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.

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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 Final Agenda for the next FCC Open Meeting to be held tomorrow, January 31, 2012, at 10:30 am Eastern contains only one item, a Report and Order and Further Notice of Proposed Rulemaking on Lifeline and Link Up Reform. To view the Final Agenda, click here.
• The FCC will hold its next Open Meeting on February 15, 2012, at 10:30 am Eastern. The Tentative Agenda contains three items: a Report and Order adopting rules for “robocalls”; a Notice of Proposed Rulemaking on streamlining cellular service licensing rules; and a Report and Order on outage reporting requirements for interconnected Voice-over-Internet Protocol (VoIP) service. To view the Tentative Agenda, click here.
• Reply Comments on the FCC Notice of Proposed Rulemaking on Next-Generation 911 (NG911) service are 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

• Following the breakup of their proposed merger, AT&T and T-Mobile have now sought FCC approval to transfer advanced wireless services (AWS) licenses from AT&T to T-Mobile. Under the deal, which was negotiated as protection for T-Mobile in the event AT&T was unable to gain regulatory approval for the merger, AT&T subsidiary Cingular Wireless will assign seven full AWS-1 licenses and four partial licenses to T-Mobile, and AT&T Mobility Spectrum LLC will assign thirteen full and twenty-three partial AWS-1 licenses to T-Mobile. The licenses cover several major markets, including Chicago, Boston, D.C., Dallas, Miami-Fort Lauderdale, and Atlanta, as well several smaller markets. The spectrum is valued at $1 billion. Tom Sugrue, T-Mobile Senior Vice President – Government Affairs, has said of the deal, “This additional spectrum will help meet the growing demand for wireless broadband services by T-Mobile customers in key markets around the country and we hope the FCC will move swiftly to approve the license assignments.”

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

Federal Trade Commission (FTC) and Privacy Regulation

• On January 25, 2012, the European Commission (EC) proposed comprehensive reform to the European Union (EU) 1995 data protection rules. In the EC’s words, the reforms will “strengthen online privacy rights and boost Europe's digital economy.” According to the EC, the 27 EU Member States have implemented the 1995 rules differently, resulting in divergent and costly enforcement. The EC believes the proposed new rules will alleviate the current fragmentation and reduce administrative burdens, resulting in estimated savings of approximately €2.3 billion a year for affected businesses. Notably, a breach of the proposed new rules could mean fines of up to €1 million or up to two percent of a company’s global annual turnover. More information on the proposed data protection rules can be found here.
• The FTC is seeking public comment on issues raised at a December 2011 workshop on the privacy and security implications raised by facial recognition technology. The workshop, entitled “Face Facts: A Forum on Facial Recognition Technology”, focused on the current and future commercial applications of facial detection and recognition technologies, and explored an array of current uses of these technologies, their possible future uses and benefits, and the resulting privacy and security concerns. Facial detection and recognition technologies have already been employed in a variety of new contexts, including online social networks, digital signs, and mobile apps. Comments are due tomorrow, January 31, 2012. More information and instructions for filing can be found here.

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

New Markets: SmartGrid and E-Health

• The Institute of Medicine and the National Academy of Engineering have announced their second annual contest aimed at encouraging undergraduate and graduate students to create health-related mobile applications. The contest has a total of $18,000 in prizes. The team that designs the best app will receive a $10,000 prize and the opportunity to demonstrate their app during the plenary session of Health Datapalooza to be held June 5-6, 2012, in Washington, D.C. Additional eligibility criteria and terms are described here.
• The Michigan Public Service Commission (MI PSC) has opened an investigation into the deployment of smart meters by electric utilities. Noting that consumers and municipalities have expressed concern about smart meters, the MI PSC has ordered all regulated electric utilities to submit information to the MI PSC by March 16, 2012, on a number of issues, including (1) the utility’s existing plans for deployment of smart meters in its service territory, (2) any scientific information known to the utility that bears on the safety of smart meters, and (3) an explanation of the steps that the utility intends to take to safeguard the privacy of the information gathered. Comments are due April 16, 2012. The MI PSC order can be found here.
• 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 January 24, 2012, the Florida Public Service Commission (FL PSC) declined to act on its Staff’s recommendation to grant a motion to dismiss filed by BellSouth Telecommunications, LLC d/b/a AT&T Florida in its dispute with FLATEL, Inc., a Florida-based reseller of telecommunications services. FLATEL filed its complaint on November 7, 2011, alleging that AT&T failed to offer wholesale promotional discounts due to it under the parties’ interconnection agreement (ICA), thereby discriminating against both FLATEL and its end user customers. FLATEL alleges that AT&T has overcharged it $326,924 since 2008 due to its refusal to reimburse FLATEL for promotional credits. AT&T, however, asserted in its motion to dismiss that it is implementing the “plain and unambiguous” terms of the ICA. AT&T also requested permission to disconnect FLATEL for its failure to make full payment of the disputed amounts, arguing that “FLATEL’s allegations do nothing to alter the fact that the plain language of the Agreement requires it to pay all amounts it is billed, even if it disputes those amounts. To require AT&T Florida to wait indefinitely for FLATEL to pay its bills in full would require AT&T Florida’s stockholders, in essence, to continue subsidizing a non-paying wholesale customer like FLATEL.” FL PSC Staff agreed with AT&T, finding that FLATEL has not identified any statute or provision in the ICA that would entitle FLATEL to an emergency stay preventing AT&T from disconnecting FLATEL. Docket No. 110306-TP.

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 who have obtained numbers from either the North American Numbering Plan Administrator (NANPA), another carrier, or a pooling administrator are required to file a Numbering Resource Utilization/Forecast (FCC Form 502) with NANPA by February 1, 2012. More information about this filing may be found here.
• CLECs that maintain switched access tariffs with the New Jersey Board of Public Utilities (NJ BPU) are required to file amended tariff pages, reflecting a step-down in intrastate access rates by February 1, 2012. In 2009, the NJ BPU had ordered CLECs to match the incumbent carriers’ intrastate switched access rates. Incumbent LECs now are required to lower their current intrastate switched access rates by February 1, 2012, which in turn requires CLECs to update their rates. A copy of the order outlining the step-down timetable may be found here (Docket No. TX08090830).
• 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) 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.
• Form 499-Q is due February 1, 2012 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 2011 and projected revenues for the second quarter of 2012. 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 submit these studies by February 1, 2012 to the Universal Service Administrative Company (USAC) and the Chief, Industry Analysis and Technology Division of the FCC.
• Under the FCC’s new access tariff rules adopted November 18, 2011 (FCC 11-161), see December 5 client alert 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).
• 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

• On February 15, 2012, the FCC is participating in a series of workshops on broadband tools for small businesses to be held at the Washington D.C. Convention Center. Commissioner Clyburn will speak. The workshops are being hosted by OCBO and the E-Business Now Consortium, the Small Business Administration, the Service Corps of Retired Executives, and the Maryland Hispanic Chamber of Commerce. More information is available here.
• Last week, Chairman Genachowski participated in the 2012 World Radiocommunication Conference (WRC-12) hosted by the United Nations’ International Telecommunications Union. The Chairman stated that WRC-12 should examine ways to free and improve the use of spectrum for mobile broadband, because smartphone and tablet use will only continue to increase. Lawrence Strickling, the National Telecommunications and Information Administration (NTIA) Administrator, has joined the Chairman in identifying spectrum sharing as possible solutions.
• The FCC Wireless Telecommunications Bureau will host an informational forum on February 1, 2012, from 9:30 am to 3:30 pm Eastern, on distributed antenna systems (DAS) and small cell technologies that augment mobile broadband and wireless services. The forum is being held in cooperation with the National Association of Telecommunications Officers and Advisors (NATOA). More information 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 January 23, 2012, the United States Court of Appeals for the Fifth Circuit upheld the FCC’s “shot clock” rule that requires municipalities to act within 90 or 150 days on tower siting applications (depending on whether the application was a collocation arrangement or not). The Court of Appeals rejected the City of Arlington’s appeal of the rule on the merits, holding that the FCC does in fact have jurisdiction to promulgate the rule. It rejected the City of San Antonio’s on jurisdictional grounds. The court “conclude[d] that § 332(c)(7) is ambiguous with respect to the FCC’s authority to establish the 90- and 150-day time frames. Although the statute clearly bars the FCC from using its general rulemaking powers under the Communications Act to create additional limitations on state and local governments beyond those the statute provides in § 332(c)(7)(B), the statute is silent on the question of whether the FCC can use its general authority under the Communications Act to implement § 332(c)(7)(B)’s limitations.” The court therefore deferred to the FCC in the face of Congress’s silence. The opinion is available here. City of Arlington v. FCC, No. 10-60039 (5th Cir.).

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

Legislative Outlook

• The Senate Senate Subcommittee on Privacy, Technology and the Law will hold a hearing titled “The Video Privacy Protection Act: Protecting Viewer Privacy in the 21st Century” tomorrow, January 31, 2012, at 10:00 am Eastern in 226 Dirksen Senate Office Building. For more information, click here.
• The House Subcommittee on Intellectual Property, Competition and the Internet will hold a hearing titled “Prior User Rights: Strengthening U.S. Manufacturing and Innovation” on February 1, 2012, at 10:00 am Eastern in 2141 Rayburn House Office Building. For more information, click here.

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

Upcoming Events

• The Federal Communications Bar Association will hold its 7th Annual Privacy and Data Security Symposium, together with the ABA Communications Law Forum, on March 21, 2012, from 2:00 to 6:00 pm Eastern. Location TBD. CLE credits will be available. 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.