 9, 2011, in New York, NY. For more information or to register, click here.
- Jeffrey Rummel, a Partner in our Group, will speak at the 8th Military Antennas Summit held by the Institute for Defense & Government Advancement September 12-15, 2011, in Washington, DC. For more information, click here.
- Jonathan Canis and Ross Buntrock, Partners in our Group, will speak at CompTel Plus in Orlando, Florida on October 3, 2011, on a topic titled “Mediation, Complaints and Referrals: What Does It Take to Get Disputes Resolved Before the FCC?” For further information, click here.
Please contact Ross Buntrock, Jonathan Canis, or Jeffrey Rummel (contact information below) for further information.
For further information, please contact any of our attorneys in the Arent Fox Telecommunications Group, including:
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Ross A. Buntrock |
Michael B. Hazzard |
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Jonathan E. Canis |
Stephanie A. Joyce |
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Alan G. Fishel |
Jeffrey E. Rummel |
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Adam D. Bowser |
Marcia Fuller Durkin |
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Joseph P. Bowser |
Jason A. Koslofsky |
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G. David Carter |
Katherine Barker Marshall |