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 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 next FCC Open Meeting will be held on September 28, 2012, at 10:30 am Eastern. We will release the Tentative Agenda when it is released.
• The FCC will hold an event titled “Developing with Accessibility” on September 6 and 7, 2012, at its Washington, DC headquarters. The purpose of the event is “to spur increased collaboration on accessibility solutions among developers from industry, consumer, and government sectors” with a particular focus on how “to build accessible apps for mobile phones and websites.” Those wishing to attend must pre-register for the event by sending their name, affiliation, and contact information to devacc@fcc.gov by August 31, 2012. For more information, click here.

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

The Mobile Market

• On August 3, 2012, the FCC adopted and released FCC 12-87, an order focused on streamlining the deployment of wireless backhaul in microwave bands, including permitting smaller antennas, making its efficiency standards in rural areas more flexible, and permitting the use of wider channels. The item combines an order, further notice of proposed rulemaking, notice of inquiry, and an order on reconsideration. In the order, the Commission states that the new rules “will remove regulatory barriers that today limit the use of spectrum for wireless backhaul and other point-to-point and point-to-multipoint communications” as well as “reduce costs of deploying wireless backhaul in rural areas” leading to further “deployment of broadband infrastructure across America.” The Commission now seeks comment on permitting smaller antennas in the 13 GHz band, on “revising the circumstances under which licensees in the 11 GHz band can reduce power in order to avoid having to upgrade their antennas,” and “on making additional changes to our antenna standards to reflect advances in technology, accommodate non-parabolic antennas, and harmonize our standards with international standards.” Comments on the Further Notice and Notice of Inquiry are due 30 days after Federal Register publication and Reply Comments are due 15 days thereafter. FCC 12-87 is available here.
• On August 9, 2012, the Wireless Telecommunications and Wireline Competition Bureaus announced that only 5 of the 53 applicants to Mobility Fund Phase I, in which the FCC will grant $300 million in one-time support, were properly completed. The Bureaus will send notices to each of the 48 deficient applicants stating what information is required to make their applications complete. Corrections must be submitted by August 27, 2012, in order to participate in the auction which is scheduled for September 27, 2012. The Public Notice 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 August 9, 2012, the FTC announced its much-anticipated settlement with Google on allegations that Google misrepresented to Safari Internet browser users that it would not place tracking “cookies” or serve targeted ads on them. This settlement imposes $22.5 million in fines, the largest penalty the FTC has ever assessed for a violation of one of its orders. According to the FTC, Google’s actions violated an earlier October 2011 privacy settlement between it and Google wherein Google represented to certain users that it would not place tracking cookies or serve targeted ads based on those cookies. But despite Google’s representations, the FTC found that some users did, in fact, get tracking cookies and targeted ads in violation of that settlement. In addition to the civil penalty, the order also requires Google to disable all the tracking cookies it had originally agreed it would not place on users’ computers. More information regarding the settlement is available here.
• On August 6, 2012, the FTC published a Supplemental Notice of Proposed Rulemaking and Request for Comment in the Federal Register regarding further modifications to the Children’s Online Privacy Protection Act (COPPA) Rule. The FTC, in response to comments filed in September 2011, now proposes to modify certain definitions in the Rule to clarify its scope and strengthen its protections for the online collection, use, or disclosure of children's personal information. The proposed modifications are to the definitions “personal information,” “support for internal operations,” “website or online service directed to children,” and “operator.” Public comments on the Supplemental Notice of Proposed Rulemaking are due September 10, 2012. More information regarding the Supplemental Notice is available here. The text of the Federal Register Notice is available here.
• The FTC will host a “Robocall Summit” on October 18, 2012, in Washington, DC. The purpose of the summit will be to examine issues surrounding illegal pre-recorded robocalls. It will also highlight industry innovations that could potentially be used to trace robocalls and prevent illegal robocallers from faking caller ID data. The Robocall Summit will be open to the public, and will include members of law enforcement, the telemarketing and telecommunications industry, consumer groups, as well as other stakeholders. More information about the FTC’s recent efforts related to robocall issues and the Robocall Summit 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

• On August 9, 2012, the United States Department of Agriculture (USDA) announced that rural electric utilities in 18 states will receive loan guarantees to make improvements to electric lines and transmission facilities and to reduce peak electric loads by deploying smart grid technologies. The USDA states that “maintaining and upgrading rural electric systems improves system reliability, creates jobs and supports economic development. With these loans, we are continuing to help cooperatives provide reliable service to rural residents. A significant portion of this funding will go to smart grid technologies, helping consumers lower their electric bills and reducing peak demand for producers.” With this funding, USDA Rural Development moves closer to reaching Secretary Tom Vilsack’s goal of providing more than $250 million for smart grid technologies. More information regarding the announcement is available here.
• Comments on the FCC Further Notice of Proposed Rulemaking regarding medical body area networks (MBANs), and specifically the proposed procedures to pick an entity to coordinate MBAN use, are due September10, 2012, and Reply Comments are due September 28, 2012. ET Dockets No. 08-59 and 12-54. The FNPRM, which was combined with a First Report and Order, 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 August 8, 2012, the Missouri Public Service Commission (MPSC) suspended the YMax Communications Corp. proposed revisions to its intrastate switched access tariff and established a prehearing conference for August 22, 2012. On August 3, 2012, AT&T Communications of the Southwest, Inc. and Southwestern Bell Telephone Company, d/b/a AT&T Missouri filed a motion to suspend and investigate the proposed tariff revisions. AT&T has filed comparable motions to suspend YMax’s proposed tariff revisions in other states, including New Mexico, Kentucky, Alabama, West Virginia, Maryland and Ohio. AT&T argued in its motion that YMax’s proposed tariff revisions would allow it to charge interexchange carriers for access functions not provided by YMax, and that despite “unambiguous guidance from the FCC, YMax’s tariff contains numerous provisions that make clear that YMax will be seeking to collect the full array of access charges, including end office charges, even though neither YMax nor Magic Jack provide the services and functions that justify those access charges.” Following a staff recommendation to suspend and investigate the revisions, the MPSC found that to “allow sufficient time to study the effect of the proposed tariffs and establish an evidentiary record, the proposed tariffs will be suspended” until October 9, 2012, or until otherwise ordered by the MPSC. Docket No. TO-2013-0042.

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 FCC has released a Report and Order stating that it is maintaining the fiscal year 2012 Interstate Telecommunications Service Provider (ITSP) Annual Regulatory Fee rate at the 2011 level. That rate is $0.00375 per assessable dollar, as reported on a company’s FCC Form 499A. Similarly, the FCC is holding the rate it assesses Commercial Mobile Radio Service providers to $0.08 per subscriber. The Report and Order can be found here.
  
  The FCC has not announced the due date for payment of the Annual Regulatory Fees, but indicates in its Report and Order that they would be due in September. More information regarding payment of the fee can be found here. (FCC 12-76)
• The Universal Service contribution factor for the third quarter of 2012 is 15.7%. A copy of the Public Notice announcing the rate can be found here. (DA-12-917)

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

Broadband News

• On August 7, 2012, FCC Chairman Julius Genachowski gave a speech to the Latin American Youth Center in Washington, DC in which he announced the PC Pledge 100 initiative launched by Redemtech, an IT asset disposition company. The Pledge Drive is part of the FCC Connect2Compete program which “is focused on tackling the obstacles to broadband adoption – primarily cost and digital literacy.” The read the Chairman’s full remarks, click here. To read the PC Pledge 100 fact sheet, 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 8, 2012, the U.S. Court of Appeals for the Tenth Circuit declined to hear an interlocutory appeal (an appeal before the trial-level phase of the case is finished) of an Oklahoma federal court’s refusal to certify a class of plaintiffs to sue Cox Communications for violating antitrust laws by allegedly illegally tying its set-top boxes to its cable services. The trial court had found that plaintiffs’ request for a nationwide class “ignore[s] the economic reality that Cox customers face different options depending on where they live and that most customers will not relocate their homes in order to change their options.” The trial court also held that the relevant geographic market is not nationwide. The Tenth Circuit, declining to hear the early appeal, held that “[u]pon a careful review of the materials filed with this court and the applicable law, we conclude that this matter is not appropriate for immediate review.” To proceed, Plaintiffs’ counsel must split the suit up into regionally focused cases. Gelder v. CoxCom Inc., No. 12-706 (10th Cir.).

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

Legislative Outlook

• On August 9, 2012, Senator John “Jay” Rockefeller IV, D-W.Va., Chair of the Senate Commerce Committee, released a statement praising the FTC settlement with Google (see FTC and Privacy Regulation above). He stated that “it is imperative that the FTC continues to make sure that individual companies abide by the promises they make about consumers’ privacy.  Without strong enforcement actions, companies have shown a preference for profits over consumer protection.” To read the full statement, click here.

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

Upcoming Events

• Arent Fox, in conjunction with Mobile Monday, is hosting an event titled “Women and Philanthropy: Mobile For Good Works” today, August 13, 2012, at 6:00 pm Eastern, at its Washington, DC office. Telecom Group Partner Stephanie Joyce will moderate the event. For more information, click here.

Please contact Ross Buntrock, 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.