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 next FCC Open Meeting will be held December 13, 2011, at 10:30 am Eastern. The Tentative Agenda contains one item, a Report and Order implementing the Commercial Advertisement Loudness Mitigation Act (CALM Act). To view the Tentative Agenda, click here.
• Comments on the FCC Notice of Proposed Rulemaking on Next-Generation 911 (NG911) service are due December 12, 2011, and Reply Comments 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 November 29, 2011, the FCC Wireless Telecommunications Bureau released an order allowing AT&T and T-Mobile to withdraw their request for transfer of control. As previously reported (see November 28 edition of This Week in Telecom), the decision to withdraw the merger request came as word spread that the FCC would designate the application for hearing before an Administrative Law Judge. The Bureau also released the Staff Report that had been prepared as part of the recommendation for hearing. The Staff Report describes “serious concerns” about the merger, including that it may have anticompetitive effects in 99 of the 100 top wireless markets in the country. Staff concludes that AT&T and T-Mobile have failed to satisfy their burden of demonstrating that the merger is in the public interest. The order permitting withdrawal and the Staff Report are available here.
• Responses to the FCC Wireless Telecommunications Bureau call for comments on the state of competition in the mobile wireless industry are due today, December 5, 2011, and Reply Comments 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

• On November 29, 2011, the FTC announced that Facebook has agreed to settle charges that it deceived consumers by telling them they could keep their Facebook profile information private, but repeatedly allowing it to be shared and made public. The proposed settlement requires Facebook to implement several privacy measures, including giving clear and prominent notices and obtaining users’ express consent before their information is shared beyond the privacy settings they have established. In addition, the settlement requires Facebook to obtain biennial, independent, third-party audits for the next 20 years certifying that it has a privacy program in place that meets or exceeds FTC requirements. More information 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. The announcement regarding the extended deadline 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

• At its November 30 Open Meeting, the FCC adopted rules to support a new generation of wireless medical devices that could be used to restore functions to paralyzed limbs. As described in the November 28 edition of This Week in Telecom, Medical Micropower Networks (MMNs) are low-power wireless networks implanted in the body that use electric currents to activate and monitor nerves and muscles. The rules were adopted in response to a petition from the Alfred Mann Foundation which has built and tested prototype MMN systems. The rules will allow these new types of devices to access 24 megahertz of spectrum in the 413-419 MHz, 426-432 MHz, 438-444 MHz, and 451-457 MHz bands on a secondary basis. The Report and Order 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 November 28, 2011, BellSouth Telecommunications, LLC d/b/a AT&T Florida filed with the Florida Public Service Commission a motion to dismiss the complaint of FLATEL, Inc., a Florida-based telecommunications reseller. FLATEL filed its complaint on November 7, 2011, alleging that AT&T failed to offer wholesale promotional discounts included in the parties’ interconnection agreement (ICA), thereby discriminating against both FLATEL and its end user customers. FLATEL asserts that AT&T has overcharged it $326,924 since 2008. AT&T, however, asserts in its motion that it is implementing the “plain and unambiguous” terms of the parties’ ICA. It requested permission to disconnect FLATEL for its failure to make full payment of the disputed amounts, stating that “FLATEL’s allegations do nothing to alter the fact that the plain language of the Agreement requires it to pay all amounts it is billed, even if it disputes those amounts. To require AT&T Florida to wait indefinitely for FLATEL to pay its bills in full would require AT&T Florida’s stockholders, in essence, to continue subsidizing a non-paying wholesale customer like FLATEL.” Docket No. 110306-TP.

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

• 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 Fourth Quarter of 2011 is 15.3%. 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

• At its November 30 Open Meeting, the FCC reviewed a presentation by the Broadband Adoption Taskforce that highlighted efforts to increase broadband adoption. The Taskforce was created by Chairman Genachowski in June 2011, see June 20 edition of This Week in Telecom, with the goal of increasing broadband adoption in the United States. The presentation highlighted the challenges of broadband adoption and identified many of the initiatives taking place to increase adoption, such as ‘Connect to Compete’ in which private companies have promised to provide discounted broadband service and computers to low-income households. See November 14 edition of This Week in Telecom. The presentation 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 November 28, 2011, the Supreme Court heard oral argument in Mims v. Arrow Financial Services, LLC regarding federal court jurisdiction under the Telephone Consumer Protection Act (“TCPA”). TCPA states that lawsuits may be brought in state court “if otherwise permitted by the laws or rules of a state.” Because the statute is silent on federal court jurisdiction, several federal courts of appeals have found that only state courts have jurisdiction over TCPA claims. The Supreme Court must decide whether silence on federal court jurisdiction in TCPA means that there is no federal court jurisdiction. During the argument, Justices Kennedy and Breyer suggested that Congress intended the statute to facilitate small claims in the state courts in order to avoid more expensive federal cases. Justice Kagan, however, questioned why the Court should depart from the “background rule” that federal courts have jurisdiction over a federal question unless Congress specifically divests the courts of jurisdiction. Several of the Justices called the statute “odd” due to the phrase “if otherwise permitted by the laws or rules of a state.” The transcript of the oral argument is available here. No. 10-1195.

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

Legislative Outlook

• Rep. Greg Walden, R-Ore., Chair of the House Commerce Committee, and Rep. Fred Upton, R-Mich., Chair of the Communications Subcommittee, have sent a letter to FCC Chairman Genachowski seeking information about the process by which the recent Universal Service order (FCC 11-161) was adopted. The Chairmen express concerns that, as was alleged of the December 2010 Open Internet Order, a “data dump” occurred in the Universal Service docket just before the sunshine period closed, and that the “practice of negotiating up to, and sometimes after, the Commission’s open agenda meeting appears to have reached an apex in the universal service proceeding.” The letter, available here, requests a response by December 12, 2011.
• As previously reported, the Senate Commerce Committee held a hearing on November 30 regarding the two nominees to the FCC, Ajit Pai and Jessica Rosenworcel. Sen. John “Jay” Rockefeller IV, D-W.Va., Chair of the Committee, stated that “I expect both nominees to focus on closing the digital divide that exists in our country and bring much-needed, expanded access to all Americans, including rural Americans who currently are underserved.” His full statement is available here.
  
  In a written statement, Ranking Member Sen. Kay Bailey Hutchison, R-Tex., said of the nominees “I have never seen two who have the requisite experience  that these two both have on the FCC and on the Senate staffs.” She noted, however, that “the overregulation that we are seeing is going to stifle innovation in the most dynamic sector of our economy today, which is the technology sector.” Sen. Hutchison’s full statement is available here.

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

Upcoming Events

• The Federal Communications Bar Association will hold its 25th Annual Chairman’s Dinner on December 8, 2011, at the Washington Hilton, 1919 Connecticut Avenue, NW. The cocktail reception begins at 6:00 pm EDT, with dinner at 7:30 am EDT. To register, 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: