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: SmartGrid 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

• FCC Chairman Julius Genachowski has sent a letter to the State Commissioners who participated in a conference call he conducted the week of December 5 regarding fraud and waste in the Lifeline program. The letter notes several recent actions by the FCC to prevent and investigate Lifeline fraud, and urges the Commissioners to “join the FCC in our efforts to reform the Lifeline Program by closely scrutinizing the requests for [Eligible Telecommunications Carrier] designation pending before you[.]” To view the letter, click here.
• Reply Comments on the FCC Notice of Proposed Rulemaking on Next-Generation 911 (NG911) service are due January 10, 2012. To view the Federal Register notice, click here. To read the NPRM, click here.

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

The Mobile Market

• Co-sponsors of HR 3035, the Mobile Informational Call Act of 2011, which would have amended the Telephone Consumer Protection Act (TCPA) to make it easier for automatic dialers to call wireless phones legally, have abandoned their efforts. The legislation faced criticism from both Republicans and Democrats, as well as consumer groups and state attorneys who were concerned that the legislation would lead to unwanted calls. Last week, for example, 54 state and territorial Attorneys General signed a letter opposing the bill. Reps. Lee Terry, R- Neb., and Edolphus Towns, D- N.Y., the bill’s co-sponsors, wrote a letter to House Commerce Committee Chairman Fred Upton, R- Mich., stating what they “have learned is that there is no hope for this legislation. We have heard from our constituents. They are concerned about what they believe will happen should this legislation become law. ... Therefore, we ask that HR 3035 not be advanced by the committee.”
• Reply Comments to the FCC Wireless Telecommunications Bureau on the state of competition in the mobile wireless industry are due December 20, 2011. The full 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

• The FTC is investigating allegations that monitoring software developed by Carrier IQ and found on about 140 million smartphones has been collecting and transmitting data to carriers without the consumers’ knowledge. The FTC is reviewing how Carrier IQ collects the data and what kind of data is involved. The FTC’s probe comes on the heels of a letter from Senator Al Franken, D-Minn., on behalf of the Senate Subcommittee on Privacy, to Carrier IQ, demanding detailed information about its data collection and sharing practices. In addition, Rep. Edward Markey, D-Mass., sent a letter to the FTC urging it to investigate Carrier IQ for possible unfair or deceptive practices. “Consumers and families need to understand who is siphoning off and storing their personal information every time they use their smartphone,” stated Markey.  Sen. Franken’s letter to Carrier IQ is available here. Rep. Markey’s letter to the FTC is available here.
• The deadline for comments on the FTC’s proposed amendments to the Children’s Online Privacy Protection Rules is December 23, 2011. The FTC press release about the proceeding is available here. The text of the Federal Register notice is available here.

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

New Markets: SmartGrid and E-Health

• The IEEE reports that the University of Minnesota has successfully built a micro smart grid at its Morris campus that provides an example of what could become the norm for the electric grid everywhere. The final element in the ongoing project will be to install automated energy controls and management communications to seamlessly integrate occupants, buildings, the campus, and generating resources. As a result of its project, the campus is almost self-sustaining in energy consumption and net-zero in carbon emissions. The University expects to increase its energy savings another 15-32% by implementing the final communications and energy management controls. More information is available here.
• On November 8, 2011, the Department of Energy released its “Smart Grid Data Access” Funding Opportunity Announcement (FOA) that will provide up to $8 million to promote partnerships between utilities and third-party technology innovators for the development and implementation of applications that provide access to electricity consumption data. The FOA will have two phases, with funding applications due March 1, 2012. More information 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 December 12, 2011, the Iowa Utilities Board (IUB) granted the motion of Aventure Communication Technology LLC to withdraw its complaint against Qwest Corporation, Qwest Communications Company, LLC and PAETEC Communications. Aventure had alleged in its complaint in April of this year that the Qwest entities and PAETEC are sending “phantom traffic” to Aventure’s network in a “fraudulent scheme to avoid paying terminating access charges on intrastate and interstate long distance traffic terminated by Aventure at its central office in rural Salix, Iowa.” In its motion, Aventure noted that the recent FCC order on Universal Service Fund and Intercarrier Compensation Reform has established rules prohibiting phantom traffic on a prospective basis. The IUB’s order permits Aventure to “withdraw the Complaint without prejudice to refilling a new complaint if future conditions warrant that action.” Docket FCU-2011-0014.

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

• Under the FCC’s new access tariff rules adopted November 18, 2011, see December 5 Client Alert, all local exchange carriers (LECs) that trigger the “access stimulation” criteria are required to cap their switched access rates to the lowest incumbent carrier in the LEC’s service area starting December 29, 2011. All rate reductions, as mandated by the new “step-down” process, must be filed by February 13, 2012.
  
  A copy of FCC 11-161 may be found here.  (WC Docket Nos. 10-90, 07-135, 05-337, 03-109; GN Docket No. 09-51; CC Docket Nos. 01-92, 96-45; and WT Docket No. 10-208)
• Each competitive local exchange carrier (CLEC) that has an intrastate switched access tariff on file with the Illinois Commerce Commission (ICC) is required to reduce its intrastate switched access rates by an amount equal to 50% of the difference between its current intrastate switched access rates and interstate switched access rates. Those CLECs must file updated tariff pages reflecting the reduction by January 1, 2012. This is the second part in a step-down process mandated by a recent Illinois statute, and is intended to result in interstate and intrastate switched access rates mirroring each other by July 1, 2012. A notice from the ICC regarding this process may be found here. 220 ILCS 5/13-900.2.
• The FCC rule requiring CLECs to file their switched access tariffs and any supporting materials electronically went into effect November 17, 2011. A copy of the Report and Order establishing the rule can be found here. FCC-11-92, WC Docket No. 10-141.
  
  CLECs must use the Electronic Tariff Filing System (ETFS) to file their initial base tariffs by January 17, 2012. All subsequent tariff filings must likewise be made via ETFS. A copy of the FCC announcement can be found here. The FCC has issued an updated Public Notice to assist CLECs with their filings, which can be found here.  DA-11-1706, DA-11-1887, WC Docket No. 10-141.
• The Universal Service contribution factor for the First Quarter of 2012 is 17.9%. A copy of the notice can be found here.

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

Broadband News

• On December 13, 2011, the House of Representatives passed incentive spectrum auction legislation as a part of a larger bill (see Legislative Outlook below). Chairman Genachowski praised the legislation as a “major achievement” to “free up new spectrum for mobile broadband, driving investment, innovation, and job creation; generating many billions of dollars of revenue; and helping foster U.S. leadership in mobile broadband.” However, the legislation has aspects that worry Chairman Genachowski, such as limitations on the FCC’s ability to encourage the use of unlicensed spectrum for new technologies. Chairman Genachowski asked Congress to ensure the FCC has the “flexibility” necessary to implement the incentive auctions and to allocate the spectrum appropriately. The Chairman’s statement is available here.
• On December 15, 2011, the FCC announced the winners of its “Apps for Communities” challenge, which offered up to $100,000 in prize money for new applications that improve access for people who struggle with using online information and services. See April 25, 2011 and Sept. 12, 2011 editions of This Week in Telecom. The Grand Prize of $30,000 went to YAKB.us, a real-time bus notification system that uses voice and SMS. Other winners included SMS apps that link residents to local food and job opportunities. The full list is available here.
• Reply Comments on the Southern Company Services, Inc. Petition for Clarification or Reconsideration of the FCC Open Internet Order are due December 27, 2011. The Federal Register publication is available here. Southern’s Petition 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

• After opposing it on Friday, December 9, 2011, AT&T reversed course and agreed on Monday, December 12 to join the Department of Justice motion to postpone the antitrust case seeking to enjoin the AT&T/T-Mobile merger. Judge Huvelle granted the joint motion on December 12 and put the case on hold, including the hearing that was set for December 15 and the February 2012 trial date. The court vacated “all pretrial and trial deadlines” in the case, and ordered AT&T and Deutsche Telekom to file a status report by January 12 “describing the status of their proposed transaction, including discussion of whether they intend to proceed with the transaction at issue in this litigation, whether they intend to proceed with another transaction, the status of any related proceedings at the Federal Communications Commission, and their anticipated plans and timetable for seeking any necessary approval from the [FCC].” United States v. AT&T Inc., No. 1:11-cv-01560 (D.D.C.).

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

Legislative Outlook

• On December 13, 2011, the House passed HR 3630, the Middle Class Tax Relief & Job Creation Act of 2011, by a vote of 224-14. As reported above in Broadband News, the bill includes the Jumpstarting Opportunity with Broadband Spectrum (“JOBS”) Act that authorizes the FCC to conduct incentive auctions of spectrum. To view the vote record, click here. To view the House section-by-analysis of HR 3630, click here.

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

Upcoming Events

• The Wireline Committee of the Federal Communications Bar Association will conduct a CLE seminar titled “Understanding USF and ICC Reform” on January 19, 2012, from 6:00 to 8:15 pm Eastern. Location TBD. For more information, 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, including: