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 three FCC Open Meetings will be held March 21, April 26, and May 16, 2012. We will provide the Tentative Agendas as they are released.
• 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 when (1) it is acting as a long-distance carrier, and 2) it 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

• On March 28 and 29, 2012, the FCC Emergency Access Advisory Committee will hold an exhibition of “text-to-911” technologies. The event will be held in the Technology Experience Center at that FCC’s headquarters. It will profile existing and potential solutions that allow persons with disabilities to interact with emergency service providers. In December 2011, the Advisory Committee delivered a report to the Commission with recommendations aimed at ensuring that next-generation 911 services are available to persons with disabilities. For more information, click here.
• T-Mobile has announced that it is reinvesting the $3 billion breakup fee it got from AT&T to do an initial rollout of LTE next year. According to reports from an analysts’ call, T-Mobile will invest $4 billion in network modernization and LTE deployment over the next three years. The buildout will also use the additional spectrum that T-Mobile received from AT&T as part of the breakup, also the company is also planning to acquire additional spectrum itself.

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 22, 2012, the National Association of Attorneys General (NAAG) sent a letter signed by 36 state and territorial Attorneys General to Google CEO Larry Page outlining their “strong concern” over Google’s new privacy policy, which it claims will allow for greater information sharing between its products. NAAG believes that Google’s new privacy policy fails to provide consumers a meaningful “opt-in” or “opt-out” alternative. The letter states, in part, that “the policy appears to invade consumer privacy by automatically sharing personal information consumers input into one Google product with all Google products. Consumers have diverse interests and concerns, and may want the information in their Web History to be kept separate from the information they exchange via Gmail. Likewise, consumers may be comfortable with Google knowing their Search queries but not with it knowing their whereabouts, yet the new privacy policy appears to give them no choice in the matter, further invading their privacy.” Google’s new privacy policy is scheduled to go into effect on March 1, 2012. The Attorneys General have requested a meeting with Mr. Page as soon as possible. The NAAG letter is available here.
• On February 23, 2012, the Obama Administration presented what it is calling “The Consumer Privacy Bill of Rights” that outlines its policy for protecting online privacy in the absence of federal legislation. The proposal is designed to give consumers more control over how their personal data is used and to help businesses build trust with consumers. The White House also has enlisted the help of the Commerce Department to begin meeting with companies, privacy advocates, and others to develop policies based on the plan.
  
  The White House also announced that Google, Yahoo, Microsoft, and AOL have agreed to implement “Do Not Track” technology and provide consumers with more control over their online privacy. This commitment will be subject to FTC enforcement. Among the “rights” outlined in the “Consumer Privacy Bill of Rights” are “individual control”, “transparency”, “security”, and “accountability”. It is available here.

Please contact Ross Buntrock, Alan Fishel, Stephanie Joyce, or Stephen Thompson (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 21, 2012, the Colorado Public Utilities Commission (CO PUC) issued an emergency order capping intrastate switched access charge rates and also capping the state’s High Cost Support Mechanism (HCSM) fund in reaction to the FCC Intercarrier Compensation/Universal Service Reform Order (FCC 11-161). The CO PUC stated that it “would be contrary to the public interest” to comply with the notice and comment requirements of a standard rulemaking proceeding, and that “immediate adoption of the rules is imperative and necessary to limit potential increases to both the HCSM fund and access rates as a result of the requirements of the FCC Order.” The order immediately caps all local exchange carrier switched access rate elements at existing levels, but does not affect “any required implementation of rate reductions pursuant to federal requirements.” The order also caps the HCSM fund at $54,000,000 annually. The emergency rules will remain in effect until permanent rules are issued or for 210 days, whichever period is shorter. Docket No. 12R-148T.

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

• 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.  The FCC’s Enforcement Bureau issued a Public Notice reminding carriers and other entities of the filing requirement on February 16, 2012, which may be found here.
  
  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 received regarding CPNI. The FCC encourages filers 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. Filers may also file certificates in hard copy through the Secretary’s office. (DA 12-170, Enforcement Advisory No. 2012-01).
• 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

• The FCC has announced the start of the 2012 Measuring Broadband America testing process and seeks volunteers. The previous test measured in-home broadband speeds and found that the majority of service providers were delivering performance approaching or exceeding the levels they advertised to their customers. But the test also revealed service providers that were not meeting their advertised speeds. For this new round, the FCC will release two Measuring Broadband America reports in 2012 and will expand the measurements of the studies to include more technologies and new regions of the country. More information is available here. The public notice announcing the study is available here.
• As Google’s Kansas City fiber project begins construction, see February 13 edition of This Week in Telecom, recent regulatory filings by Google are a good sign that it will offer Internet Protocol TV along with the previously-announced 1 Gigabyte-per-second broadband service.  Google has applied at the FCC for a receive-only satellite station in Council Bluffs, Iowa, which is about 200 miles from the broadband project and close to one of Google’s data centers.  Google has also applied for a video franchise license with both Kansas and Missouri regulatory authorities. Taken together, these filings strongly indicate that Google will offer some form of IPTV in conjunction with the fiber project, with satellite headends in Iowa or elsewhere. At this time, Google has not provided any information about IPTV in relation to the broadband project.

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

In the Courts

• On February 21, 2012, a Comcast subsidiary filed the second patent-infringement lawsuit in as many weeks against Sprint Nextel and certain Sprint affiliates. Comcast claims that Sprint’s mobile messaging services violate Comcast Patent No. 7,012,916 that covers a method and apparatus for accessing communication data relevant to a target entity by a number string. Comcast also claims that Sprint is violating its Patent No. 7,206,304 that covers a method and apparatus for determining a telephone number for accessing a target entity. Comcast also claims that Sprint is violating two more of its telecommunications-related patents (Nos. 7,903,641 and 6,873,694) through its Any Mobile, Anytime wireless plans. These suits come several months after Sprint sued Comcast, Cox, Time Warner, and Cable One for allegedly violating Sprint’s patents relating to VoIP telephony. Comcast IP Holdings I LLC v. Sprint Commc’ns Co. LP, No. 1:12-cv-00205 (D. Del.).

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

Legislative Outlook

• The House Subcommittee on Oversight and Investigations will hold a hearing titled “Critical Infrastructure Cybersecurity: Assessments of Smart Grid Security” tomorrow, February 28, 2012, at 10:15 am in 2322 Rayburn House Office Building. For more information, click here.
• Rep. Mary Bono Mack, D-Cal., Chair of the House Subcommittee on Trade and Manufacturing, issued a statement shortly after the President’s “Privacy Bill of Rights” was released, noting that “Protecting consumer privacy online and preserving American innovation are not mutually exclusive, but they do require a very careful juggling act. I am committed to achieving both.” To read the full statement, click here.
• Sen. John “Jay” Rockefeller IV, D-W.Va., Chair of the Senate Commerce Committee, also issued a statement on the “Privacy Bill of Rights”, emphasizing that “it is absolutely crucial that, as we move forward in an evolving online and mobile world, consumer choice is protected and preserved.” The full statement is available here. Just the previous Friday, Sen. Rockefeller had issued a statement that “According to press reports, Google circumvented consumer choice and may have paved the way for third-party ad networks — including Google’s own DoubleClick — to track consumers against their will. ... I fully intend to look into this matter[.]”

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.