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

• On August 22, 2012, the FCC released its long-awaited order on Special Access facilities, suspending its existing rules allowing automatic grants of pricing flexibility “in light of significant evidence that these rules, adopted in 1999, are not working as predicted[.]” The order was adopted by a 3-2 vote, with both Republican Commissioners dissenting. The order, FCC 12-92, is available here.
• 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

• AT&T’s recent announcement that it will make its video chat application, FaceTime, available only to customers subscribing to AT&T’s Mobile Share plan, rather than all customers subscribing to any data plan, has drawn allegations that the policy violates the FCC Open Internet rules. Previously, FaceTime was available only through a WiFi connection. AT&T defends the new policy on its blog, arguing that because it does not have a similar preloaded video chat app to compete with FaceTime, its policy does not violate net neutrality rules. According to AT&T, the net neutrality rules “do not regulate the availability to customers of applications that are preloaded on phones. … Rather, they address whether customers are able to download apps that compete with our voice or video telephony services.” For the full blog post, click here.
• Three communities have asked the FCC to grant them special temporary authority (STA) to continue deploying public safety broadband networks in the 700 Megahertz band following the Commission’s decision to terminate 20 deployment waivers that had been previously granted. The Bay Area Regional Interoperable Communications System (BayRICS) Authority, Harris County, Texas and the Adams County, Colo., Communications Center have also sought temporary authority this month. In its filing, BayRICs explained that “The STA is required in order to avoid further loss of momentum, loss of funding commitments and potentially wasting the substantial investment made in the BayWEB project to date.” According to the filing, the Bay Area project has been in the works for over two years and 128 sites can be quickly completed when grant funds are released, and much faster than the nationwide FirstNet public safety broadband network can be deployed.

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 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

• 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 21, 2012, North County Communications Corp. of Oregon filed a complaint against CenturyLink with the Oregon Public Utility Commission (OPUC) alleging that CenturyLink has failed to pay local termination charges pursuant to the parties’ interconnection agreement (ICA). North County alleges that CenturyLink has failed to pay for local traffic termination since January 2009, but that the parties entered into a tolling agreement in July 2010 while they attempted to negotiate a settlement. North County now alleges in its complaint, however, that CenturyLink broke off negotiations and threatened to disconnect North County by July 16, 2012, but that the parties later agreed to resolve the dispute before the OPUC. North County also alleges that CenturyLink has been overcharging it for multiplexing fees related to interconnection facilities and fees associated with circuit installation. North County asks the OPUC to determine the amount it is owed and to find that CenturyLink’s charges for circuit installation and multiplexing are unlawful under the parties’ ICA. Docket No. IC 16.

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

• Notwithstanding progress that has been made in recent years, a new Broadband Progress Report released by the FCC finds that approximately 19 million Americans still lack access to fixed broadband service at threshold speeds. According to the report, which the FCC is required to provide annually, nearly one-fourth of the population in rural areas lack access, while nearly one-third of the population on Native American tribal areas are without access. Even where broadband is available, approximately 100 million Americans still do not subscribe. The report concludes that until the FCC’s Connect America reforms are fully implemented, these gaps are unlikely to close. Because millions still lack access to or have not adopted broadband, the Commission concludes broadband is not yet being deployed in a reasonable and timely fashion. The FCC’s Eighth Broadband Progress Report, available here. A map showing availability of fixed broadband is available here.
  
  In addition to releasing the annual progress report, the Commission also issued a Notice of Inquiry seeking comment about three core characteristics — speed, latency, and data capacity — for the purposes of determining whether advanced telecommunications capability is being deployed to all Americans. The Commission also asks for comment about whether it should evaluate mobile broadband availability using a different benchmark than those used for fixed broadband service and about which characteristics of mobile broadband service the Commission should consider in establishing such benchmarks. Finally, the Commission asks parties to provide data to assess the current state of the broadband market and how the Commission can ensure that progress is being made not only towards meeting current broadband needs, but also stimulate future development and innovation. Comments are due September 20, 2012; Reply comments are due October 22, 2012. The Notice 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 21, 2012, the U.S. District Court for the Eastern District of Pennsylvania denied the joint motion of Alcatel, Lucent, and Ericsson to dismiss the complaint of TruePosition alleging abusive standards-setting in violation of the antitrust laws. TruePosition alleges that the defendants manipulated the standards body, Third Generation Partnership Program (3GPP), and “collaboratively manipulated 3GPP’s processes and procedures to gain unfair advantages for their preferred location technologies, and to prevent or delay standardization of TruePosition’s technology.” In their joint motion, the defendants argued that the complaint is nothing more than unsubstantiated “tales of conspiracy,” but the court disagreed, finding that the complaint is “replete with allegations of parallel conduct by the corporate defendants pertaining to their various roles within the standardized process,” and also “alleged concerted acts to obstruct or stop the inclusion of [TruePosition’s positioning technology] within the standard.” The court went on to state that “TruePosition’s allegations of conspiracy are indeed plausible. That is not to say that we find the allegations probable, which is not required at this stage, but we do find that when read together they do raise a reasonable expectation that discovery will reveal evidence of an illegal agreement.” True Position, Inc. v. LM Ericsson Tel. Co., No. 2:11-cv-04574 (E.D. Pa.).

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

Legislative Outlook

• Rep. Fred Upton, R-Mich., Chair of the House Commerce Committee, and Greg Walden, R-Ore., Chair of the Communications Subcommittee, released a joint statement regarding the FCC Special Access order: “The FCC has once again handed down a decision without providing sufficient evidence that action is needed. … The FCC has a responsibility as an expert agency to justify its actions with data before intervening in the status quo.” To read the full statement, click here.
• 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.