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.

Jump to a Topic:
FCC Announcements l The Mobile Market l FTC and Privacy Regulation l New Markets: Smart Grid and E-Health l Intercarrier Compensation l Compliance Notes l Broadband News l In the Courts l Legislative Outlook l Upcoming Events

Federal Communications Commission (FCC) Announcements

• On January 9, 2013, FCC Chairman Julius Genachowski delivered remarks at the International Consumer Electronics Show (CES) announcing the agency’s intent to designate 195 MHz of spectrum in the 5 GHz band to enhance WiFi service. It will be the largest block of unlicensed spectrum devoted to WiFi since 2003. The FCC Public Notice about the Chairman’s remarks is available here.
• The FCC has released the Tentative Agenda for its next Open Meeting to be held January 31, 2013. It contains two items: a Report and Order to streamline the treatment of Experimental Radio Service, with a particular focus on its use in health care; and a report on the agency’s ongoing efforts to get more access to broadband and wireless spectrum for health care services. To read the Tentative Agenda, click here.

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

The Mobile Market

• On December 12, 2012, the FCC adopted a Further Notice of Proposed Rulemaking regarding the deployment of Text-to-911 and other Next Generation 911 applications. The Notice proposes that all wireless carriers and certain “over the top” providers of interconnected text messaging services should be required to support the ability of consumers to send text messages to 911. In addition, the Notice proposes to require providers to send automated “bounce back” error messages to consumers attempting to text to 911 when the service is not available. The Notice has now been published in the Federal Register, triggering the comment deadlines.
  
  Comments regarding the proposed rule that providers must send an automated message if text-to-911 is not supported are due January 29, 2013, with Reply Comments due February 8, 2013. Comments for all other aspects of the rulemaking are due March 11, 2013, with Reply Comments due April 9, 2013. The Federal Register notice is available here.
• Petitions to deny the application of Softbank Corp. to acquire 70% of Sprint are now due January 28, 2013, oppositions are due February 12, 2013, and replies are due February 25, 2013. The notice regarding the amended pleading cycle 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

• As part of its effort to thwart robocalls, the FTC has announced that it is launching the “FTC Robocall Challenge” – a contest that will award a $50,000 cash prize for the best technical solution for blocking illegal robocalls. The FTC believes the challenge will allow it to “tap into the genius and technical expertise among the public” in order to develop a successful solution to the illegal robocall problem. The award will go to the person, team, or small company (with fewer than 10 employees) that develops the best robocall-blocking technology. Entries will be judged by the following criteria: (1) it must work; (2) be easy to use; and (3) be easy to implement and operate. The FTC Robocall Challenge is free and open to the public. Entries will be accepted until January 17, 2013. More information regarding the FTC Robocall Challenge is available here.

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

New Markets: Smart Grid and E-Health

• On January 9, 2013, Chairman Genachowski stated that the FCC will begin accepting applications from rural health care providers and consortia to receive funding from the $400 million Healthcare Connect Fund as early as this summer. The fund was established to enable rural healthcare providers to use broadband for efficient and effective medical care, including the ability to access specialists at major health centers and to exchange electronic health records. The full announcement is available here.
• The IEEE Power & Energy Society has announced its fourth Conference on Innovative Smart Grid Technologies (ISGT) to be held February 24-27, 2013, in Washington, DC. The ISGT Conference will provide a forum for participants to discuss state-of-the-art innovations in smart grid technologies. According to the announcement, it will feature “plenary sessions, panels, technical papers, and tutorials by international experts on smart grid applications.” Researchers and practitioners from around the world are also invited to submit papers for review and possible presentation at the ISGT Conference. More information about the ISGT Conference 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 January 7, 2013, the Kentucky Public Service Commission (KPSC) issued a final order ruling that Halo Wireless, Inc. violated its interconnection agreement (ICA) with AT&T Kentucky by sending landline-originated traffic over AT&T’s wireless facilities to avoid paying access charges. This case was initiated by several rural local exchange carriers (RLECs) against AT&T, which in turn filed a claim against Halo alleging that Halo was masking the true nature of the traffic terminated to the RLECs and it was the entity responsible for paying the RLECs’ access charges. The KPSC held in its final order that the landline-originated traffic sent by Halo was not enhanced traffic, regardless of the manner in which Halo routed the traffic to AT&T, and thus this traffic was subject to the RLECs’ access charges. The KPSC further found that Halo actively disguised the true origin of the traffic by altering the calling party information in the signaling stream. The final order provides that AT&T is no longer bound by the terms of its ICA with Halo and may stop accepting Halo traffic. Docket No. 2011-00283.

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

• Carriers that maintain tariffs on file with the California Public Utilities Commission (CA PUC) are required to file complete versions of those tariffs that were on file as of January 1, 2013 by February 1, 2013, on CD-ROM. This is an annual requirement. Carriers that have detariffed their services completely are not required to file anything. More information about this filing, and the formatting requirements for the CD-ROM, may be found here.
• Due to the impact of Hurricane Sandy, the Universal Service Administrative Company (USAC) has extended the filing deadlines for FCC Form 486, the Receipt of Service Confirmation Form for the Schools and Libraries fund, for Funding Year 2011 recurring services invoice submissions until January 28, 2013. This is the same deadline for non-recurring services, which means all invoices for Funding Year 2011 now are due at the same time.
  
  In addition, USAC announced that the FCC Form 486 for Funding Year 2012 will also be due on January 28, 2013.
  
  More information regarding these filings can be found here.
• Eligible Telecommunications Carriers (ETCs) that provide Lifeline service are required to recertify the eligibility of their base customers as of June 1, 2012 by December 31, 2012. Each ETC is then required to report the results to the FCC, the Universal Service Administrative Company (USAC), and the applicable state regulatory commission or Tribal government. The recertification process can take place in one of two ways: either through review of databases to confirm eligibility, if there are databases available; or by obtaining a signed certification from the subscriber confirming eligibility to receive Lifeline service. Each ETC must report its results on FCC Form 555 by January 31, 2013. FCC Form 555 can be found here.
  
  In the alternative, companies that electronically file with USAC may log-in to their accounts and file FCC Form 555 via USAC’s Electronic Filing System. More information can be found in the Public Notice found here. (DA 12-1626).
• Form 499-Q is due February 1, 2013, for all filers that are not considered de minimis for Universal Service filing purposes. This filing encompasses historical revenues from the fourth quarter of 2012 and projected revenues for the second quarter of 2013. A copy of the current FCC Form 499-Q can be found here.
  
  Voice over Internet Protocol (VoIP) providers and Commercial Mobile Radio Service (CMRS) providers who rely on traffic studies to report interstate revenues on FCC Form 499-Q must have submit these studies by February 1, 2013, to the Universal Service Administrative Company (USAC) and the Chief, Industry Analysis and Technology Division of the FCC.
• Carriers that have obtained telephone numbers from the North American Numbering Plan Administrator (NANPA), other carriers, or a pooling administrator in 2012, are required to file their FCC Form 502 – Numbering Resource Utilization/Forecast (NURF) by February 1, 2013. Carriers can file FCC Form 502 electronically here. A guide to assist filers can be found here.
• The Universal Service contribution factor for the first quarter of 2013 is 16.1%. A copy of the Public Notice announcing the rate can be found here. (DA 12-2014)

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

Broadband News

• Comments in the Incentive Auctions proceeding are due January 25, 2013, and Reply Comments are due March 12, 2013. To read the order setting these deadlines, click here. To read the Notice of Proposed Rulemaking seeking comments, click here. GN Docket No. 12-268.

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

In the Courts

• On January 7, 2013, the U.S. District Court for the Southern District of New York ruled that Windstream Communications could recover a significant portion of the value of the injunction bond that U.S. D.I.D. Corp. posted when it obtained a temporary restraining order (TRO) against it. Windstream threatened to terminate U.S. D.I.D.’s service “on the ground that U.S. D.I.D. was reselling [Windstream’s] services in violation of an express provision prohibiting resale in the retail customer contract between the parties,” which prompted U.S. D.I.D. to secure a temporary restraining order preventing Windstream from, among other things, suspending services or increasing rates. The TRO was soon lifted, however, when the court held that U.S. D.I.D. failed to prove a likelihood of success on the merits of its claim. Then, before Windstream could answer the complaint, U.S. D.I.D. voluntarily dismissed its case without prejudice. Windstream asked the court to allow a portion of the security bond to be applied to an outstanding invoice. The court found that Windstream could recover a portion of the bond notwithstanding the fact that U.S. D.I.D. obtained voluntary dismissal. The court found that, “at least in certain circumstances, a plaintiff’s voluntary dismissal of its complaint may be treated as a final adjudication on the merits for purposes of Rule 65(c).” It concluded that “all of the relevant factors support the conclusion that U.S. D.I.D. dismissed its suit on the basis of a belief that it would lose on the merits.” Absent an intervening ruling by the court or Second Circuit, the court clerk will pay Windstream $227,271.92 of the $314,672.80 bond on January 22, 2013. U.S. D.I.D. Corp. v. Windstream Commc’ns, Inc., No. 12 Civ. 4023 (JMF) (S.D.N.Y. Jan. 7, 2013).

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

Legislative Outlook

• On January 10, 2013, President Obama signed H.R. 6671, the Video Privacy Protection Act Amendments Act of 2012. Rep. Bob Goodlatte, sponsor of the bill, remarked that, “Federal laws need to catch up with the technology of today. … My legislation preserves careful protections for consumers’ privacy while modernizing the law to empower consumers to do more with their video consumption preferences.” His full statement is available here. The text of the legislation is available here.
• Rep. Greg Walden, R-Ore., Chair of the House Telecom Subcommittee, and Rep. Bob Latta, R-Oh., Vice Chair, released a statement on learning of Chairman Genachowski’s remarks at CES (see FCC Announcements above). “We applaud Chairman Genachowski for announcing the FCC will examine the spectrum in the 5GHz band for unlicensed devices and services, … Focusing additional unlicensed development in that spectrum, which is particularly well suited for such purposes, will enable us to maximize use of other spectrum, returned by broadcasters, for auction of wireless licenses.” To read the full statement, click here.

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

Upcoming Events

• The next Broadband Breakfast Club will be held tomorrow, January 15, 2013, from 8:00 to 10:00 am Eastern at Clyde’s Restaurant, 707 7th Street, NW (Chinatown/Gallery Place Metro). The title is “The President-Elect’s and Congress’ New Broadband Agenda”. To learn more or 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.