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

• Comments on the petition for declaratory ruling of SoundBite Communications regarding text messages are due today, April 30, 2012, and Reply Comments are due May 15, 2012. SoundBite seeks a ruling that sending a text message to confirm a consumer’s choice to opt out of receiving them does not violate the Telecommunications Consumer Protection Act (TCPA). 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.
• The FCC is holding a Collocation Workshop tomorrow, May 1, 2012, from 9:30 am to 4:00 pm Eastern. The workshop will explore “wireless collocations that augment mobile broadband and wireless services in cities and communities.” You may register to attend by sending your name and company affiliation to James Swartz (james.swartz@fcc.gov). The event will be webcast. For more information, click here.
• The next FCC Open Meeting is scheduled for May 24, 2012, at 10:30 Eastern. We will provide the Tentative Agenda when it is released.

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

The Mobile Market

• A paper published by Public Knowledge on April 23, 2012 analyzes wireless data caps and so-called "usage-based billing.” According to Public Knowledge, “Usage-based pricing, today most commonly encountered in the form of data caps, is rapidly becoming part of the Internet access landscape. Wired and wireless Internet service providers – most of whom had traditionally operated on an unlimited basis – are evaluating or implementing pricing strategies that limit the amount of data a customer can use, charge customers for using data beyond a predetermined amount, or combine the two.” Through the paper, Public Knowledge hopes to begin a public dialogue and the paper sets forth “a series of conclusions and recommendations for responsible implementation of usage-based pricing.” The full paper is available here.
• Comments to the FCC on the impact of a public safety network on Commercial Mobile Radio Service are due today, 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

• 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 25, 2012, the FCC released a Second Order on Reconsideration amending a few of the rules adopted in the Universal Service and Intercarrier Compensation Reform Order, FCC 11-161 (Nov. 18, 2011). LECs will be permitted to “tariff default charges equal to intrastate originating access for originating intrastate toll VoIP traffic (including traffic that originates in IP, terminates in IP, or both) at intrastate rates until June 30, 2014.” The FCC reaffirmed, however, that interstate access rates continue to apply to all interstate toll VoIP-PSTN traffic. A copy of the Second Order on Reconsideration 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 23, 2012, the parties to the Open Internet appeal filed a joint motion with a proposed briefing schedule. The parties are requesting that briefing start on July 2, 2012, with a joint Verizon/MetroPCS brief, a shorter separate brief for MetroPCS, and a separate brief for Free Press. The parties seek separate briefs on the ground that Verizon and MetroPCS argue the Open Internet rules went too far, while Free Press will argue they did not go far enough. The separate MetroPCS brief deals with a smaller issue on data roaming to which Verizon and MetroPCS hold opposing opinions in other litigation. The FCC and United States would file September 10, 2012. Intervenors would submit briefs on October 3, 2012. Petitioners’ reply briefs would be due October 24, 2012. Final briefs providing citations to the appendix would be due November 21, 2012. The Court has not yet adopted this schedule. Verizon Wireless v. FCC, Case No. 11-1355 and consolidated cases (D.C. Cir.).
• The Internet Corporation for Assigned Names and Numbers (ICANN) should release the list of applications for new generic top-level domains (gTLDs) today, April 30, 2012. The application window closed 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 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 26, 2012, the Supreme Court of Washington held that AT&T Mobility unlawfully passed through Washington State’s Business & Occupations (B&O) tax onto its wireless customers as a line-item charge on their monthly invoices, rather than factoring the cost into its sales price. The applicable statute expressly states that “It is not the intention of this chapter that the taxes herein levied upon persons engaging in business be construed as taxes upon the purchasers or customers[.]” Relying on an earlier holding, the Supreme Court held that “the crux of Nelson is that under RCW 82.04 .500, a business cannot add on the B&O tax to the sales price,” because “although in the end businesses may charge the entire B&O tax amount to its customers as overhead, at least it will be reflected in a sales price that consumers can compare against competitors.” Thus, by preventing consumers from making an apples-to-apples price comparison, and collecting the tax from consumers as a monthly surcharge, AT&T violated the tax law. Peck v. AT&T Mobility, No. 85581-1 (Wash.).

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

Legislative Outlook

• On April 27, 2012, the U.S. House of Representatives passed the Cyber Intelligence Sharing and Protection Act (CISPA) by a margin of 248 votes to 168. The bill is designed to lift legal barriers that make it difficult for the intelligence community and private companies to share information about cyber-threats and attacks. CISPA is one of the few recent pieces of privacy-related legislation to receive support from some big industry players, most notably Facebook. Leading privacy groups, however, have opposed CISPA, fearing it would do more to endanger privacy than aid cybersecurity. For many of the same reasons, the White House has recently threatened to veto the bill. In the Senate, where some Senators have voiced criticism of CISPA, the Cybersecurity Act of 2012 has been introduced as an alternative. It would give the Department of Homeland Security the authority to establish security standards for and assess the risks and vulnerabilities of critical infrastructure systems.
  
  The text of CISPA is available here.
  
  The text of the Cybersecurity Act of 2012 is available here.
• House Telecom Subcommittee Chair Greg Walden, R-Ore., and Ranking Member Anna Eshoo, D-Cal., have established a bipartisan Federal Spectrum Working Group “to examine how the federal government can use the nation's airwaves more efficiently.” It will be co-chaired by Reps. Brett Guthrie, R-Ky., and Doris Matsui, D-Cal., with Reps. Walden and Eshoo serving ex officio. 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.