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 you a safe and prosperous 2012!

Jump to a Topic:
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 FCC has announced the dates of its next four Open Meetings: January 31, February 15, March 21, and April 26, 2012. The Tentative Agenda for the January Open Meeting has not yet been released.
• EXTENSION GRANTED: Reply Comments on the FCC Notice of Proposed Rulemaking on Next-Generation 911 (NG911) service are now due February 9, 2012. To view the Federal Register notice on the NPRM, click here. To read the NPRM, click here. To view the order granting requests for extension, click here.

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

The Mobile Market

• Last week, the FCC sent Notices of Apparent Liability (NALs) to four wireless carriers: Locus Telecommunications, Centennial Communications, Maximum Communications Cellular, and Metropolitan Telecommunications. According to the NALs, in 2010 the carriers “failed to offer to consumers the required number or percentage of hearing aid-compatible digital wireless handset models” as required by the Commission’s rules. These “hearing aid compatibility requirements serve to ensure that consumers with hearing loss have access to advanced telecommunications services.” The proposed fines range from $25,500 to $75,000, and the carriers have thirty days to pay the fines or to seek a reduction. The NALs may be found here.

Please contact Ross Buntrock, Michael Hazzard, or G. David Carter (contact information below) for further information.

Federal Trade Commission (FTC) and Privacy Regulation

• On December 30, 2011, the FTC sent its biennial report to Congress on the Do Not Call rules, as required by the Do Not Call Registry Fee Extension Act of 2007. The FTC approved the report by a 4-0 vote, and focused on the use of the Registry by both consumers and businesses, and discussed the impact that new technologies have had on the Registry. According to the report, the Do Not Call Registry now has more than 209 million active registrations, and more than eight million new phone numbers were registered in Fiscal Year 2011 alone. Subscriptions to the Registry brought in more than $13.7 million in fees in FY 2011. The report can be accessed here.

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

New Markets: SmartGrid and E-Health

• 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 December 23, 2011, the FCC adopted and released an Order on Reconsideration on its own motion modifying the USF/ICC Reform Order (Order) in two respects. First, the Commission clarified that Lifeline-only Eligible Telecommunications Carriers must provide Lifeline services using their own facilities in order to receive support. Second, the Commission modified its holding with regard to bill-and-keep. The initial order adopted bill-and-keep as the default intercarrier compensation methodology for non-access traffic exchanged between local exchange carriers (LECs) and wireless providers, with a hard effective date of December 29, 2011. In its Order on Reconsideration, however, the Commission found “it more appropriate to make the default bill-and-keep compensation methodology for LEC-CMRS non-access traffic consistent with the start of the transitional intercarrier compensation recovery mechanism for carriers that were exchanging LEC-CMRS traffic under existing interconnection agreements prior to the adoption date” of the Order. Thus, the Commission’s LEC-CMRS bill-and-keep methodology will now become effective on July 1, 2012.
  
  A copy of the Order on Reconsideration can be found here. FCC 11-189; WC Docket Nos. 10-90, 07-135, 05-337, 03-109; GN Docket No. 09-51; CC Docket Nos. 01-92, 96-45; and WT Docket No. 10-208.

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

• Under the FCC’s new access tariff rules adopted November 18, 2011 (FCC 11-161), see December 5 client alert found here, all local exchange carriers (LECs) that trigger the “access stimulation” criteria are required to cap their switched access rates to the lowest incumbent carrier in the LEC’s service area. Affected LECs are required to update their federal switched access tariff rates by February 13, 2012.
  
  A copy of FCC 11-161 may be found here (WC Docket Nos. 10-90, 07-135, 05-337, 03-109; GN Docket No. 09-51; CC Docket Nos. 01-92, 96-45; and WT Docket No. 10-208).
• Carriers providing service in California are required to file complete versions of their current tariffs on file with the California Public Utilities Commission (CA PUC) as of January 1, 2012 by February 1, 2012. This filing must be made on CD-ROM as per CA PUC practice. More information about the filing may be found here.
• The FCC rule requiring CLECs to file their switched access tariffs and any supporting materials electronically went into effect November 17, 2011. A copy of the Report and Order establishing the rule can be found here. FCC-11-92, WC Docket No. 10-141.
  
  CLECs must use the Electronic Tariff Filing System (ETFS) to file their initial base tariffs by January 17, 2012. All subsequent tariff filings must likewise be made via ETFS. A copy of the FCC announcement can be found here. The FCC has issued an updated Public Notice to assist CLECs with their filings, which can be found here. DA-11-1706, DA-11-1887, WC Docket No. 10-141.
• 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

• Southern Company Services, Inc.’s Petition for Clarification or Reconsideration of the FCC’s Open Internet Rules asking the FCC to address the treatment of “specialized services” has created an industry fight over how smart grid services might be treated under the FCC’s Open Internet Rules. Public Knowledge opposed the Petition because the FCC should evaluate future services on an individualized, case-by-case basis, not in response to a Petition with no new facts and only a broad description of new services. In response, Southern Company stated that Public Knowledge’s opposition showed that there was significant confusion about specialized services and that clarification was necessary. In addition, both the Utilities Telecom Council (“UTC”) and the United State Telecom Association (“USTA”) replied to Public Knowledge’s opposition. UTC argued that clarification because “utilities need regulatory certainty that specialized services that they use for smart grid and other mission critical applications are reliable and that they will not be subject to network traffic delays that could result if the specialized services are subject to the Commission’s Open Internet rules.” USTA argued that the Petition did not need to be granted because it was already clear that the Open Internet rules did not apply to smart grid services.
  
  Southern’s Petition has also affected the ongoing appeal of the Open Internet rules at the U.S. Court of Appeals for D.C. Circuit. The FCC has asked the appellate court to hold the appeal in abeyance for a reasonable period of time, such as six months, to allow the FCC to consider Southern’s Petition. According to the FCC, the resolution of Southern’s Petition could be material to the issues currently before the appellate court, including whether the Open Internet rules are too strict or too permissive, and the burdens on free speech of the Open Internet rules under the First Amendment. The appellate court has not yet acted on the FCC’s motion for abeyance at this time.
  
  Southern’s Petition is available here. Public Knowledge’s Opposition is available here.
  
  Southern’s Reply is available here. UTC’s Reply is available here. USTA’s Reply is available here.

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

In the Courts

• On December 30, 2011, the United States Court of Appeals for the D.C. Circuit upheld the FCC’s latest order in the access charge dispute between Iowa LEC Farmers and Merchants Mutual Telephone Company of Wayland and interexchange carrier Qwest Communications Company. The FCC had initially held that the terms of Farmers’ relationship with the conferencing providers to which it was completing calls was “irrelevant” to the latter’s status as “end users” under Farmers’ switched access tariff; the FCC then held on reconsideration that those terms were “essential” to the “end user” status. The court found that, “[i]n sum, the Commission, upon considering factors within its expertise, could reasonably conclude that Farmers’ relationships with the conference calling companies had been deliberately structured to fall outside the terms of Farmers’ tariff and therefore reasonably reject such services as tariffed services.” Accordingly, the court did not consider what Qwest owed Farmers for those non-tariffed services. Farmers & Merchants Mut. Tel. Co. v. FCC, No. 10-1093 (D.C. Cir.).

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

Legislative Outlook

• On December 28, 2011, Sen. John “Jay” Rockefeller, IV, D-W.Va., Chair of the Senate Commerce Committee, sent a letter to the Department of Commerce (DOC) and the National Telecommunications and Information Administration (NTIA) regarding the expansion of the Generic Top-Level Domain registry administered by the Internet Corporation for Assigned Names and Numbers (ICANN). Initially scheduled for January 12, 2012, the expansion has been widely criticized, including in the December 21 letter from the House Commerce Committee. See December 26 edition of This Week in Telecom. Chairman Rockefeller urged DOC and NTIA to “work with your international counterparts and ICANN to ensure that ICANN’s plan to expand top-level domains is implemented in a cautious, limited manner, which minimizes the likelihood of negative impacts.” To read the letter, click here.

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

Upcoming Events

• The Wireline Committee of the Federal Communications Bar Association will conduct a CLE seminar titled “Understanding USF and ICC Reform” on January 19, 2012, from 6:00 to 8:15 pm Eastern. Location TBD. 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, including: