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 Intercarrier Compensation l Compliance Notes l Broadband News l In the Courts l Legislative Outlook l Events

Federal Communications Commission (FCC) Announcements

• On August 5, 2011, the FCC announced the winners of the Open Internet App Challenge which invited “researchers and software developers to engage in research and create apps that help consumers foster, measure, and protect Internet openness.” The winners developed software designed to measure mobile broadband performance, detect traffic discrimination or “shaping” by Internet Service Providers, and evaluate the functionality of Internet connectivity. More information can be found here. Chairman Genachowski’s remarks on the awards are available here.
• Chairman Genachowski has announced his five-step action plan for deploying next-generation 911 (NG911) service. Noting that “It’s hard to imagine that airlines can send text messages if your flight is delayed, but you can’t send a 9-1-1 text message in an emergency,” he described his plan to work with carriers, manufacturers, and the public safety community to establish cost-effective, standardized methods for enabling consumers to send texts, photos, and video to Public Safety Answering Points (PSAPs). For more information, click 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

• On August 9, 2011, the FCC released a Report and Order, Further Notice of Proposed Rulemaking, and Memorandum Opinion and Order on allowing use of fixed microwave links for wireless backhaul. The Report and Order permits fixed microwave links to operate in several bands, which previously were reserved for specialized microwave services, through use of “adaptive modulation” that allows licensees to use the latest technology to maintain the reliability of critical links. It also permits broadcasters to use fixed microwave links more freely, by eliminating the outdated “final link rule”. The Further Notice of Proposed Rulemaking seeks comment on allowing smaller antennas to be used in certain microwave bands and on exempting licensees from the FCC’s efficiency standards in non-congested areas. Comments on the Further Notice of Proposed Rulemaking are due October 4, 2011, and Reply Comments are due October 25, 2011. For more information, click here. To view the item, click here.
• The FCC has combined its review of the AT&T/T-Mobile merger with the pending application for transfer of control between AT&T and Qualcomm. In a letter to AT&T and Qualcomm, Rick Kaplan, Chief of the Wireless Telecommunications Bureau, explained that “The Commission’s ongoing review has confirmed that the proposed transactions raise a number of related issues, including, but not limited to, questions regarding AT&T’s aggregation of spectrum throughout the nation, particularly in overlapping areas. As a result, we have concluded that the best way to determine whether either or both of the proposed transactions serve the public interest is to consider them in a coordinated manner at this time, without prejudice to independent treatment at a later date.” The FCC has not yet, however, formally consolidated the two transactions. To read the letter, click here.
• The United States Food and Drug Administration (FDA) this week announced the availability of draft guidelines for “Mobile Medical Applications”. Due to the increasing use and expansive applicability of mobile applications, the FDA has issued the draft guidance to “clarify the types of mobile apps to which FDA intends to apply” its regulatory requirements. Consumers and interested parties may submit comments on the draft through 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

• Google recently hired Suzanne Michel from the FTC, where she was Deputy Director of Policy Planning. Ms. Michel dealt mainly with patent issues at the FTC, including authoring a March 2011 report suggesting improvements to the current patent system.
• The Hamburg Data Protection Agency has criticized Facebook’s facial recognition technology as violating German and European data protection laws. According to the agency, Facebook should delete the data, but Facebook has claimed that its technology does not violate any European or German law and has received “hardly any” complaints from users. More information may be found here.
• Comments on the Aristotle International safe harbor program under the FTC Children’s Online Privacy Protection Act (COPPA) rules are due today, August 15, 2011. More information is available here.

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

Developments in Intercarrier Compensation

• On August 9, 2011, the Florida Public Service Commission (FLPSC) voted unanimously to deny two motions by Verizon Business Service to dismiss the complaint filed by Bright House Networks Information Services. The complaint, which also named Verizon Florida LLC, the local exchange carrier, as a defendant, alleges that Verizon is refusing to pay Bright House’s intrastate access charges for VoIP traffic. The first Verizon motion argued that the FLPSC lacks jurisdiction over VoIP traffic which, they asserted, is within the FCC’s exclusive jurisdiction. After Verizon filed that motion, Bright House entered into an interconnection agreement (ICA) with the Verizon LEC that set a rate of $0.0007 for all VoIP traffic. Verizon then filed a supplemental motion to dismiss, arguing that the parties’ new ICA demonstrates Bright House’s admission that its complaint is without merit, asserting that “if Bright House believed that applying a $0.0007 rate to IP-format traffic was ‘unfair and unreasonable’, Bright House would not have agreed to that rate in its agreement with Verizon Florida.”
  
  Verizon later filed for dismissal as to only the LEC entity, asking the FLPSC to “order Bright House to amend its Complaint to remove Verizon Florida as a party.” On July 28, Bright House voluntarily dismissed the Verizon LEC. The FLPSC denied the remaining motions at a hearing on August 9, 2011. It held that “there is nothing in federal law that preempts the Commission from addressing the matter,” and rejected Verizon’s argument that Bright House conceded its case by signing the ICA. A representative for Bright House stated at the hearing that Verizon’s unpaid access charges have increased from $2.2 million when the complaint was filed to $8.3 million, and added that until there “is some prospect of Verizon having to actually pay their bills, they are not going to do it. Any notion that staying this case will promote a private settlement is completely backwards.” Docket No. 110056-TP.

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.
• The FCC has released its Report and Order adopting rules for its collection of regulatory fees for fiscal year 2011. It has determined that it must collect a total of $335,794,000 in fees. The Report and Order sets forth filing procedures but no due date has yet been adopted. To read the item, click here.

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

Broadband News

• On August 5, 2011, the FCC released a Notice of Inquiry (NOI) seeking information for next year’s “section 706” report, which borrows its name from section 706 of the 1996 Act, on whether broadband is being deployed to all Americans in a reasonable and timely fashion. The most recent report, released May 20, 2011, found that broadband deployment was not reasonable and timely. Comments are due September 6, 2011, and Reply Comments are due October 4, 2011. The NOI may be found 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 5, 2011, the United States Court of Appeals for the District of Columbia denied a motion to stay the FCC’s Report and Order on pole attachments, which became effective June 8, 2011. The appellants, a group of electric utilities led by American Electric Power Service Corp., challenged the new rules that (1) allow incumbent local exchange carriers to file pole attachment complaints, (2) modify the rate formula applicable to telecommunications companies, and (3) expand the refund period in pole attachment complaint proceedings. The Court of Appeals held that the appellants “have not satisfied the stringent standards for a stay pending court review.” American Elec. Power Serv. Corp. v. FCC, No. 11-1146 (D.C. Cir.).
  
  A second set of electric utility providers elected to remain before the FCC and seek reconsideration. Their petition for reconsideration, filed by the Coalition of Concerned Utilities, seeks modification of several rules governing the rights of the entities that attach to utility poles, including their right to refunds of overcharges.

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

Legislative Outlook

• Rep. Mary Bono Mack, R-Cal., Chair of the House Commerce, Manufacturing, and Trade Subcommittee, has requested further information from McAfee on its report, titled “Revealed: Operation Shady RAT”, summarizing its findings about a global hacking campaign that has persisted for the last five years. To view Rep. Mack’s letter, 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

• 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.