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 finalized its Agenda for the Open Meeting to be held Thursday, August 5, 2010, at 10:30 a.m. Eastern. It contains the two items previously noticed: a Report and Order and Further Notice of Proposed Rulemaking regarding hearing aid compatibility; and a Notice of Proposed Rulemaking and Notice of Inquiry suggesting that the Commission should permit wireless spectrum to be used for wireless backhaul. To view the Agenda, click here.

Federal Trade Commission (FTC) Developments

• On July 27, 2010, FTC Chairman Jon Leibowitz testified before the US Senate Commerce Committee about the agency’s efforts to protect consumer privacy. In his testimony, the Chairman described the FTC’s aggressive consumer privacy enforcement program which has focused on data security, identity theft, children’s privacy, and protecting consumers from spam, spyware, and telemarketing. During the hearing, the panel questioned Chairman Leibowitz and FCC Chairman Julius Genachowski as to the extent of their respective agency’s jurisdiction on privacy issues. With regard to whether the agencies anticipate new federal privacy legislation, Chairman Leibowitz stated that “It’s in [industry’s] hands to avoid legislation,” adding that there will be a “fair amount of interest in the next Congress” if companies fail to convince the public and Capitol Hill that they are taking privacy measures seriously. An FTC press release on the hearing can be found here. A copy of the Chairman’s testimony can be found here.

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 July 26, 2010, XO Communications Services urged the Pennsylvania Public Utilities Commission (PA PUC) to issue an order declaring that Verizon Pennsylvania, Inc. is liable for dedicated tandem port charges imposed in violation of the parties’ interconnection agreement (ICA). Verizon had earlier urged the PUC to dismiss XO’s April 2008 complaint as moot because it had already refunded or provided credits to XO for the disputed amounts. In its new motion, however, XO asserted that although Verizon has stopped charging the port charges voluntarily for the “past several months,” it would be free to resume doing so. XO asserted that it is “imperative for the refund requirement and accounting provisions to be formally included in the commission’s final order in this matter so as to bind Verizon to remedying its past unlawfulness and to preserve XO’s rights to refunds of the unlawful charges.” Docket C-2008-2038195.

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 is filed electronically here.
• Completed FCC Form 499-Qs for Universal Service reporting are due August 2, 2010 for all filers that are not considered to be de minimis. This filing encompasses historical revenues from the second quarter of 2010 and projected revenues for the fourth quarter of 2010. A copy of the current version of the form can be found here. If a filer intends to utilize a traffic study as a proxy for apportioning end-user revenues between intrastate, interstate and international revenue categories in the fourth quarter, the filer must submit the traffic study on August 2, 2010 as well. A copy of the Public Notice, which includes a brief overview of the guidelines for traffic studies, can be found here. (DA No. 10-1347).

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

Stimulus This Week

• On July 22, 2010, the US Senate passed HR 4899 containing supplemental appropriations for the fiscal year 2010. In doing so, the Senate rejected an amendment made by the House of Representatives earlier this month to claw back over $600 million in stimulus funding — $300 million from the Broadband Initiatives Program (BIP) administered by the Rural Utilities Service (RUS), and $302 million from the Broadband Technology Opportunities Program (BTOP) overseen by the National Telecommunications and Information Administration (NTIA). The House concurred in the Senate version of the bill on July 27, 2010, and sent to President Obama for signing on July 29, 2010. A copy of the bill may 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 July 26, 2010, Chairman Genachowski spoke at the Communications Workers of America conference in Washington, DC and emphasized that “higher broadband equals more jobs.” Chairman Genachowski compared the widespread adoption of broadband to the adoption of electricity and landline telephones in the 20th century. He spoke about the recent Section 706 Report which found that “broadband deployment to all Americans is not reasonable and timely” and stressed that the United States. must improve broadband adoption, accessibility, and speed. The text of the speech may be found here.
• Chairman Genachowski also spoke on July 28, 2010 at the Organization for the Promotion and Advancement of Small Telecommunications Companies (OPASTCO) Summer Convention and Trade Show about many of the same issues, emphasizing the need for Universal Service and intercarrier compensation reform. The text of that speech is available here.
• The FCC and Federal Drug Administration (FDA) signed a Memorandum of Understanding (MOU) and Joint Statement of Principles this week, pledging to work together in implementing the wireless healthcare goals in the National Broadband Plan. The MOU, available here, states that the FCC and FDA will promote initiatives related to the review wireless medical devices. The Joint Statement of Principles is available here.

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

Telecom Privacy News

• On July 29, 2010, the Information Commissioner’s Office of Great Britain announced that its privacy investigation of Google’s StreetView revealed no wrongdoing by the company. The agency found that the data captured by StreetView was not likely to cause detriment to any individual. The agency’s public statement about the case is available here. The criminal investigation of StreetView commenced in May 2010 by prosecutors in Hamburg, Germany remains ongoing.

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

In the Courts

• On July 23, 2010, the US District Court for the Southern District of Indiana resolved motions for summary judgment in the last surviving case that made up the In re AT&T Corporation Fiber Optic Cable Installation multi-district litigation. The cases arose out of AT&T’s installation of fiber optic cable in the 1980s along railroad corridors without permission from adjoining landowners. Baltimore County brought this case after it opted out of AT&T’s settlement agreement with other affected Maryland landowners; the County asserted claims of trespass, slander of title, and unjust enrichment. After the dispute was narrowed down to 12 land parcels, the court granted summary judgment for AT&T regarding four of those parcels. The court found that the “railroad owns the title in fee simple to one parcel, and the claims arising from the other three parcels were resolved through the class settlement before the County acquired them,” but the court rejected “AT&T’s other arguments for summary judgment on the remaining parcels, including theories that the cables are authorized by the railroad easement and that the statute of limitations bars the County’s claims.” The court retained jurisdiction to allow for limited discovery, and then committed to transferring the case to the federal district court in Baltimore. Baltimore County v. AT&T Corp., No. 1:04-cv-07014-DFH-TAB.
• On July 21, 2010, a New Jersey state appeals court granted Verizon Wireless’s request to reconsider and reverse that court’s May 24, 2010 decision that the company’s application to construct a cell tower was properly denied. The appeals court acknowledged several errors of fact and law in its decision, but found that Verizon nonetheless had failed to demonstrate that the application should have been granted. The court thus remanded the case back to the Zoning Board of Tenafly, NJ for further consideration. New York SMSA Ltd. Partnership v. Zoning Bd. of Adjustment of Borough of Tenafly, N.J. App. Div. A-1152-08T2.

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

Legislative Outlook

• The House of Representatives went out of session on July 30, 2010. The Senate will go out of session this Friday, August 6, 2010. Both chambers return on Tuesday, September 6, 2010.
• Rep. Rick Boucher, D-Va., has introduced two telecommunications bills in the last 10 days. HR 5828, the Universal Service Reform Act of 2010, would establish funding Universal Service funding for broadband services and would fund wireless communications via a competitive bidding process. The bill also addresses “phantom” traffic and access charges. HR 5947, co-authored with Rep. Cliff Stearns, R-Fla., would reward the networks for returning television spectrum by providing them some of the proceeds of the subsequent spectrum auction.

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