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.

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FCC Announcements l The Mobile Market l FTC and Privacy Regulation l New Markets: Smart Grid and E-Health l Intercarrier Compensation l Compliance Notes l Broadband News l In the Courts l Legislative Outlook l Events

Federal Communications Commission (FCC) Announcements

• The Technical Advisory Board for First Responder Interoperability will hold a public workshop today, April 23, 2012, from 8:30 am to 12:30 pm Eastern at FCC Headquarters in Washington, DC. The purpose of this workshop is to share information about necessary minimum technical requirements for a nationwide, interoperable public safety broadband network. For more information, click here.
• The FCC has released the Agenda for its next Open Meeting on April 27, 2012, at 11:00 am Eastern. It contains five items, including a Report and Order and Further Notice of Proposed Rulemaking on “cramming” and a Further Notice of Proposed Rulemaking on modernizing the contribution system for the Universal Service Fund. To view the Agenda, click here.
• The FCC has launched the ‘Bill Shock’ Website as “an online tool to help consumers track implementation of recent commitments by wireless carriers to provide usage alerts before and after consumers exceed their plan limits.” The address is http://fcc.us/billshocks. Chairman Julius Genachowski said of the website, “Using technology to empower consumers with information has been among the top priorities of the Commission. ... Today, we deliver on that promise.” To read more, click here.
• The FCC seeks comment on the petition for expedited declaratory ruling of Soundbite Communications that sending one-time, confirmatory messages when a consumer opts out of receiving text messages does not violate the Telecommunications Consumer Protection Act (TCPA). Comments are due April 30, 2012, and Reply Comments are due May 15, 2012. The petition is available here. The Notice establishing filing deadlines is available here. CG Docket No. 02-278.
  
  Read our Client Alert on this proceeding here.

Please contact Ross Buntrock, Alan Fishel, Michael Hazzard, or Jon Canis (contact information below) for further information.

The Mobile Market

• The FCC has recently confirmed that an order is circulating among the Commissioners that would dismiss dozens of waiver requests filed by agencies seeking to deploy public safety networks in the 700 Megahertz band. The item went on circulation April 11, 2012. The potential dismissals follow the recent spectrum legislation that calls for the National Telecommunications and Information Administration to oversee the construction and maintenance of a public safety system on a national level.
• The FCC seeks comment on the impact of a public safety network on Commercial Mobile Radio Service by April 30, 2012, with Reply Comments due May 30, 2012. The call for comments was issued in response to a decision to suspend service in San Francisco’s subway system last August. The Public Notice asks for comment on several topics, including: past practices and precedents; bases for interrupting wireless service; risks in interrupting mobile communications; scope of interruption; authority to interrupt service; and the legal constraints on service disruption. The notice is available here.
• The Canadian Radio-television and Telecommunications Commission has opened a proceeding to consider whether Canada should begin to regulate retail wireless services. As has the United States, the CRTC previously declined to impose regulations on the wireless market, believing that there was sufficient competition to impose constraints on wireless carriers. But according to the Notice of Consultation released April 4, 2012, “the Commission is seeking comments on whether the conditions for forbearance have changed sufficiently to warrant Commission intervention in the development of a national retail wireless services consumer code.”  Interested parties must intervene by May 3, 2012, and Reply Comments must be filed by May 14, 2012. The Commission expects to issue a ruling about four months later. The Notice of Consultation is available here.

Please contact Ross Buntrock, Michael Hazzard, or G. David Carter (contact information below) for further information.

Federal Trade Commission (FTC) and Privacy Regulation

• The FTC will hold a workshop on April 26, 2012, titled “Paper, Plastic . . . or Mobile? An FTC Workshop on Mobile Payments”. It will examine the use of mobile payments and how this emerging technology affects consumers. Panelists will include consumer advocates, industry representatives, government regulators, technologists, and academics, and the workshop will be free and open to the public. Topics for discussion will be mobile payments technology, business models used in mobile payments, and the consumer protection and privacy issues that mobile payments raise. The experiences of other countries with mobile payments also will be discussed. The agenda is available here. More information about the workshop is available here.
• On May 30, 2012, the FTC will host a day-long, public “Dot Com Disclosures Workshop” addressing the need for new guidance for advertisers on appropriate disclosures for the online and mobile environment. The Workshop will concentrate on technological advancements and marketing developments that have emerged since the FTC first issued its online advertising disclosure guidelines known as “Dot Com Disclosures”. Revisions will be consistent with the goals of the original guidelines, and will continue to emphasize that general consumer protection laws apply equally to online and mobile marketers. More information on the  Workshop is available here.

Please contact Ross Buntrock, Alan Fishel, Stephanie Joyce, or Stephen Thompson (contact information below) for further information.

New Markets: Smart Grid and E-Health

• The U.S. Department of Energy (DOE) has announced a new “Apps for Energy” competition in partnership with PG&E, Itron, and Gridwise Alliance. The competition challenges application developers to use the Green Button data access program to make residential and commercial utility data more accessible and useful to the consumer. As part of DOE’s smart grid initiative, the Green Button program seeks to make energy usage data available in a streamlined and easy-to-understand format. The developers who submit the best apps will win part of a $100,000 cash prize, and submissions are due May 15, 2012 by 8:00 pm EST. Winners will be announced May 22, 2012. The official rules and deadlines are available here. More information regarding the Green Button initiative is available here.

Please contact Stephanie Joyce, Jeffrey Rummel, G. David Carter, or Stephen Thompson (contact information below) for further information.

Developments in Intercarrier Compensation

• On April 19, 2012, Broadwing Communications, LLC filed a petition for rehearing with the New York Public Service Commission (NYPSC) requesting that it reverse the finding that Broadwing violated tariff rules by failing to file addenda to its intrastate access tariff related to certain off-tariff agreements. In a complaint against several competitive local exchange carriers (CLECs) filed December 2009, Qwest Communications Company, LLC alleged that the CLECs had entered into off-tariff arrangements with several other interexchange carriers but refused to provide the same rates to Qwest for similar access services. After the PSC ordered the CLECs to disclose any off-tariff agreements, it issued a preliminary order on March 20, 2012, finding that “Qwest was apparently charged the tariff rate, while certain other IXCs were charged lower off-tariffed rates through separate agreements.” The NYPSC directed its staff to report recommendations for remedies. In its petition for rehearing, Broadwing denies that it discriminated against Qwest. Rather, Broadwing argued that the majority of the off-tariff agreements incorporated Broadwing’s NYPSC-approved intrastate access rate, such that there could be no discrimination against Qwest or the need to file such agreements with the PSC. Broadwing further argued that the remaining off-tariff agreements related to Session Initiated Protocol (SIP) services which, it asserts, are not subject to NYPSC jurisdiction. Docket No. 09-C-0555.
• On April 17, 2012, the California Senate’s Energy, Utilities, and Communications Committee voted 12-0 to approve SB 1161, a bill that would prohibit the California Public Utilities Commission (CPUC) from asserting jurisdiction over VoIP providers unless otherwise expressly permitted by statute. SB 1161 states, however, that the CPUC retains jurisdiction over intercarrier compensation disputes related to the exchange of VoIP traffic, and further provides the CPUC with continued authority to assess state Universal Service Fund contributions requirements on VoIP providers. The bill now heads to the Senate Appropriations Committee. A copy of SB 1161 can be found here.

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

• Non-dominant interexchange carriers (IXCs) must file their annual Geographic Rate Averaging Certification with the FCC by May 1, 2012. This filing certifies that the IXC is in compliance with the geographic rate average and rate integration obligations under Section 254(g) of the Communications Act of 1934, as amended. The certification must be signed by an officer of the IXC under oath, and should be sent to: Office of the Secretary, Attn: Chief, Pricing Policy Division, Room 5-A225, 445 12th Street S.W., Washington, DC 20554.
• The Maryland Public Service Commission (MD PSC) has ordered all facilities-based Local Exchange Carriers (LECs) operating in Maryland to file reductions to their intrastate switched access rates in accordance with the Connect America Order (FCC 11-161) by May 1, 2012. These filings should bear an effective date of July 1, 2012. The MD PSC is also requiring facilities-based LECs to update their intrastate tariffs to reflect the implementation of the Connect America Order’s Internet-protocol (IP) traffic provisions by July 1, 2012. These provisions allow LECs to charge switched access charges for all IP-related traffic at interstate rates. The MD PSC warned that LECs that do not make these filings in a timely manner may be out of compliance and will not be allowed to charge for intrastate switched access until their revised tariff is approved by the MD PSC. A copy of the MD PSC notice can be found here. The Connect America Order may be found here.
• Form 499-Q is due May 1, 2012 for all filers that are not considered to be de minimis for Universal Service filing purposes. This filing encompasses historical revenues from the first quarter of 2012 and projected revenues for the third quarter of 2012. A copy of the current FCC Form 499-Q can be found here. Voice over Internet Protocol (VoIP) providers and Commercial Mobile Radio Service (CMRS) providers who rely on traffic studies to report interstate revenues on FCC Form 499-Q must submit these studies by May 1, 2012 to the Universal Service Administrative Company (USAC) and the Chief, Industry Analysis and Technology Division of the FCC.
• The Universal Service contribution factor for the second quarter of 2012 is 17.4%. A copy of the Public Notice announcing the rate can be found here. (DA-12-396).

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

Broadband News

• On April 14, 2012, President Obama called on countries of the Western Hemisphere to join the U.S. in the new Broadband Partnership of the Americas (BPA), which is “supported by the U.S. Agency for International Development (USAID) and the [FCC] and is a voluntary and flexible framework through which governments, the private sector, multilateral organizations and the donor community can join forces to improve access to broadband and the Internet.” The BPA will help countries develop and implement national broadband strategies, create or upgrade universal service funds to finance the expansion of mobile and broadband technologies to rural communities, and share best practices. More information may be found here.
• On April 15, 2012, Reed Hastings, CEO of Netflix, posted commentary on Facebook criticizing Comcast’s recently announced policy of not counting Comcast-streamed video delivered to an Xbox 360 as part of a user’s Internet use data cap (see April 2 edition of This Week in Telecom). Hastings stated that Comcast should “apply data caps equally, or not at all” and made the comparison to watching Netflix, Hulu, or HBO GO on an Xbox 360, which would count against a cap, to watching Comcast Xfinity, which would not count against a cap. Comcast has defended the practice by stating it is no different than streaming to a Comcast set-top box. Hastings’ post may be found here.
• The Internet Corporation for Assigned Names and Numbers (ICANN) has retained April 30, 2012 as its target date to release the list of applications for new generic top-level domains (gTLDs) which will specify who has applied for which gTLDs. The application window closes April 12, 2012. If ICANN receives an “overwhelming number of applications,” it may postpone publication of the list of strings. ICANN’s announcement is available here.
• On April 17, 2012, the FCC released a consumer tip sheet on Wi-Fi networks and privacy, with tips like turning on encryption features and changing router passwords.  The tip sheet is available here.
• On April 4, 2012, the National Telecommunications and Information Administration (NTIA) requested comment on its proposal “to add 12 questions to the U.S. Census Bureau’s October 2012 Current Population Survey (CPS) in order to gather reliable data on broadband (also known as high-speed Internet) use by U.S. households.” The questions are intended to gauge progress on President Obama’s goal of universal, affordable broadband access for all Americans and to identify problem areas. Comments are due June 4, 2012. The Federal Register notice is available here.

Please contact Ross Buntrock, Alan Fishel, Michael Hazzard, Jeffrey Rummel, or Jason Koslofsky (contact information below) for further information.

In the Courts

• On April 18, 2012, the FCC filed a petition for a writ of certiorari asking the U.S. Supreme Court to reverse the Third Circuit and reinstate the $550,000 fine imposed on CBS for the infamous Janet Jackson “wardrobe malfunction” during the halftime show of the 2004 Super Bowl. The Third Circuit held that the FCC had only announced its changed fleeting-indecency standard after the incident occurred, and thus could not apply its new rule retroactively. The FCC disagrees, and told the nation’s highest court that by “adhering to a misconception of the commission’s policies on broadcast indecency ... the court of appeals contravened settled principles governing the deference due to an administrative agency’s reasonable understanding of its own decisions.” The FCC asked the Supreme Court to defer ruling on its petition until the Court resolves the pending appeal of separate fines for fleeting expletives that the FCC had imposed on Fox in 2002 and 2003, which also raises fair-notice challenges.
  
  The principles of judicial deference to agencies may not be settled. In his recent concurrence in Talk America, Inc. v. Michigan Bell (No. 10-313), Justice Scalia indicated an interest in reconsidering the so-called Auer deference, explaining that “Deferring to an agency’s interpretation of a statute does not encourage Congress, out of a desire to expand its power, to enact vague statutes; the vagueness effectively cedes power to the Executive. By contrast, deferring to an agency’s interpretation of its own rule encourages the agency to enact vague rules which give it the power, in future adjudications, to do what it pleases. This frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government.”
  
  The FCC’s petition is available here. FCC v. CBS Corp. (No. 12-___).

Please contact Ross Buntrock, Jon Canis, Michael Hazzard, Stephanie Joyce, or Joseph Bowser (contact information below) for further information.

Legislative Outlook

• Rep. Fred Upton, R-Mich., Chair of the House Commerce Committee, has released a report on the Committee’s accomplishments thus far in the Second Session of the 112th Congress. Among them are “supporting job creation” and “standing up for taxpayers” by reducing the size of the federal government.
• The full Senate Commerce Committee will hold a hearing titled “The Emergence of Online Video: Is It The Future?” tomorrow, April 24, 2012, at 10:00 am Eastern in 253 Russell Senate Office Building. Scheduled witnesses include Barry Diller, Chairman and Senior Executive of IAC, and Paul Misener, Vice President for Global Public Policy at Amazon. For more information, click here.
• The House Subcommittee on Intellectual Property will hold a hearing titled “International Patent Issues: Promoting a Level Playing Field for American Industry Abroad” on April 26, 2012, at 10:00 am Eastern in 2141 Rayburn House Office Building. For more information, click here.

Please contact Stephanie Joyce (contact information below) for further information.

Upcoming Events

• Jeffrey Rummel, a Partner in our Group, will give a speech titled “FCC Licensing/Regulation of the Manufacture, Development & Testing of Military Communications Systems” at the Military Wireless Conference to be held May 15-17, 2012, at the Sheraton National Hotel in Arlington, VA. For more information, click here.
• The FCBA Annual Conference will be held May 4-6, 2012, at the Hyatt Regency Chesapeake Bay. For more information, click here.

Please contact Jeffrey Rummel, Jonathan Canis, or Stephanie Joyce (contact information below) for further information.

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