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, compliance, legislation, and litigation. Follow our Telecom Group on Twitter. Click here.

We have launched a new webpage for our Public Safety, Homeland Security, and Defense Practice Area headed by Telecom Group Partner Jeffrey Rummel (contact information below) which is a dedicated practice area focused on issues related to public safety, homeland security and defense, representing a wide range of clients that include manufacturers, aerospace companies and defense contractors. To view the page, click here.

Federal Communications Commission (FCC) Announcements

• The FCC has released the Tentative Agenda for its next Open Meeting to be held December 21, 2010. It contains two items: the much-publicized Open Internet order; and a Notice of Inquiry on broadband-enabled Next Generation 911 service. To view the agenda, click here.
• Tomorrow, December 14, 2010, the FCC will hold the Generation Mobile Forum “to discuss the opportunities and challenges around mobile technology use by adolescents.” It will be held from 10:30 am to 1:30 pm Eastern at McKinley Technology High School Auditorium, 151 T Street, NE, Washington, DC 20002. Registration is required – send your name, organizational affiliation, and phone number to generationmobile@fcc.gov. For further information, click here.
• The FCC has released a Notice of Proposed Rulemaking seeking comment on proposed changes to the Commission’s Registration System, or “CORES”. Comments are due 30 days after publication in the Federal Register, and Reply Comments are due 15 days thereafter. MD Docket No. 10-234. To view the item, click here.
• Comment dates have been set for the FCC’s “bill shock” proceeding. CG Docket Nos. 10–207 and 09–158, Empowering Consumers to Avoid Bill Shock; Consumer Information and Disclosure, Notice of Proposed Rulemaking, FCC 10–180 (rel. Oct. 14, 2010). Comments are due December 27, 2010, and Reply comments are due January 25, 2011. More information may be found here.

Please contact Ross Buntrock, Alan Fishel, or Jon Canis (contact information below) for further information.

Federal Trade Commission (FTC) Developments

• On December 7, 2010, the FTC released an Advanced Notice of Proposed Rulemaking (NPRM) requesting comment on whether and how to strengthen the Caller ID provisions of the Telemarketing Sales Rule. Under the current rule, telemarketers must provide the name of the telemarketer, seller, or charitable organization making the phone call to the Caller ID system if the telemarketer’s carrier makes this service available. In the NPRM, the FTC seeks comment on how to make the rule more useful to consumers and how to combat technologies that telemarketers use to conceal their identity. It also seeks input on what modifications to the rule will allow consumers and law enforcement to use Caller ID information to identify entities responsible for illegal telemarketing practices now and in the future, including whether the rules should be amended to recognize or anticipate specific developments in telecommunications technologies. In addition, the NPRM requests comment on whether the FTC should expand the provisions of the rule that require disclosure of the identity of the seller or charitable organization on whose behalf a call is being made. Comments must be received by the FTC no later than January 28, 2011. A link to the NPRM can be found here.
• On December 1, 2010, the FTC released its much-anticipated staff report on online privacy which proposes a broad framework for regulating the commercial use of information gathered from consumers’ online activities. The report calls upon the FTC to develop rules that (1) provide additional privacy and data security protections for consumers, (2) allow consumers to choose whether they want companies to collect information about their online browsing habits (e.g., consumers should have access to a universal “Do Not Track” mechanism), and (3) give individual consumers the right to access and review information about themselves collected by online companies and data aggregators. As drafted, many of the report’s recommendations would require Congress to pass new legislation or require the industry to develop new processes for self-regulation. Comments on the report are due to the FTC before or on January 31, 2011.
  
  A copy of the report can be found here.

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

Developments in Intercarrier Compensation

• On December 8, 2010, the Ohio Public Utilities Commission voted unanimously to deny a motion filed by the Ohio Consumer Counsel requesting that the Commission hold formal hearings as part of its investigation into intrastate access charge reform. On November 3 of this year, the Commission commenced an investigation pursuant to its previous proposal to restructure intrastate access rates in order that they are no higher than a carrier’s interstate access rates. ILECs would be compensated for lost revenues through a mechanism called the “Access Restructuring Fund.” AT&T, CenturyLink, Windstream Ohio, Inc., and other carriers urged the Commission to deny Consumer Counsel’s request for hearings, characterizing it as “premature and unnecessary.” Docket No. 10-2387-TP-COI.
• On December 6, 2010, AT&T Texas filed a letter with the Public Utility Commission of Texas (TX PUC) stating that it has resolved its dispute with Sprint as to whether Sprint was entitled to a three-year extension of the parties’ interconnection agreement. Sprint initially filed a complaint in July 2009 seeking to port the parties’ Kentucky interconnection agreement to Texas, but after an adverse ruling issued by the TX PUC, it sought to extend the parties’ existing Texas interconnection agreement pursuant to AT&T-BellSouth Merger Commitment 7.4. In its filing, AT&T stated that the parties “expect to report further on or before January 6, 2011.” Docket No. 37174.

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

Compliance Notes

• All providers of interconnected fixed or non-nomadic Voice over Internet Protocol (VoIP) services as of December 1, 2010 will be required to register with the Illinois Commerce Commission (ICC) by January 1, 2011, in accordance with 220 ILCS 5/13-401.1. Thereafter, new providers will be required to register with the ICC at least 30 days prior to their provision of service within Illinois. The ICC has posted a copy of the registration form 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 December 3, 2010, the National Telecommunications and Information Administration (NTIA) issued a request for the assistance of academic researchers to assess broadband availability data gathered in connection with the development of an interactive National Broadband Map. The National Broadband Map will be released by February 17, 2011, and will include data collected from all 50 states, four territories, Puerto Rico, and the District of Columbia. Data will include the number of broadband providers serving each area, available broadband speeds, and the types of technology used to provide broadband service. NTIA is offering researchers early access to selected portions on the condition that any analyses be completed by the end of January 2011. NTIA plans to present the analyses provided by the researchers when the National Broadband Map is published.
  
  Interested researchers will be required to enter into a Joint Project Agreement with the Department of Commerce, and will be required to allow NTIA to copy, distribute, and display the analyses. However, the researchers retain all other rights to the materials produced. Researchers must maintain confidentiality of the data from the National Broadband Map and their analyses until the National Broadband Map is unveiled. NTIA will not provide funding for these reviews. More information 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

• The FCC released two working papers and the Sixth Broadband Deployment Report last week. The first working paper titled “Broadband decisions: What drives consumers to switch – or stick with – their broadband Internet provider,” and the second titled “Broadband satisfaction: What consumers report about their broadband Internet provider” are based on surveys by the FCC in April 2010. The working papers found that 36 percent of Internet users had switched providers in the past three years and 49 percent of those users switched to obtain faster services. Further, 51 percent of broadband users are very satisfied with their service overall and 42 percent are somewhat satisfied. The Sixth Broadband Deployment Report summarizes Form 477 data and found that the majority of users have advertised speeds of less than 6 Mbps. The first paper is available here. The second paper is here. The report is available here.
• The proposed Open Internet order should be voted this Tuesday. Several Commissioners have spoken publicly about their thoughts on the proposed order. Commissioner Mignon Clyburn stated at PLI’s 28th Annual Telecommunications Policy & Regulation Institute Conference that her Christmas wish is that consensus be reached in as many areas as possible. She stated that presently there is consensus that an Open Internet is “critical for America” and said her focus is on the wireless portion of the proposed order to make sure the user experience is the same between wired and wireless. Commissioner Meredith Attwell Baker spoke at the same conference and emphasized that Congress and the court have stated that the FCC does not have the authority to regulate the Internet. She also argued that there was no crisis that needed immediate attention by the FCC and that the FCC should focus on other issues like spectrum reform. Commissioner Clyburn’s speech is available here. Commissioner Baker’s speech is available here.

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

Telecom Privacy News

• Microsoft is preparing to launch a version of Internet Explorer browser that will include a feature allowing consumers to list Web sites that they do not want to track them on the Internet. The announcement follows the FTC’s proposal to create a “Do-Not-Track” rule to allow consumers to choose whether they want to be tracked as they surf the Internet. The company expects that other groups will create lists for consumers to use.
• A putative class-action complaint filed in the US District Court for the Northern District of California alleges that Google’s Toolbar software, a browser add-on that helps people use the popular search engine, tells the company every Web page a user visits. Plaintiffs have lodged claims for violation of federal anti-hacking and wiretapping laws, California consumer protection laws, and for unjust enrichment. According to the complaint, Google failed to fully disclose how much personal information Toolbar collected. The complaint also alleges that Google failed to provide a meaningful opt-out feature that would have protected customers from having their information shared. Weber, et al. v. Google Inc., No. 10-CV-05035 (ND Cal.).

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

In the Courts

• On December 8, 2010, Intellectual Ventures, a firm formed by Microsoft’s former CTO that acquires and licenses patents and other intellectual property, filed three separate patent-infringement actions in federal court in Delaware against a series of defendants claiming that they have knowingly infringed Intellectual Ventures’ patents and refused to agree to reasonable licensing terms. As Intellectual Ventures describes itself in the complaints, it has spent hundreds of millions of dollars acquiring individual inventors’ patents from which it has “earned nearly $2 billion by licensing these patents to some of the world’s most innovative and successful technology companies who continue to use them to make computer equipment, software, semiconductor devices, and a host of other products.” Intellectual Ventures brought one suit against Altera, Microsemi Corp. and Lattice Semiconductor, alleging that those defendants have incorporated Intellectual Ventures’ programmable logic devices “in a variety of technologies, including telecommunications, wireless technology, military applications, and networking.” A second suit against Hynix Semiconductor and Elpida Memory alleges that those companies’ memory chips infringe other of Intellectual Ventures’ patents. And a third suit against Symantec, McAfee, Trend Micro, and Check Point Software Technologies alleges that their anti-virus and internet security products have infringed Intellectual Ventures’ patents as well. Intellectual Ventures seeks an unspecified amount of damages in each suit. Intellectual Ventures I LLC v. Altera Corp., No. 10-cv-01065-UNA, et al. (D. Del.).
• On November 29, 2010, the Appellate Court of Illinois partially reversed a trial court’s dismissal of a suit brought by various residents of Glen Ellyn, Illinois against the Village of Glen Ellyn and two T-Mobile entities. The residents had challenged the Village’s grant of permission to T-Mobile to install a cellular antenna and related equipment on the Village’s water tower. The appellate court agreed that the Village’s interpretation of its own ambiguous ordinance, which stipulated that the number of antennas on the water tower was to be kept “at a minimum,” was entitled to deference. The court also dismissed the plaintiffs’ claims regarding RF radiation, finding them to be preempted under the Telecommunications Act. But the appellate court reversed the trial court’s dismissal of the plaintiffs’ claim challenging the Village’s decision to allow T-Mobile to place an antenna that would exceed the Village’s own height restrictions, and install high voltage electrical boxes in a fashion not contemplated by the relevant ordinance. The case was remanded to the trial court to resolve those issues. Ruisard v. Village of Glen Ellyn, No. 2-09-1083.

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

Legislative Outlook

• Arent Fox has released a list of the upcoming Committee Chairs in the House of Representatives. Click here.
• On December 7, 2010, Rep. Henry Waxman, D-Calif., outgoing Chair of the House Commerce Committee, sent a letter to Chairman Genachowski regarding the proposed Comcast-NBC Universal merger. Though he urged the Chairman to approve the merger “by the end of the year, if possible,” he suggested four merger conditions “[t]o protect consumers and promote competition.” The conditions include a requirement that the merged entity provide competitors access to its programming, and an express prohibition against discriminatory treatment of unaffiliated cable providers. For the full text of the letter, click here.

Upcoming Events

• Telecom Group Partner Jeffrey Rummel (contact information below) will present a speech titled “FCC Licensing/Regulation of the Manufacture, Development and Testing of Military Communications Systems; Public Safety/Cybersecurity Regulatory Update” at the Military Wireless Convention in Las Vegas. The convention will take place December 15 and 16, 2010. For more information, click here.

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