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.

Federal Communications Commission (FCC) Announcements

• The FCC has released its final Agenda for the Open Meeting to be held February 8, 2011. The Agenda contains three Notices of Proposed Rulemaking which cover intercarrier compensation and Universal Service reform, the elimination of reporting requirements regarding Open Network Architecture and Comparably Efficient Interconnection, and the streamlining of FCC data collection. The Data Innovation Initiative presentation has again been rescheduled. To view the Agenda, click here.
• The Notice of Inquiry in ET Docket No. 10-237, Promoting More Efficient Use of Spectrum Through Dynamic Spectrum Use Technologies, has been published in the Federal Register. Comments are due February 28, 2011, and Reply Comments are due March 28, 2011. Our summary of this item, released December 1, 2010, is available here. To view the Notice of Inquiry, click here. To view the Federal Register entry, click here.
• The FCC has released a Notice of Proposed Rulemaking seeking comment on proposed changes to the Commission’s Registration System, or “CORES”. Comments are due 30 days after publication in the Federal Register, and Reply Comments are due 15 days thereafter. MD Docket No. 10-234. To view the item, click here.
• Reply Comments in the “bill shock” proceeding are due tomorrow, February 8, 2011. CG Docket Nos. 10–207 and 09–158, Empowering Consumers to Avoid Bill Shock; Consumer Information and Disclosure, Notice of Proposed Rulemaking, FCC 10–180 (rel. Oct. 14, 2010). More information may be found here.

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

Federal Trade Commission (FTC) Developments

• On February 3, 2011, the FTC announced that it has reached tentative settlement agreements with three credit report resellers that allegedly failed to take reasonable steps to protect consumers’ personal information. Credit report resellers buy credit reports from reporting agencies and combine them into special reports, which they then sell to mortgage brokers and other creditors. These three resellers allegedly failed to implement basic security measures to protect the credit reports and, as a result, hackers accessed more than 1,800 credit reports without authorization. The settlements require the resellers to implement comprehensive cyber-security programs and to obtain independent audits of their cyber-security programs every other year for 20 years. The settlement agreements will be subject to public comment through March 7, 2011, after which time the Commission will decide whether to make the proposed settlement agreements final. In re SettlementOne Credit Corp., FTC File No. 082-3208; In re ACRAnet, Inc., File No. 092-3088; In re Fajilan & Assocs. Inc., File No. 092-3089.
  
  A copy of the FTC’s press release can be found here.
  
  Comments on the SettlementOne Credit Corp. settlement may be submitted electronically here.
  
  Comments on the ACRAnet, Inc. settlement may be submitted electronically here.
  
  Comments on the Statewide Credit Services settlement may be submitted electronically here.
• The FTC will host a forum on May 11, 2011, in Washington, DC, to examine how the government, businesses, and consumer protection organizations can work together to prevent consumers from receiving unauthorized third-party charges on their phone bills — a practice known as “cramming.” The forum, which will be held at the FTC’s satellite building conference center, will be open to the public. Any individuals interested in appearing on the panel must submit requests to the FTC no later than March 4, 2011. The FTC also invites interested parties to submit comments on cramming prevention through the FTC’s online comment form no later than April 27, 2011. The FTC’s Press Release on the Cramming Forum can be found here. Comments can be submitted to the FTC here.

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

Developments in Intercarrier Compensation

• On February 2, 2011, AT&T Communications of the Midwest, Inc. petitioned the Iowa Utilities Board (IUB) to suspend and investigate the intrastate access tariff filed by Aventure Communication Technology, LLC on January 19 of this year. AT&T’s petition closely tracks petitions filed at the IUB on February 1, 2011 by Qwest Corp. and the Office of Consumer Counsel. AT&T argues that Aventure’s tariff should be rejected because “all of Aventure’s rates” are “unjust and reasonable on at least two grounds: (1) that its mirrored rates assume it has low volumes of traffic in rural areas and that it is entitled to implicit subsidies built into those rates; and (2) that it is a known traffic pumper whose business model is aimed primarily at gaming the access system, and it has very few, if any local exchange end user customers actually located in rural Iowa.” AT&T also challenges many of the definitions in Aventure’s tariff, including the terms “constructive order”, “end user”, and “end user premises”. AT&T further requests that the IUB analyze “the actual network facilities and costs associated with providing local exchange service to its local exchange customers actually located in Iowa.” Docket TF-2011-0012.
• The New York Public Service Commission (NYPSC) will hold its first meeting in its proceeding to examine the intrastate switched access rates of Verizon-New York tomorrow, February 8, 2011. Sprint had petitioned the NYPSC to examine the rates, claiming that Verizon’s intrastate rates are four times higher than its interstate rates. In the meeting notice, the NYPSC stated that “the justification for continuing intrastate access charges at current levels should be re-examined … . Because we have not considered access charges for many years, and significant changes have transformed the market and regulatory environment, the time has come to reassess Verizon’s intrastate access charges.” Docket No. 09-M-0527.

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

Compliance Notes

• The deadline for filing annual certificates of compliance with the Customer Proprietary Network Information (CPNI) rules is March 1, 2011. 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 2010 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 its new web-based application, which can be found here. Filers may also file certificates in hard copy through the Secretary’s office. More information about the filing can be found in the Public Notice here.
• The Universal Service contribution factor for the first quarter of 2011 will be 15.5 percent. A copy of the notice can be found here. DA 10-2344.

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

Stimulus This Week

• The National Telecommunications and Information Administration (NTIA) has met with House Republicans in order to secure ongoing oversight funding for the Broadband Technology Opportunities Program (BTOP) through the end of the 2011 fiscal year. NTIA obtained $40.6 million under a Continuing Resolution that expires on March 4, 2011. In the State of the Union address, President Obama proposed a freeze on non-security discretionary spending. It is expected that House Republicans want to further reduce spending levels to Fiscal Year 2008 levels. The NTIA measure is expected to be voted on during the week of February 14, 2011.

Please contact Ross Buntrock, Jon Canis, Alan Fishel, or Jeffrey Rummel (contact information below) for further information regarding stimulus funding.

Broadband News

• The FCC has moved to dismiss both the Verizon and the MetroPCS appeals of the Open Internet Order (see January 31 edition of This Week in Telecom), arguing that the appeals, which rest on section 402(b) of the Communications Act, are premature because the Order has not been published. As of the time of this release, the motions have not been resolved. On February 2, 2011, the US Court of Appeals for the DC Circuit denied Verizon’s motion to assign the same panel of judges that decided Comcast. On February 3, 2011, MetroPCS filed a motion to consolidate the two appeals.
• On January 5, 2011, the FCC announced the Open Internet Challenge designed to encourage the public to create applications to monitor Internet providers’ compliance with the Open Internet rules and to encourage research into the same. One winner will get a trip to Washington, DC and will be honored at an FCC Chairman’s reception. The submission deadline is June 1, 2011, and winners will be chosen by a public vote and a panel of experts. More information can be found here.
• On February 9, 2011, the FCC will hold a “Broadband Acceleration Conference” designed to bring together leaders from federal, state, and local government and private companies to discuss removing barriers to broadband buildout. Topics will include removing regulatory barriers involving rights-of-way, pole attachments, and tower siting, and how smart grids and other technologies might spur broadband growth. Speakers include: Phil Weiser, Senior Advisor to the National Economic Council, Director for Technology and Innovation; Peter Appel, Administrator, Research and Innovative Technology Administration (RITA), Department of Transportation; and Scott Blake Harris, General Counsel of the Department of Energy. The conference will start at 11:00 a.m. Eastern in the Commission Meeting Room (TW-C305), 445 12th Street, S.W., Washington, DC. More information is available here.
• This past week saw extensive discussion of possible metered Internet pricing in Canada which the Radio-television and Telecommunications Commission (CRTC) recently approved for Bell Canada. The usage-based pricing system would have capped data usage at 25GB, down from 200GB, and would have cost more than the previous unlimited plans. This system would have forced independent Internet service providers to put similar pricing systems in place, because they rely on Bell Canada for last-mile connections. However, in response to numerous consumer complaints about the potential higher price for Internet access, the Canadian government has requested that the CRTC reverse its decision. The usage-based billing could return in some form, because the rules are only suspended and under review, but the CRTC is still open to “economic ways to discipline the use of the Internet.” More information can be found here, and here.

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

Telecom Privacy News

• At least two privacy bills are expected to be introduced this year in Congress. Sen. Ron Wyden, D-Ore., has indicated that he soon will introduce a bill that would require law enforcement to demonstrate probable cause and obtain a warrant in order to track an individual’s location through GPS and mobile phone devices. In discussing the bill, Wyden said, “I think that a lot of people have not really put their arms around the dimensions of this, the fact that everybody’s got a handheld electronic device, a cell phone, a GPS system. Everybody’s carrying them around everywhere and probably aren’t thinking that much about the fact that someone may be keeping tabs on them.” Rep. Bobby Rush, D-Ill., has indicated that he plans to reintroduce an online privacy bill that he introduced last year and that had won support from some tech firms, including eBay, Microsoft and Intel. Rush’s bill would allow website owners to use information collected about users as long as they provide clear notice about the information being collected and its intended use. The bill would also require site owners to give consumers an opportunity to “opt out” from having their online information used. In addition, the bill would authorize the FTC to approve a self-regulatory program for companies covered by the legislation and allow those companies to obtain a safe harbor from some of the bill’s provisions.
• Reps. Joe Barton, R-Texas, and Ed Markey, D-Mass., Co-Chairs of the House Bi-Partisan Privacy Caucus, have asked Facebook for more information about the company’s plan to make “users’ addresses and mobile phone numbers available to third-party websites and applications developers,” a decision that the company now will postpone while it considers the best way to implement the plan. The letter to Facebook CEO Mark Zuckerberg asked “what user information will be shared with third party application developers” and what features will be available to ensure users’ privacy. The letter also questioned whether Facebook has provided adequate notice to its users about its plans to make this information available to third parties and what risks that the new feature could pose to children and teenagers. Reps. Barton and Markey previously sought information from Facebook about the collection and dissemination of personally identifiable information by various third-party applications.

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

In the Courts

• On January 20, 2011, a New York federal trial court found that the Village of East Hills violated the Communications Act when it denied MetroPCS’s permit and variance applications to place antennas on a commercial building that already contained similar antennas of two other wireless carriers. As the court explained, “aside from a lapse in time between applications of the three (3) wireless communications providers that they approved and Metro, the [zoning board] has not articulated in what way Metro’s proposed antennas create different visual, aesthetic, or safety concerns to the ones they have already approved.” Continuing the developing trend of cases finding that local zoning boards may not deny siting applications simply because one or more carriers are providing competent service in the area, the court ruled that “the [zoning board’s] finding that Metro has not established a significant coverage gap on the ground that other wireless providers already have service in that area is not supported by substantial evidence.” The court ordered the Village’s zoning board to grant MetroPCS’s applications. MetroPCS New York, LLC v. Village of East Hills, No. 09-cv-4636 (EDNY).

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

Legislative Outlook

• On February 3, 2011, the Senate Judiciary Committee approved S. 23, the Patent Reform Act of 2011, introduced by Sen. Patrick Leahy, D-Vt., on January 25, 2011. The legislation would, among other things, adopt a first-to-file rule for obtaining a patent rather than the current first-to-invent rule. The House does not yet have a companion bill. For more information, click here.

Upcoming Events

• The Federal Communications Bar Association is hosting a luncheon with Commissioner Michael Copps on February 15, 2011. For more information or to register, click here.

For further information, please contact any of our attorneys in the Arent Fox Telecommunications Group, including: