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 announced its Tentative Agenda for its next Open Meeting on January 25, 2011. It contains two items: a Further Notice of Proposed Rulemaking on interoperability in the public safety broadband network; and a presentation on the FCC’s Data Innovation Initiative. To view the agenda, click here.
• The FCC has released its annual report on Local Telephone Competition which summarizes data collected in 2009. It notes, among other things, that Voice-over-Internet-Protocol subscribership increased 10% in 2009, and that VoIP comprised 15% of all residential telephone service at year end. To view the summary of the Report, click here. To view the Report, 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 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 January 10, 2011, the FTC announced its settlement with Fereidoun Khalilian and his company, The Dolce Group Worldwide, LLC, over complaints that Dolce engaged in deceptive marketing practices via prerecorded calls (“robocalls”). The settlement agreement, approved by the district court, bans Khalilian and Dolce from telemarketing or helping others to telemarket, prohibits them from making any misrepresentations or omissions when selling any goods or services, and includes a monetary judgment of more than $4.2 million. This case continues the FTC’s crackdown on robocall operations and those using deceptive prerecorded calls. FTC v. Khalilian, Case No. 10-21788 (S.D. Fla., filed June 2, 2010). An FTC press release on the settlement can be found here.
• On January 12, 2011, Adobe announced that it is taking steps to address privacy concerns raised with regard to its popular Flash Player program. Specifically, Adobe announced that it will make two key changes in order provide users greater control over their privacy settings. First, working with Mozilla, Google, and Apple, Adobe will create a standard for controlling user information held by browser plug-ins, including the Flash Player. Second, Adobe is developing a system that will allow users to manipulate Flash controls from within their computer’s control panel. This change follows an announcement in December 2010 by the FTC’s chief technologist, Ed Felten, that the agency is investigating what steps might be taken to keep developers from using Flash technology to track online users without their knowledge. Adobe's announcement can be found here.
• Comments on the FTC’s Caller ID Advanced Notice of Proposed Rulemaking are due January 28, 2011. A link to the NPRM can be found here.
• Comments on the privacy report issued December 1, 2010, by FTC staff are due January 31, 2011. A copy of the report can be found here.

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

Developments in Intercarrier Compensation

• On January 11, 2011, the New York Public Service Commission (NYPSC) announced that the first meeting in its proceeding to examine the intrastate switched access rates of Verizon-New York will be held 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.
• On January 10, 2011, AT&T-Indiana filed a motion with the Indiana Utility Regulatory Commission requesting that its complaint against Sprint PCS and Nextel West Corp. be held in abeyance while the parties attempt to negotiate a settlement. AT&T filed its complaint against Sprint in April 2010, alleging that Sprint was not paying AT&T the proper charges for inter-MTA traffic under the parties’ interconnection agreement by deliberately routing this traffic over trunks dedicated to local traffic. AT&T also alleged that Sprint failed to update the billing factor after AT&T quantified the misrouted traffic. In its motion, AT&T stated that Sprint agreed to the stay which “may facilitate a multi-state settlement of the complaints of AT&T Indiana and its incumbent local exchange carrier affiliates.” Docket No. 43890.

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

Compliance Notes

• Carriers that have received telephone numbers from the North American Numbering Plan Administrator (NANPA), a Pooling Administrator, or another carrier are required to file their Numbering Utilization/Forecast (FCC Form 502) by February 1, 2011. This filing may be made electronically by logging in here. A user name and password are required.
• FCC Form 499-Q is due February 1, 2011 for all filers that are not considered to be de minimis for Universal Service filing purposes. This filing encompasses historical revenues from the fourth quarter of 2010 and projected revenues for the second quarter of 2011. A copy of the current FCC Form 499-Q can be found here.
• The Universal Service contribution factor for the first quarter of 2011 will be 15.5%. A copy of the notice can be found here. DA 10-2344.
• Carriers providing tariffed services in California as of January 1, 2011 are required to file a complete copy of their tariffs on file with the California Public Utilities Commission (PUC) by February 1, 2011 on CD-ROM. This is an annual filing requirement at the PUC. A copy of the notice letter, which includes specific filing instructions, can be found here.

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

Stimulus This Week

• All recipients of funds under the Broadband Technology Opportunities Program (BTOP), administered by the National Telecommunications and Information Administration (NTIA), are required to file their annual reports with NTIA by January 30, 2011. Information about this filing requirement for Infrastructure projects can be found here; information for Public Computer Center projects can be found here; and information for Sustainable Broadband Adoption projects can be found here.

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

Broadband News

• 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.
• The FCC released the identities of late filers in the Open Internet proceeding who submitted presentations in the “sunshine” period between December 15, 2010, when the order was announced and December 22, 2010 after the order had been adopted. The list is available here.
• FOLLOW-UP STORY FROM JANUARY 10 EDITION: Free Press has asked the FCC to investigate MetroPCS’s newly announced mobile broadband plans, because the base plans would allow unlimited YouTube viewing but would exclude other content like Skype and Netflix. Free Press argues that the distinctions are not based on any “engineering merit” and would force users who want that content to pay more per month. Free Press also argues that even under the less restrictive Open Internet rules for mobile networks, MetroPCS’s plan runs afoul of the “No Blocking” rule, because it blocks competing VoIP applications. This conduct, Free Press asserts, could not be a “reasonable network management practice,” because VoIP applications use less bandwidth than YouTube. MetroPCS has stated that it will provide a full written response to Free Press’s letter by February 11, 2011. Free Press’s letter is available here. MetroPCS’s response is available here.

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

Telecom Privacy News

• On January 7, 2011, the Supreme Court agreed to hear a case that is likely to have a significant impact on the regulation of online privacy. Pharmaceutical and data-mining companies are challenging a Vermont statute that prohibits the selling of prescription information on the ground that the regulation infringes their First Amendment right to freedom of speech. Although the case does not specifically address information gleaned from online services, if the Supreme Court were to hold that this privacy statute violates the First Amendment, efforts to control the collection and sale of information gathered online may be at risk on similar grounds. Sorrell v. IMS Health Inc., Case No. 10-779 (docketed Dec. 13, 2010).
• On January 7, 2011, U.S. Commerce Secretary Gary Locke and White House Cybersecurity Coordinator Howard A. Schmidt announced plans to create a National Program Office (NPO) to help foster an environment in which sensitive online transactions can be carried out with greater levels of security and trust. The NPO will be responsible for coordinating federal activities needed to implement the National Strategy for Trusted Identities in Cyberspace (NSTIC), an initiative for improving the ability to authenticate individuals, organizations, and the underlying infrastructure, such as servers and routers, involved in sensitive online transactions. The Obama Administration thus far has asserted that participation in NSTIC will be voluntary. Additional details on the initiative are expected to be released in the coming months. A copy of the NPO press release can be found here.

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

In the Courts

• On January 4, 2011, the U.S. District Court for the District of Arizona upheld a zoning decision issued by the Pima County Board of Supervisors denying Cingular Wireless PCS LLC a conditional use permit to construct a wireless tower. The Board had ruled that there were “significant aesthetic issues with the location of the proposed tower” and that “due to the unique scenic features in the area and topography in the area this tower will adversely affect the views of neighboring property owners and view of the Tucson Mountains.” In its appeal of the Board’s decision, Cingular argued that the Board’s ruling violates section 332 of the Communications Act which prohibits local government regulation that “prohibits or has the effect of prohibiting the provision of personal wireless services.” Federal Judge David Bury, however, held that “aesthetics, like other public goals such as safety are valid considerations for a zoning board … . There was substantial evidence to support the board’s denial of the application. It remains to be seen, whether the denial of the application constituted an effective prohibition of services in violation of the” Communications Act. New Cingular Wireless PCS LLC v. Board of Supervisors of Pima County, Arizona, No. 10-028 (D. Ariz.).

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

Legislative Outlook

• Rep. Fred Upton, R-Mich., new Chair of the House Commerce Committee, has announced the Republican membership of all subcommittees. The Communications Subcommittee will be chaired by Rep. Greg Walden, R-Ore., and members will include Rep. Mary Bono Mack, R-Cal., Rep. Joe Barton, R-Tex., Rep. Marsha Blackburn, R-Tenn., and Rep. Cliff Stearns, R-Fla. To view the full list, click here.

Upcoming Events

• The Federal Communications Bar Association is hosting a breakfast with Scott Blake Harris, General Counsel of the Department of Energy, tomorrow, January 18, 2011, and 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.