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 next FCC Open Meeting will be held February 8, 2011. The Tentative Agenda contains four items, including the presentation on the Data Innovation Initiative, previously scheduled for the January meeting, and a Notice of Proposed Rulemaking on the Connect America Fund and Intercarrier Compensation. To view the Tentative Agenda, 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 26, 2011, the FTC announced that it will host a forum on May 11, 2011, in Washington, DC to examine how government, businesses, and consumer protection organizations can work together to prevent consumers from receiving unauthorized third-party charges on their phone bills — a practice known as “cramming.” The forum, which will be held at the FTC’s satellite building conference center, will be open to the public. Any individuals interested in appearing on the panel must submit requests to the FTC no later than March 4, 2011. The FTC also invites interested parties to submit comments on cramming prevention through the FTC’s online comment form no later than April 27, 2011. The FTC’s Press Release on the Cramming Forum can be found here. Comments can be submitted to the FTC 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 25, 2011, Frontier Communications filed an ex parte letter urging the FCC to address intercarrier compensation with respect to Voice-over-Internet-Protocol traffic. Specifically, Frontier requested that the Commission “swiftly confirm” that “network providers should be compensated appropriately for terminating IP-originated traffic on public networks.” Frontier argued that such a confirmation will stabilize the current intercarrier compensation system while the Commission addresses broader aspects of the regime. Frontier also claimed that targeted action on VoIP will ensure that “Frontier and other similarly-situated telecommunications providers could continue investing hundreds of millions of dollars to achieve the Commission’s goal of deploying broadband to rural America.” GN Docket No. 09-51, WC Docket No. 07-135, et al. To view the letter, click here.
• On January 21, 2011, the Public Utility Commission of Texas (PUC) granted AT&T Texas and Sprint Spectrum, L.P another extension of time in which to negotiate a potential settlement to their ongoing interconnection agreement (ICA) dispute. AT&T filed its complaint against Sprint in October 2009, alleging that Sprint was failing to pay AT&T the proper charges for inter-MTA traffic under the parties’ ICA as a result of Sprint deliberately routing this traffic over trunks dedicated to local traffic. AT&T also alleged that Sprint failed to update the related billing factor after AT&T quantified the misrouted traffic. AT&T asserts that Sprint has failed to pay approximately $1.1 million as a result of both of these issues. The PUC granted the parties until April 14, 2011 to continue negotiations. Docket No. 37610.

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 percent. 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

• As part of a series of blog posts on the impact of the Broadband Technology Opportunities Program (BTOP), the National Telecommunications and Information Administration (NTIA) posted information about a project that brought together two recipients of Round 2 grants in Philadelphia. The Urban Affairs Council was granted an $11.8 million Sustainable Broadband Adoption project grant, and the City of Philadelphia was granted a $6.4 million grant for a Public Computer Center Project. The two entities lead the Freedom Rings Partnership along with Drexel University. The Freedom Rings Partnership is comprised of a number of grassroots organizations, government, and universities with the goal of bringing jobs-training, Internet access, and technology to Philadelphia residents in low-income communities. More information on their combined efforts 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.
• On January 24, 2011, MetroPCS filed its own Notice of Appeal of the Commission’s Open Internet Order. Verizon filed its Notice on January 20 (see January 24 edition of This Week in Telecom). MetroPCS has recently faced criticism for its proposed data plans, and specifically cited that criticism as one reason why it chose to appeal the order. Roger Linquist, MetroPCS President and CEO, issued a statement that “MetroPCS’s concerns regarding the jurisdictional basis for the net neutrality rules, the recent appeal filed by Verizon, and challenges raised by some proponents of Net Neutrality to MetroPCS’ recent 4G rate plans, have caused Metro PCS to appeal the FCC’s net neutrality order to ensure that the concerns of competitive wireless carriers, like MetroPCS, are addressed.” Verizon’s appeal has been docketed as Case No. 11-1014 and MetroPCS’s appeal is Case No. 11-1016. The Court of Appeals has not set a briefing schedule yet but has issued orders in both cases that require appellants to file preliminary papers in the next few weeks and set deadlines in March 2011 for filing any dispositive motions.
• On January 26, 2011, Netflix stated that wired Internet service providers (ISPs) who propose to bill end users by the gigabyte would not be covering costs, but rather would be seeking pure profit. A “marginal gigabyte” costs a wired ISP less than a penny, Netflix states, so charges of $1 a gigabyte would be “grossly overpriced.” Netflix warns that per-gigabyte billing will enable ISPs to discriminate against third-party content providers while simultaneously offering the same service at rates that exclude a per-gigabyte surcharge. Netflix also has stated that charging increased fees to intermediary networks is “inappropriate,” which is no doubt a reference to the ongoing Level 3-Comcast dispute. Netflix recently published a ranking of which Internet service providers perform best in streaming Netflix’s streaming video, with Charter and Comcast ranked the highest. More information is available here.
• President Obama’s State of the Union address mentioned a goal of deploying the “next generation of high-speed wireless coverage to 98 percent of all Americans.” He stated that more coverage and faster speeds will reap numerous benefits. “It’s about connecting every part of America to the digital age. It’s about a rural community in Iowa or Alabama where farmers and small business owners will be able to sell their products all over the world. It’s about a firefighter who can download the design of a burning building onto a handheld device; a student who can take classes with a digital textbook; or a patient who can have face-to-face video chats with her doctor.” The text of President Obama’s speech is available here.

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

Telecom Privacy News

• Google declared January 28, 2011 to be Data Privacy Day, celebrating with a panel discussion at its Washington, DC headquarters chaired by Kim Hart of Politico. Broadcast of the discussion will be uploaded to YouTube. For more information, click 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 21, 2011, the US District Court for the Eastern District of Arkansas dismissed a lawsuit brought by several prisoners claiming that the prison authority’s revenue-sharing relationship with Global Tel*Link, the company that provides inmate telecommunications services at the prison, violates the First Amendment. In exchange for being the exclusive provider of telecommunications services at Department of Corrections facilities for a five-year term, Global Tel*Link pays a 45 percent commission on its gross revenues, which generates approximately $2 million of revenue per year to the Department. The court observed that “courts have generally dismissed claims such as this one by saying that prisoners have no right to unlimited telephone use and no right to a specific telephone rate.” Because “alternate means of communication remain available to the inmates and their families, including mail and visitation,” the Court dismissed the plaintiffs’ First Amendment suit with prejudice. Holloway v. Magness, No. 5:07-cv-00088 JLH-BD (E.D. Ark.).

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

Legislative Outlook

• On January 26, 2011, the Oversight Subcommittee of the House Commerce Committee, chaired by Rep. Cliff Stearns, R-Fla., conducted a hearing titled “The Views of the Administration on Regulatory Reform.” The hearing reviewed a recent Executive Order from President Obama aimed at reducing regulatory burdens in hopes of stimulating job growth. Rep. Stearns noted in his opening remarks that the Order provides an unclear standard of review for determining whether a regulation is overly burdensome, and later observed that several agencies, including the FTC and FCC, are not covered by the Order. Cass Sunstein, Administrator of the Information and Regulatory Affairs of the Office of Management and Budget, testified that approximately 500 new administrative rules have been promulgated during his tenure. He could not state how many rules will be adopted in order to implement the new health care law. For more information, click here.

Upcoming Events

• The Federal Communications Bar Association is hosting 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, including: