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

• The FCC has announced the dates of its next four Open Meetings: January 31, February 15, March 21, and April 26, 2012. The Tentative Agenda for the January Open Meeting has not yet been released.
• 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

• On December 22, 2011, the FCC adopted and released the order approving, by a 3-1 vote, AT&T’s acquisition of licenses in the 700 Megahertz D and E blocks currently owned by Qualcomm. The approval came with conditions regarding data roaming and interference, but the Commission did not impose a requirement for AT&T to sell only devices that would be compatible with other lower band spectrum, as other 700 MHz band licensees had urged. The Order does note, however, that the “transaction results in spectrum concentration that raises the potential for competitive harm” and therefore “AT&T may not incorporate the Qualcomm spectrum into its network in such a way as to preclude roaming by a provider that otherwise supports the same primary spectrum ... .” Commissioner Michael Copps dissented, stating that the Order “falls short in identifying and imposing conditions that would tip the deal in favor of the public interest, and it moves us farther down the road toward a wireless duopoly.” The Order, Commissioner Copps’ dissent, and a concurring statement from Commissioner Clyburn may be found 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 December 12, 2011, the FTC, through the Department of Justice, filed a complaint against a group of companies that allegedly made illegal robocalls, called phone numbers on the National Do Not Call Registry, and masked Caller ID information, all in violation of the FTC’s Telemarketing Sales Rule. The complaint seeks civil penalties and injunctive relief. The agency apparently had received tens of thousands of complaints from consumers about these companies. This case marks a further step in the FTC’s efforts against improper telemarketing practices. U.S. v. Roy Cox, Jr., et al., No. 8:11-cv-01910-DOC-JPR (C.D. Cal.). More information is 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 U.S. House of Representatives is considering legislation to enhance smart grid infrastructure security. HR 3674, the Promoting and Enhancing Cybersecurity and Information Sharing Effectiveness Act of 2011 (the “PRECISE Act”), would require the U.S. Department of Homeland Security to identify and mitigate cybersecurity risks to critical infrastructure, including in smart grid networks. The legislation would also establish the National Information Sharing Organization (NISO), a private-sector-controlled, not-for-profit organization to facilitate best practices, provide technical assistance, and enable the sharing of cyber-threat information, all while safeguarding privacy. The text of HR 3674 is available here.
• On December 21, 2011, the Department of Energy (DOE) announced nearly $7 million in research and development funding that will help to reduce the current costs of electric vehicle (EV) chargers by 50% over the next three years. Selected manufacturers will work to improve the development and design of charging equipment with smart charging capabilities that can help alleviate the strain that EVs put on electrical grid capacity. Two of the four selected projects will focus on improving EV chargers that attach to consumers’ homes. The other two projects will focus on chargers used at commercial and public locations where several vehicles may change at once, such as fleets of delivery vehicles. The DOE’s announcement of the funding is available here.
• The European Commission last week established the “eHealth Network,” which will bring together various regulators from member countries to work on “common orientations for eHealth.” The goal for the Network will be to promote interoperability of electronic health systems by adopting guidelines on a minimum set of common data to be included in patient summaries, on methods to enable the use of medical information for public health and medical research, and on common identification and authentication measures to ensure transferability of data in cross-border initiatives. More information about the initiative 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 20, 2011, the South Carolina Public Service Commission (SC PSC) issued a scheduling order for AT&T South Carolina’s complaint against Halo Wireless. AT&T alleges that Halo, which filed for bankruptcy protection after AT&T initiated this action and similar complaints in several other states, was sending AT&T landline-originated traffic but refused to pay terminating access charges. AT&T also alleges that Halo has been manipulating call signaling information to hide the traffic’s true origin and to make it appear as wireless-originated traffic. Halo sought to stay AT&T’s complaint, arguing that all AT&T complaints should be subject to automatic stay under the bankruptcy laws. The bankruptcy court, however, ruled that the automatic stay provisions do not apply to state commission proceedings and remanded the complaint back to the SC PSC. In its scheduling order, the SC PSC ordered Halo to file a motion to dismiss by January 20, 2012, to which AT&T may reply by February 3, 2012. Docket No. 2011-304-C.

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

• Reports that Verizon blocked the Google Wallet application on the Galaxy Nexus smartphone have resulted in several public interest groups demanding that the FCC look into the matter under the Open Internet rules and the conditions on Verizon’s spectrum licenses. Free Press initiated the request for a review, pointing out that Verizon possibly was refusing to allow Google Wallet on the Galaxy Nexus in order to favor Verizon’s own “Isis” mobile payment solution. In a letter to the FCC dated December 13, 2011, Free Press states that “it seems that Verizon Wireless likely is abusing its gatekeeper control over a substantial percentage of the national market for mobile Internet users in order to block a third-party competitor. Such a textbook example of anti-competitive behavior poses significant harm to consumers and to innovation on the Internet.” Stanford Law School professor Barbara van Schewick, Director of the Stanford Center for Internet and Society, also has joined in the call for an investigation in a December 19, 2011 letter to the FCC. Like Free Press, she argues that Verizon is likely violating “the open-devices and open-applications conditions in its legal licenses for part of the 700 MHz spectrum (the so-called ‘C-Block’) over which the company’s LTE network operates.” Free Press’s letter is available here. Professor van Schewick’s letter is available here.
• On December 22, 2011, the FCC issued a Public Notice announcing that the Office of Engineering and Technology (OET) has approved Spectrum Bridge Inc.’s television white spaces database system, which may provide service to devices beginning January 26, 2012. The white spaces database is an important step in utilizing the unused spectrum between TV channels for new wireless devices and services.
  
  OET also has approved a device by Koos Technical Services, Inc. (KTS) which will be the first product permitted to operate in unused frequencies in the TV bands on an unlicensed basis. According to the press release announcing the approval, initial operation will be limited to Wilmington, NC and the surrounding area but will expand nationwide once the FCC is able to process requests for protection of unlicensed wireless microphones at event venues. The press release is available here. The Public Notice is available here.  The approval is available here.
• Reply Comments on the Southern Company Services, Inc. Petition for Clarification or Reconsideration of the FCC Open Internet Order are due tomorrow, 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

• On December 21, 2011, the United States Court of Appeals for the Seventh Circuit granted the State of Indiana’s motion for a stay of a district court’s September 2011 order enjoining the enforcement of its Automated Dialing Machine Statute that prohibits out-of-state robocalls. In its motion, Indiana argued that the “injunction at issue interferes with the residential privacy rights of all Hoosiers, who have come to expect freedom from the harassment of telephonic solicitations and automated messages.” The state also argued that the law properly balances political advocacy interests with personal privacy interests: political campaigns may call households, even those on the no-call list, as long as they do not use autodialers. The stay of the district court’s injunction will last until the Seventh Circuit resolves the appeal, which may not be before the state’s primary election on May 8, 2012. Patriotic Veterans, Inc. v. State of Indiana, No. 11-3265 (7th Cir.).

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

Legislative Outlook

• On December 21, 2011, Rep. Greg Walden, R-Ore., Chair of the House Communications Subcommittee, and Rep. Cliff Stearns, R-Fla., Chair of the House Oversight Subcommittee, sent a letter to FCC Chairman Genachowski expressing “interest in the work the Commission has done since July, especially with regard to the Commission’s backlog of petitions, complaints, and license applications.” A response is requested by January 9, 2012. To read the letter, click here.
• Also on December 21, the entire House Commerce Committee sent a letter to the Internet Corporation for Assigned Names and Numbers (ICANN) urging it “to delay the planned January 12, 2012, date for the acceptance of applications for new gTLDs.” The Committee cited concerns “from hundreds of brands and charities” that the expansion will result in consumer confusion and misleading new domain names. The letter suggested no specific length of delay and did not provide a deadline for ICANN to respond. To read it, 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:

Ross A. Buntrock buntrock.ross@arentfox.com 202.775.5734	Michael B. Hazzard hazzard.michael@arentfox.com 202.857.6029
Jonathan E. Canis canis.jonathan@arentfox.com 202.775.5738	Stephanie A. Joyce joyce.stephanie@arentfox.com 202.857.6081
Alan G. Fishel fishel.alan@arentfox.com 202.857.6450	Jeffrey E. Rummel rummel.jeffrey@arentfox.com 202.715.8479
Adam D. Bowser bowser.adam@arentfox.com 202.857.6126	Jason A. Koslofsky koslofsky.jason@arentfox.com 202.857.8969
Joseph P. Bowser bowser.joseph@arentfox.com 202.857.6102	Katherine Barker Marshall marshall.katherine@arentfox.com 202.857.6104
G. David Carter carter.david@arentfox.com 202.857.8972	Stephen Thompson thompson.stephen@arentfox.com 202.715.8596
Marcia Fuller Durkin durkin.marcia@arentfox.com 212.484.3939