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

• 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.
• On August 15, 2012, FCC Chairman Julius Genachowski released a statement on the “It Can Wait” campaign to discourage texting while driving, noting that “last year, I challenged the wireless industry to step up and implement innovative solutions to help tackle this growing and dangerous problem. I commend AT&T for launching this important awareness campaign … .” To read his full statement, 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 16, 2012, Chairman Genachowski announced that he would circulate a draft order approving Verizon’s purchase of AWS spectrum from several cable companies in light of the concessions made by Verizon and the cable companies in a consent decree with the US Department of Justice. He stated that the transaction posed serious concerns, but that the concessions meant that the “substantially modified transaction will promote the public interest and benefit consumers in several ways.” Genachowski cited Verizon’s divesture of spectrum to T-Mobile, its commitment to accelerate the build-out of the new spectrum, and its promise that the companies’ commercial agreements will “preserve Verizon’s incentives to build out FiOS, increase wireless competition, and ensure that the proposed IP venture is pro-consumer and that its products cannot be used in anti-competitive ways.” Chairman Genachowski’s statement is available here.
• On August 14, 2012, Chairman Genachowski announced that the FCC had granted permission to T-Mobile to begin testing spectrum sharing with federal government agencies in the 1755-1780 MHz band. He stated the grant is intended to “facilitate commercial mobile broadband services in that band, which would significantly benefit millions of U.S. wireless consumers and help drive the mobile innovation economy.” Chairman Genachowski’s full statement 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 10, 2012, the FTC announced that it has accepted a final settlement with Facebook resolving charges that it deceived users by stating that they could keep their information on Facebook private, but then allowing that information to be shared and made public without their direct consent. The settlement was proposed in November of last year, and went through a public comment period. According to a statement released by the FTC, the settlement “requires Facebook to take several steps to make sure it lives up to its promises in the future, including by giving consumers clear and prominent notice and obtaining their express consent before sharing their information beyond their privacy settings, by maintaining a comprehensive privacy program to protect consumers’ information, and by obtaining biennial privacy audits from an independent third party.” The settlement also states, however, that Facebook denies the FTC’s allegations and makes no admission of guilt. The text of the final 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 13, 2012, the FCC released a report concluding that broadband health care networks in rural areas will “improve the quality and reduce the cost of delivering care.” The report evaluates the FCC’s Rural Health Care Pilot Program, examining the benefits and lessons learned regarding the 50 active projects in 38 states. “The experiences of those pilot projects are providing critical information to the FCC as it considers comprehensive reform of its Rural Health Care program.” Some benefits from the program include life-saving telemedicine connections, remote psychiatric consultations, and millions of dollars in saved expenses for rural health care providers. A summary of the report is available here. The report 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 September 10, 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 14, 2012, the Texas Public Utility Commission (TPUC) granted a motion filed by Sprint Communications Company L.P. to hold its complaint against CenturyLink, Inc. in abeyance for one month while the parties pursue settlement negotiations. Sprint filed its complaint against CenturyLink on July 19, 2012, alleging that CenturyLink was violating the terms of the parties’ interconnection agreement (ICA) by refusing to accept orders for, or provide already ordered, interconnection trunks that Sprint claims to need to enable it, and its wholesale customer Suddenlink Communications, to provide competing facilities-based voice telephone service in CenturyLink’s service territory. Sprint asserted that CenturyLink’s “actions are effectively preventing competitive entrance into its territory.” In addition to damages, Sprint sought an injunction that would prohibit CenturyLink from “refusing to provision new service orders or augment existing facilities and from interfering with the operation of local interconnection facilities and services governed by the ICA.” Then on August 10, 2012, Sprint filed a motion to hold the case in abeyance while the parties negotiate a possible settlement to the dispute, stating that the “parties are close to reaching a final resolution of their disputes and, therefore, anticipate that a hearing may not be necessary, but will not be certain of that for several days.” In its order granting Sprint’s motion, the TPUC directed Sprint and CenturyLink to either request a dismissal of the complaint or file a status report with the TPUC by September 4, 2012. Docket No. 40576.

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

• Payment of the Federal Communications Commission (FCC) Annual Regulatory Fee is due by 11:59 PM EDT on September 13, 2012. 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 FCC Registration Number (FRN) and password in order to determine the amount of their assessment. Payment can be made online through the Commission’s Fee Filer service, via wire transfer, or by sending a check to the FCC’s Lockbox at U.S. Bank in St. Louis, MO. The Fee Filer service may be accessed here.
  
  Late payments carry penalty of 25 percent of the carrier’s 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, which may be found here as well as a guide to making the required payment, found here.
• 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 15, 2012, Comcast announced that “nearly 100,000 families or almost 400,000 low-income Americans are now connected to the Internet at home (most of them for the first time)” because of Comcast’s Internet Essentials program. The milestone in this two-year old program was announced on Comcast’s blog by David L. Cohen, Executive Vice President and Chief Diversity Officer. Eligible families can obtain broadband from Comcast for $9.95 a month as well as discounted computers and digital literacy training. The blog post is available here. Comcast’s report to the FCC on the program 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 August 9, 2012, the First Circuit Court of Appeals partially vacated a district court’s dismissal of the complaint filed by Green Mountain Realty Corp. against the Town of Milton Zoning Board of Appeals and the Milton Conservation Commission for their denial of Green Mountain’s request to build a 140-foot cellular tower. The appeals court agreed with the district court that those state bodies relied on “substantial evidence” in denying Green Mountain’s request for the applicable permits, as required by 47 U.S.C. § 332, but found that the district court “did not adequately address Green Mountain’s evidence” supporting its claim that the state bodies’ denials amounted to an “effective prohibition” against on the provision of wireless services in that area, which can also violate Section 332 of the Communications Act. The court noted that the “effective prohibition standard can be violated even if substantial evidence exists to support the denial of an individual permit under the terms of the town’s ordinances.” Proving “effective prohibition” requires a showing that there was a coverage gap, and “that denial of an application effectively prohibits all wireless service in the area.” To do that, “Green Mountain submitted affidavits before the district court from its own president, as well as from the owner and manager of an independent consulting company hired to aid Green Mountain in the permitting process. These affidavits described efforts to identify alternative sites and explained why the sites suggested by local residents were unacceptable.” But the appeals court found that the trial “court failed to consider the evidence submitted by Green Mountain documenting its attempts to locate and evaluate alternative sites.” For that reason, the appeals court remanded the case back to the district court. Green Mountain Realty Corp. v. Leonard, No. 11-1706 (1st Cir.).

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

Legislative Outlook

• Congress is out on recess. The US Senate returns on the afternoon of September 10, 2012, and the US House of Representatives convenes that evening.

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

Upcoming Events

• The Federal Communications Bar Association will have a “Meet and Greet the New FCC Commissioners” event on September 13, 2012, from 6:00 to 8:00 pm Eastern at the Capital Hilton, 1001 16th Street, NW. To sponsor or register for this event, 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.