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.

We wish all of you a happy and prosperous 2011!

Federal Communications Commission (FCC) Announcements

• 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.
• The FCC has extended the comment dates in the “bill shock” proceeding. Comments now are due January 10, 2011. Reply Comments 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 December 21, 2010, Gallup and USA Today released a new poll indicating that nearly 67% of U.S. Internet users would welcome a “Do-Not-Track” mechanism to limit the ability of advertisers to track their movements online. Respondents to the poll continued to object to online tracking in similar numbers (61%) even when informed by Gallup that such tracking was used to offset website costs and ensure that the content on the websites they visit remains free. Younger and more affluent Internet users were slightly more likely than older and less affluent users to say online tracking should be allowed, though they still largely opposed such tactics. In its online post announcing the poll, Gallup noted that web users “are overwhelmingly negative about whether it is OK for advertisers to use their online browsing history to target ads to them, suggesting they would largely welcome regulation to limit the use of such tactics.”
  
  The Gallup post discussing the poll 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 December 27, 2010, the State Members of the Federal-State Joint Board on Universal Service sent FCC Chairman Genachowski a request for additional information regarding carrier filings, stating that “even in the most optimistic scenario the industry filings will leave some gaps.” The State Members further noted that additional information “can provide useful checks on the accuracy of other data we obtain elsewhere.” The State Members went on to request the following information for the years 2005, 2008, and 2009: Form 477 results showing line counts by carrier type; Form 499 filings containing details on carrier revenues; data underlying the Local Switching Support mechanism containing carrier expense information that is not otherwise available from the data acquired in High Cost Loop program; and Interstate Common Line Support data containing carrier-specific subscriber line rates and the number of residential, single line business and multi-line businesses. The State Members stated that this data will be used only in the Intercarrier Compensation and Universal Service dockets. WC Dockets No. 05-337 and 01-92.

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

Compliance Notes

• 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.

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

Broadband News

• A recent Rasmussen Reports survey found that only 21% of respondents answered yes to the question should the FCC regulate the Internet like it does radio and television. 54% said no and 25% were unsure. In response to another question, whether the FCC would use its authority to regulate the Internet in an unbiased manner or to promote a political agenda, 56% answered that the FCC would promote a political agenda, while 28% answered that the FCC would regulate in an unbiased manner. More information and results may be found here.
• In response to the recent Open Internet Order, Republican House members have promised to overturn the Order, possibly by using the Congressional Review Act which allows Congress to overturn federal regulations by a joint resolution of disapproval. Incoming Republican House Speaker John Boehner, R-Oh., called the order a “harmful federal government power grab.” Congressman Fred Upton, R-Mich., incoming Chair of the House Commerce Committee, promised hearings early this year on the “substance, process and claims of authority underlying this proceeding.” Democratic House member Bobby Rush, D-Ill., promised to defeat Republican efforts to overturn the Open Internet Order. President Obama can veto any joint resolution of disapproval, thus allowing the Open Internet Order to become effective. For more information see the following articles here and here.

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

Telecom Privacy News

• On December 23, 2010, a class action lawsuit was filed against Apple and five application developers (including Pandora and the Weather Channel) alleging that the companies illegally transmitted personal information garnered from iPad and iPhone users to advertising networks for tracking purposes. Specifically, the lawsuit alleges that the defendants used the Unique Device Identifier (UDID), which is found in every iPad and iPhone, to track which applications users downloaded, how frequently they used the applications, and for how long. The suit further alleges that some developers are selling additional information to third parties, including the device user’s location, age, gender, income, ethnicity, sexual orientation, and political views. The lawsuit includes claims for violations of federal computer fraud and privacy laws, and seeks class-action status for Apple customers who downloaded an application on their iPhone or iPad between December 1, 2008, and December 23, 2010. Lalo v. Apple, Inc., No. 5:10-cv-05878 (N.D. Cal., filed Dec. 23, 2010).

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

In the Courts

• On December 20, 2010, the United States District Court for the Central District of California awarded judgment in favor of T-Mobile and against the City of Agoura Hills in the parties’ dispute over whether the City violated section 332 of the Telecommunications Act by denying T-Mobile’s application for a conditional use permit. T-Mobile sought the permit in order to fill coverage gaps with an antenna that would be supported and concealed by flagpoles. The City’s Planning Commission voted to approve the application, but the City Council appealed the approval, and later issued a moratorium on any further discretionary permits for wireless facilities. After the City formally denied T-Mobile’s application in November 2009, T-Mobile brought suit challenging the denial as a violation of the Telecommunications Act’s prohibition against municipalities effecting an unlawful prohibition of wireless service. The trial judge granted in full T-Mobile’s proposed findings of fact and conclusions of law, which included a finding that T-Mobile’s proposed school site was the least intrusive and was a technologically feasible means to fill the significant gap in T-Mobile’s coverage. The court also agreed with T-Mobile that the City failed to carry its burden of showing that there were other, less intrusive, potentially available and technologically feasible alternatives. The court ordered the City to grant T-Mobile’s application within 30 days. T-Mobile West Corp. v. City of Agoura Hills, No. CV 09-9077 DSF (PJWx) (C.D. Cal.).

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

Legislative Outlook

• Sen. John “Jay” Rockefeller IV, D-W. Va., Chair of the Senate Commerce Committee, released a statement on the Open Internet Order, praising it as a “meaningful step forward.” He also noted that the order “is undoubtedly better due to the hard work of Commissioner Copps, who has a long-standing commitment to network neutrality … .” To view the full statement, click here.

Upcoming Events

• The Federal Communications Bar Association is hosting a breakfast with Scott Blake Harris, General Counsel of the Department of Energy, on 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.