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.

Federal Communications Commission (FCC) Announcements

• The FCC has released the Seventh Broadband Notice of Inquiry in which it seeks comment on the definition of “advanced telecommunications” as well as the proper metrics for evaluating broadband and whether broadband has been deployed sufficiently. Comments are due September 7, 2010, and Reply Comments are due October 5, 2010. Please contact Ross Buntrock, Jon Canis, Michael Hazzard, or Stephanie Joyce (contact information below) for further information or for assistance in filing comments. The NOI is available here.
• On August 12, 2010, the FCC announced the creation of the Office of Native Affairs and Policy which will “work to promote the deployment and adoption of communications services and technologies throughout Tribal Lands and Native communities.” Geoffrrey Blackwell, appointed June 22, 2010, to lead the FCC’s Native Affairs Initiatives, will head the Office. The press release is available here.

Federal Trade Commission (FTC) Developments

• Regulators from the European Commission have reportedly joined the FTC in investigating whether Apple’s iPhone application development practices harm competition. The FTC’s reported probe, which remains unconfirmed, centers on Apple’s barring iPhone applications developers from using third-party development tools such as Adobe Flash. Apple allegedly also modified its policies in a manner that could limit the types of that data third parties can obtain about the iPhone.

Please contact Ross Buntrock, Alan Fishel, or Stephanie Joyce (contact information below) for further information or for assistance in filing comments.

Developments in Intercarrier Compensation

• On August 12, 2010, Aventure Communication Technology, LLC filed a motion to stay with the Iowa Utilities Board (IUB) urging it to suspend its investigation of Aventure’s recently filed intrastate access services tariff. Several interexchange carriers, including Qwest Communications Corp., Sprint Communications Company, LP, T-Mobile Central LLC, and AT&T Communications of the Midwest, Inc., had protested Aventure’s revised tariff, claiming it violated the IUB’s so-called high-volume access services (HVAS) rules recently adopted in Docket RMU-2009-0009. Aventure had already filed on August 3, however, a federal lawsuit requesting review of the HVAS rules and is seeking to enjoin their enforcement. Aventure Commc’n Technology, LLC v. Iowa Utils. Bd., et al., Case 5:10-cv-04074-MWB. Aventure therefore argued to the IUB that it would be in the “interest of justice and judicial economy for the Board to stay its order” pending resolution of Aventure’s federal court challenge. Docket TF-2010-0087.
• On August 10, 2010, US Signal Company LLC, d/b/a RVP Fiber Co., and AT&T Ohio filed a notice with the Ohio Public Utilities Commission (Ohio PUC) informing it that they have reached an agreement extending the parties’ interconnection agreement (ICA) to June 24, 2013. This agreement follows US Signal’s filing of a complaint in July 2010 against AT&T requesting that the Ohio PUC extend the ICA for three years pursuant to the BellSouth-AT&T Merger Conditions adopted in 2006. US Signal filed similar complaints in Indiana, Michigan and Wisconsin. AT&T is still refusing to concede US Signal’s right to extend the parties’ ICA outside of Ohio, however, arguing that the Commission does not have jurisdiction to enforce the Merger Conditions. Ohio Case No. 10-910-TP-CSS, Wisconsin Docket No. 6720-TI-223.

Please contact Ross Buntrock, Jon Canis, Michael Hazzard, or Stephanie Joyce (contact information below) for further information regarding intercarrier compensation matters.

Compliance Notes

• Completed Local Competition and Broadband Reports (FCC Form 477) are due to the FCC September 1, 2010. The filing requirement applies to facilities-based providers of broadband connections to end user locations, providers of wired or fixed wireless local exchange telephone service, providers of interconnected Voice over Internet Protocol (VoIP) service, and facilities-based providers of mobile telephony service. The FCC has prepared a guide to assist filers in preparing the report, which can be found here. The report may be filed electronically here.
• On August 9, 2010, the FCC announced that payments of the Annual Regulatory Fee are due on August 31, 2010 (DA 10-1451). All interstate telecommunications service providers (ITSPs) must pay $0.00349 per assessable revenue dollar, based upon the revenues reported on their FCC Form 499-A. Commercial Mobile Radio Service (CMRS) will be assessed $0.18 per unit. Broadband Radio Service (BRS) (formerly known as multipoint distribution service (MDS) and multichannel multipoint distribution service (MMDS)), and local multipoint distribution service (LMDS) providers are assessed $310.00 per license. Earth stations are assessed $240.00 per license/authorization and $240.00 for each Hub Station.
  
  The FCC will not be sending out reminder notices or invoices this year. Providers are required to log into the FCC’s Fee Filer service with their FRN and password in order to determine the amount of the assessment. Carriers and other communications providers are required to pay the fee no later than 11:59 PM EDT on August 31, 2010, or risk a late payment penalty of 25 percent of the assessment.
  
  A copy of the Public Notice may be found here. The FCC has also put out a guide to using the Fee Filer service that is available here, as well as a guide to making the required payment that can be found here.

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

Stimulus This Week

• On August 10, 2010, President Obama signed into law the Education Jobs and Medicaid Assistance Act (HR 1586, Public Law No. 111-226), a copy of which may be found here. As a result of the legislation, the National Telecommunications and Information Administration (NTIA) lost $302 million in funding for the Broadband Technology Opportunities Program (BTOP). The money will be used instead to avert teacher layoffs and assist the states in funding Medicaid. NTIA is still finalizing its review of applications for second round of BTOP funding and has been announcing grants on a rolling basis since July 2010. Announcements will continue through September 30, 2010.
• On August 4, 2010, the US Government Accounting Office (GAO) released a report evaluating the first round of funding under NTIA’s BTOP and the Broadband Initiatives Program (BIP), administered by the Rural Utilities Service (RUS). The report also recommended that the Department of Commerce and the Department of Agriculture anticipate and plan for a lack of resources for program oversight after the final grants and loans under the programs are announced. A copy of the report may be found here.
• On August 4, 2010, US Department of Agriculture (USDA) Secretary Tom Vilsack announced the funding of 126 new broadband infrastructure projects in 38 states. The awards total $1.2 billion, and are composed of grants, loans, and grant/loan combinations. This announcement is part of USDA’s second round of funding. USDA has an additional $1 billion in funding still available for this round which will conclude by September 30, 2010. A copy of the announcement can be found here. A list of recipients can be found here.

Please contact Ross Buntrock, Jon Canis, Alan Fishel, or Jeffrey Rummel (contact information below) for further information regarding stimulus funding.

Broadband News

• On August 9, 2010, the FCC released a Public Notice seeking comment “on the creation of a Cybersecurity Roadmap to identify vulnerabilities to communications networks or end-users and to develop countermeasures and solutions in preparation for, and response to, cyber threats and attacks in coordination with federal partners.” The Cybersecurity Roadmap was recommended as part of the National Broadband Plan. Comments are due September 23, 2010. No date for Reply Comments has been set. The Public Notice may be found here.
• Also on August 9, 2010, Verizon and Google announced a “proposed legislative framework” for Open Internet issues. The proposal includes some of the same Open Internet principles embraced by the FCC, such as non-discrimination and transparency, but would treat the wired Internet and wireless Internet differently. Only the transparency principle would apply to wireless broadband due to “the unique technical and operational characteristics” of that service. The proposal also would allow Internet access providers to prioritize traffic in some “additional services”. The proposal also emphasizes that broadband availability must be encouraged and that the FCC should complete intercarrier compensation reform within 12 months. The CEOs of Google and Verizon wrote an op-ed piece published in the Washington Post on August 10, 2010, stating that the proposal “empowers an informed consumer, ensures the robust growth of the open Internet and provides incentives to strengthen the networks that carry Internet traffic.” FCC Commissioner Michael J. Copps released a short statement about the proposal in which he pushed for an actual FCC decision on Open Internet in order to “reassert FCC authority over broadband telecommunications, to guarantee an open Internet now and forever, and to put the interests of consumers in front of the interests of giant corporations.”
  
  The proposal is available here.
  
  Google’s blog post about the proposal is here.
  
  Verizon’s blog post is here.
  
  The Washington Post op-ed can be viewed here.
  
  Commissioner Copps’ statement is available here.
• On August 12, 2010, several parties, including the Media Access Project, the New America Foundation Open Technology Initiative, Free Press, Public Knowledge, Consumers Union, and the US Public Interest Research Group, challenged the Verizon-Google proposal in a letter to FCC Chairman Julius Genachowski. The group claimed that the proposal “does not in any way alleviate the need for the Commission to act to protect consumers, small businesses, students, creators, innovators, investors and others that depend on an open, vibrant Internet.” The group urged the Commission to “act swiftly” on the Chairman’s proposal to reclassify broadband services under Title II of the 1934 Communications Act.

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

Telecom Privacy News

• Police in South Korea raided Google’s office in Seoul to obtain data regarding StreetView as part of its investigation into whether Google unlawfully has taken and stored personal wireless data. From late last year until May, Google Korea reportedly dispatched cars topped with cameras to cruise around the country to photograph neighborhoods before the planned introduction of Street View. The police suspect that those cars might have illegally captured and stored personal data from wireless networks while they were mapping streets, a statement by the Cyber Terror Response Center of the Korean National Police Agency said. Google has stated that the collection of personal data had been unintentional and that it will cooperate with the investigation.
• According to the Wall Street Journal, Google has developed a confidential, seven-page “vision statement” on how far should it go in profiting from the data it maintains about people’s Internet activities. The document was compiled in late 2008 by Aitan Weinberg, now a senior product manager for Internet-based advertising. Until recently, Google had refrained from using most of the data it captured about users for profit-generation purposes, but the emergence of competitors that do track and sell this data is apparently causing Google to rethink its position. Roughly 75 percent of global Internet users, or 943.8 million people, used Google services in June 2010, more than any other Web company.

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

In the Courts

• On August 6, 2010, the federal district court in Idaho resumed the class action brought against Level 3 Communications for its alleged improper laying of “fiber optic cable over [plaintiffs’] property, along a railway easement, without their permission.” After efforts to settle this 2001 suit broke down, the court resumed the litigation and issued an order approving the Plaintiffs’ notice plan, “with one exception: those receiving notice will include all landowners who owned the property underlying or adjacent to the rights of way where the fiber-optic cable is installed at any time from January 1, 2000 until the present.” The court rejected Level 3’s efforts to dismantle the class: “The Court disagrees that the concerns Defendants raise justify decertifying the class. The Court also disagrees that these concerns should impede the provision of notice to the class.” Koyle v. Level 3 Commc’ns, Inc., No. CV 01-0286-S-BLW.
• On August 4, 2010, a federal district court in Washington state affirmed the order of the Washington Utilities and Transportation Commission (WUTC) resolving the interconnection agreement (ICA) dispute between Qwest Corporation and Eschelon Telecom. In the order under review, the WUTC rejected Qwest’s argument that the WUTC could not order Qwest to provide several services, such “special access” and “private line” service, because they are provided under section 271 of the 1996 Act rather than section 251. The WUTC found that the FCC’s Triennial Review Remand Order granted it authority to order Qwest to include those services in its ICA with Eschelon. The court agreed, finding that the “terms and conditions that govern how conversions and commingling will be accomplished are inextricably tied to duties imposed under section 251 to convert existing circuits from a UNE basis to a non-UNE basis.” Qwest Corp. v. Washington Utilities and Transportation Commission, Case No. 09-5259-RBL.

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

Legislative Outlook

• The US House of Representatives and the US Senate are out of session. Both chambers return on Tuesday, September 6, 2010.
• Prior to the recess, the Senate passed S. 3304, the Twenty-First Century Communications and Video Accessibility Act of 2010. Introduced in May 2010 by Senator Mark Pryor, D-Ark., the bill would require providers of interconnected VoIP service to contribute to the Telecommunications Relay Service fund, and would require carriers to ensure that persons with disabilities can access advanced telecommunications services. The FCC would be required to submit a report to Congress every two years on the industry’s compliance with the new mandates. A press release about the bill is available here.

Upcoming Events

• Telecom Group Partners Jon Canis and Ross Buntrock will be presenting at the COMPTEL Plus 2010 Fall Convention + Expo being held September 12-15, 2010, in Dallas. For more information or to register, click here.

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

Ross A. Buntrock
buntrock.ross@arentfox.com
202.775.5734

Jonathan E. Canis
canis.jonathan@arentfox.com
202.775.5738

Alan G. Fishel
fishel.alan@arentfox.com
202.857.6450

Michael B. Hazzard
hazzard.michael@arentfox.com
202.857.6029

Stephanie A. Joyce
joyce.stephanie@arentfox.com
202.857.6081

Jeffrey E. Rummel
rummel.jeffrey@arentfox.com
202.715.8479