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 Final Agenda for the next FCC Open Meeting on February 15, 2012, has been released. It contains the three items previously noticed: a Report and Order adopting rules for “robocalls”; a Notice of Proposed Rulemaking on streamlining cellular service licensing rules; and a Report and Order on outage reporting requirements for interconnected Voice-over-Internet Protocol (VoIP) service. The meeting will be held in Room TW-C305 at 10:30 am Eastern at the FCC’s headquarters. To view the Final Agenda, click here.
• Comments on the CenturyLink Petition for Waiver from portions of the FCC Intercarrier Compensation/Universal Service Reform Order (FCC 11-161) are due February 29, 2012, and Reply Comments are due March 15, 2012. The Order establishes rules designed to eliminate “Phantom Traffic” — telephone traffic that lacks information necessary for carriers to determine how that traffic is classified — and determines what intercarrier charges apply to it. Specifically, it requires that carriers include the Calling Party Number, and the Charge Number if it is different, whenever they hand off a call to another carrier. On January 23, CenturyLink filed a Petition for Limited Waiver, asking to be exempted from these requirements (1) in some cases when CenturyLink is acting as a long-distance carrier, and 2) in two cases in which CenturyLink uses Multi-Frequency signaling instead of SS7. A copy of the petition can be found here. The Public Notice announcing the comment deadlines can be found here.

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

The Mobile Market

• The House and Senate both have passed the Federal Aviation Authority re-authorization bill that contains a requirement for a study on the possible use of cellphones during flights. See February 6 edition of This Week in Telecom. The bill awaits President Obama’s signature, which presumably will occur by February 17 when the current authorization expires.
• According to recent reports, Google’s bid to acquire the smartphone maker Motorola Mobility for $12.5 billion is about to receive approval from the U.S. Department of Justice. The merger, which has been under antitrust review since August 2011, would allow Google to acquire Motorola’s substantial intellectual property portfolio and get more control over the Motorola handsets that run Google’s Android operating system. The European Commission (EC) also must clear the deal and has stated that it will announce the decision today. Reports are that the EC will approve the merger.

Please contact Ross Buntrock, Michael Hazzard, or G. David Carter (contact information below) for further information.

Federal Trade Commission (FTC) and Privacy Regulation

• On February 8, 2012, the Electronic Privacy Information Center (EPIC) filed suit against the FTC in the U.S. District Court for the District of Columbia regarding Google’s plans to make changes in its terms of service that will combine the privacy policies and user data from over 60 different Google products and services. See February 6 edition of This Week in Telecom. EPIC is seeking injunctive relief to require the FTC to act prior to March 1, 2012, when Google’s planned changes will go into effect. EPIC alleges that the proposed changes violate the terms of the consent order that Google entered into with the FTC on October 13, 2011. The consent order was the result of a complaint that EPIC brought to the FTC in February 2010 regarding Google Buzz and a similar attempt by Google to combine user data without user consent. On February 9, 2012, Judge Amy Berman Jackson granted the parties’ request for an accelerated briefing schedule on EPIC’s motion. EPIC v. FTC, 1:12-cv-00206-ABJ (D.D.C.).
  
  The EPIC complaint is available here.
  
  The motion for injunctive relief is here.
  
  More information regarding the settlement between Google and the FTC is available here.

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

New Markets: SmartGrid and E-Health

• The Michigan Public Service Commission (MI PSC) has opened an investigation into the deployment of smart meters by electric utilities. Noting that consumers and municipalities have expressed concern about smart meters, the MI PSC has ordered all regulated electric utilities to submit information to the MI PSC by March 16, 2012, on a number of issues, including (1) the utility’s existing plans for deployment of smart meters in its service territory, (2) any scientific information known to the utility that bears on the safety of smart meters, and (3) an explanation of the steps that the utility intends to take to safeguard the privacy of the information gathered. Comments are due April 16, 2012. The MI PSC order can be found here.
• Applications for the Department of Energy (DOE) “Smart Grid Data Access” Funding Opportunity Announcement (FOA) are due March 1, 2012. DOE 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. 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 February 3, 2012, YMax Communications Corp., a competitive local exchange carrier (CLEC), filed an ex parte letter with the FCC seeking confirmation that it is properly interpreting the FCC’s Intercarrier Compensation/Universal Service Reform Order (FCC 11-161) with respect to the permissible charges that a LEC can assess on VoIP-PSTN traffic. YMax explains that the order’s statement that the new VoIP-PSTN rules “do not permit a LEC to charge for functions performed neither by itself [n]or its retail service provider partner,” combined with the order’s citation to the decision in AT&T Corp. v. YMax Communications Corp., might lead some interexchange carriers to dispute a CLEC’s ability to charge for end-office switching when it provides wholesale service to a VoIP-provider customer. The FCC ruled in AT&T that YMax does not provide the functional equivalent of the incumbent LEC’s service and therefore may not charge the ILEC’s full benchmark switched access rate.
  
  The FCC previously has prohibited CLECs from applying the ILEC’s full rate when the CLEC provides only a portion of the switched access services. In FCC 11-161, the FCC created an exception to this rule: when the CLEC is listed in the database of the Number Portability Administration Center as providing the calling party or dialed number, the CLEC may assess a rate equal to the rate that would be charged by the competing ILEC for all exchange access services required to deliver interstate traffic to the called number. 47 C.F.R. § 61.26(f). According to YMax, “it seems beyond dispute that whenever a CLEC is providing ‘some portion’ of the interconnection required to complete VoIP-PSTN call and is listed in the NPAC database,” the CLEC is permitted to assess the full benchmark rate. YMax therefore requested that the FCC confirm its interpretation as correct “in order to avoid costly and disruptive disputes.”

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

• Today is the deadline for LECs to update their federal switched access tariff rates. Under the FCC’s new access tariff rules adopted November 18, 2011 (FCC 11-161), see December 5 client alert here, 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.
  
  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).
• The deadline for filing annual certificates of compliance with the Customer Proprietary Network Information (CPNI) rules is March 1, 2012. The FCC includes the following types of carriers in its non-exhaustive list of entities that must file certificates: telecommunications carriers; interconnected Voice over Internet Protocol (VoIP) providers; commercial mobile radio service (CMRS) providers; interexchange carriers (IXCs); prepaid calling card providers; resellers; and calling card providers. Certificates must contain an officer’s signature attesting that he or she has personal knowledge that the company has established procedures to protect CPNI and must provide a description of those procedures. Further, the company must describe any actions taken against data brokers in 2011, and any customer complaints regarding CPNI.
  
  The FCC encourages companies to file their certificates electronically via either the Electronic Comment Filing System (ECFS), identifying EB Docket No. 06-36, or through the FCC’s web-based application, which can be found here. Certificates also may be filed in hard copy with the Secretary’s office.
• The Local Competition and Broadband Report, commonly known as FCC Form 477, is also due on March 1, 2012. This filing applies to: facilities-based providers of broadband connections to end user locations; providers of wired or fixed wireless local exchange telephone service; providers of interconnected Voice over Internet Protocol (interconnected VoIP) service (including both service retailers and service wholesalers); and facilities-based providers of mobile telephony service. FCC Form 477 collects data concerning broadband connections to end user locations, wired and wireless local telephone services, and interconnected Voice over Internet Protocol (VoIP) services, in individual states and territories, which will be used to describe competition for local telecommunications services and broadband deployment. Filers must report data as of December 31, 2011. More information about FCC Form 477, including filing instructions, may be found here and here.
  
  Filers must use 2010 Census Tract Data in this filing. The Public Notice describing this requirement can be found here. (DA 11-1937, WC Docket No. 07-38)
• 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 February 6, 2012, Google announced that it is finally laying fiber for its long-planned 1-gigabyte-per-second fiber network in Kansas City. First announced generally in February 2010, and later with Kansas City identified as the final choice of communities in April 2011, construction depended on obtaining a number of regulatory approvals that apparently took longer than expected. Google’s blog post announcing the start of construction does not reveal the date by which it expects to offer service. Prior blog posts pegged early 2012 as the ready date, but that may no longer be achievable. The blog post is available here.
• On February 15, 2012, the FCC is participating in a series of workshops at the Washington D.C. Convention Center focused on broadband tools for small businesses. Commissioner Clyburn will speak. The workshops are being hosted by OCBO and the E-Business Now Consortium, the Small Business Administration, the Service Corps of Retired Executives, and the Maryland Hispanic Chamber of Commerce. More information 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

• Tomorrow, February 14, 2012, the D.C. Circuit Court of Appeals will hear oral argument in Blakeney Communications’ challenge to the FCC’s May 2011 order that, as Blakeney describes in its brief, “involves the FCC’s sua sponte waiver of a well-established deadline for submitting an application for a license to cover a construction permit. The waiver of that deadline benefited Intervener Clear Channel, whose late-filed application was accepted and granted; the waiver resulted in the summary dismissal of a mutually exclusive application filed by Blakeney two days before the Clear Channel application in question.” The FCC defends its action on the ground that the waiver promoted the public interest, because Clear Channel had already performed the construction to which the slightly late filing related: “The waiver here served the policy underlying that rule — to promote construction and operation of FM stations within the applicable three-year period — because Clear Channel in fact had completed construction and had commenced operation under the Commission’s grant of program test authority within that period. The Commission reasonably concluded that Clear Channel’s failure to meet the deadline for filing the accompanying application form — a deadline it missed by only two days — should not be fatal under the circumstances.” Judges Henderson, Rogers, and Brown make up the panel, and they will hear 10 minutes of argument from each side. Blakeney Commc’ns, Inc. v. FCC, No. 11-1203 (D.C. Cir.).

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

Legislative Outlook

• The House Communications Subcommittee will hold a hearing titled “The Budget and Spending of the Federal Communications Commission” on February 16, 2012, at 9:00 am Eastern in 2123 Rayburn House Office Building. For more information, click here.
• Congress’s inquiry into Google’s plans to merge privacy policies continues. See February 6 edition of This Week in Telecom. Following a briefing with Google about the plan, House Manufacturing and Trade Subcommittee Chair Mary Bono Mack, R-Cal., and Ranking Member G.K. Butterfield, D-NC, sent a letter to Google seeking additional information on several issues, including how Google implements user requests to delete information and the standards Google applies for ensuring consumer consent. The letter requests a response by February 21, 2012.
• The House Communications Subcommittee has released its 2012 legislative agenda. It focuses on stimulating job growth and protecting the communications network from attack. The read the full statement on the agenda, click here.

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

Upcoming Events

• The Federal Communications Bar Association will hold its 7th Annual Privacy and Data Security Symposium, together with the ABA Communications Law Forum, on March 21, 2012, from 2:00 to 6:00 pm Eastern at Arnold & Porter LLP, 555 12th Street NW, Washington, DC. CLE credits will be available. 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.