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 our readers a happy and prosperous 2013!

Jump to a Topic:
FCC Announcements l The Mobile Market l FTC and Privacy Regulation l New Markets: Smart Grid and E-Health l Intercarrier Compensation l Compliance Notes l Broadband News l In the Courts l Legislative Outlook l Upcoming Events

Federal Communications Commission (FCC) Announcements

• The Open Internet Advisory Committee will meet on January 17, 2013, from 10:00 am to 12:00 pm Pacific in Paul Brest Hall-East, Stanford University. The meeting is open to the public and available via live webcast. The Public Notice of the meeting is available here.
• The next two FCC Open Meetings will be held January 31, 2013, at 10:30 am Eastern, and February 20, 2013, at 10:30 am Eastern.

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

The Mobile Market

• EXTENSION GRANTED: The FCC has extended the pleading cycle regarding the application of Softbank Corp. to acquire 70% of Sprint. Petitions to deny are now due January 28, 2013, oppositions are due February 12, 2013, and replies are due February 25, 2013.
  
  The modified pleading cycle comes after Softbank and Sprint filed an amendment to their application notifying the Commission of a recent agreement by which Sprint would acquire the remaining shares of Clearwire, a wireless internet access provider, that Sprint does not already own, on the condition that the Commission approve SoftBank’s applications to acquire control of Sprint. After consummation of the merger, Sprint, which would be controlled by SoftBank, would have 100% stock ownership in and de facto control of Clearwire. Accordingly, through the amended application, Sprint and SoftBank seek Commission consent for the transfer of control of Clearwire’s licenses, leases and authorizations to SoftBank. Because the Amendment seeks approval of SoftBank’s control of Clearwire, the Commission has determined that it will treat the amendment to the merger application as a “major amendment” and has revised the comment cycle for the preceding. Those that file petitions to deny become parties to the proceeding and may participate fully in the proceeding, including seeking access to any confidential information filed under a protective order, seeking reconsideration of decisions, and filing appeals of a final decision to the courts. Filings should be made in IB Docket No. 12-343. The original Public Notice is available here. The notice regarding the amended pleading cycle is available here.
• The FCC has adopted new rules to help speed the deployment of Internet services onboard aircraft. Since 2001, the Commission has authorized a number of companies, on an ad hoc basis, to operate Earth Stations Aboard Aircraft (ESAA), which when installed on the exterior of the aircraft provides two-way, in-flight broadband services to passengers and flight crews. The Report and Order formalizes ESAA as a licensed application and establishes a regulatory framework for processing applications. Rather than have to license on-board systems on an ad hoc basis, airlines will be able test systems that meet FCC standards, establish that they do not interfere with aircraft systems, and get FAA approval. The Commission hopes that the new rules will streamline the approval process, allowing ESAA applications to be reviewed 50 percent faster, promoting the widespread availability of Internet access to aircraft passengers. The Report and Order is available here.

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

Federal Trade Commission (FTC) and Privacy Regulation

• As part of its effort to thwart robocalls, the FTC has announced that it is launching the “FTC Robocall Challenge” – a contest that will award a $50,000 cash prize for the best technical solution for blocking illegal robocalls. The FTC believes the challenge will allow it to “tap into the genius and technical expertise among the public” in order to develop a successful solution to the illegal robocall problem. The award will go to the person, team, or small company (with fewer than 10 employees) that develops the best robocall-blocking technology. Entries will be judged by the following criteria: (1) it must work; (2) be easy to use; and (3) be easy to implement and operate. The FTC Robocall Challenge is free and open to the public. Entries will be accepted until January 17, 2013. More information regarding the FTC Robocall Challenge is available here.

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

New Markets: Smart Grid and E-Health

• IEEE has announced updates to four wireless communications technologies in the IEEE 802 family of standards. These new standards support the global utility industry’s needs for smart grid data communications infrastructure. James Gilb, chair of the IEEE 802.24 Technical Advisory Group, believes that “these new updates to the IEEE 802 standards will enable utilities around the world to build the carrier-grade, high-capacity networks they will need to connect the millions of grid components and end-use devices that will operate on smart grids.” The new standards include carrier-grade wireless communications connectivity for large-scale smart metering applications and advanced metering infrastructure used to connect millions of end points from geographically diverse networks. They also provide for improved air interface and capacity for metropolitan-area networks that will enable smart grid machine-to-machine communications, including support for Ethernet and IP interfaces. More information regarding the new IEEE standards is available here.
• The IEEE Power & Energy Society has announced its fourth Conference on Innovative Smart Grid Technologies (ISGT) to be held February 24-27, 2013, in Washington, DC. The ISGT Conference will provide a forum for participants to discuss state-of-the-art innovations in smart grid technologies. According to the announcement, it will feature “plenary sessions, panels, technical papers, and tutorials by international experts on smart grid applications.” Researchers and practitioners from around the world are also invited to submit papers for review and possible presentation at the ISGT Conference. More information about the ISGT Conference 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 28, 2012, YMax Communications Corp. withdrew proposed revisions to its intrastate switched access tariff on file with the Iowa Utilities Board (IUB) after the revisions were challenged by AT&T Communications of the Midwest, Inc. and TCG Omaha, and later joined by Verizon Communications. AT&T filed a complaint and request for investigation against YMax on August 28, 2012, alleging that YMax’s proposed tariff provisions would allow it to charge for switched access services that YMax does not provide. AT&T has filed similar challenges to YMax’s proposed tariff revisions in Missouri, New Mexico, Kentucky, Alabama, West Virginia, Maryland and Ohio. On October 19, 2012, the IUB docketed YMax’s tariff for investigation and directed YMax to file a response to AT&T’s complaint, which it did on October 26, 2012. In its reply, AT&T argued that YMax failed to address the specific allegations in AT&T’s complaint, and ignored that YMax has “voluntarily withdrawn similar tariff provisions in numerous states and … a similar tariff  has been rejected as a matter of law by an administrative law judge in Maryland.” In its motion to withdraw its proposed tariff revisions, YMax stated that it “requests withdrawal of this tariff revision to resolve the controversy surrounding the filing and avoid unnecessary expenditure of the Board’s and other parties’ resources.” Docket No. TF-2012-0550.

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

• Comments on proposed changes to the FCC Form 499-A and Form 499-Q, along with accompanying instructions, for use in 2013 are due January 11, 2013. (DA 12-2010, WC Docket 06-122) A list of the proposed changes can be found here.
  
  A redline of the proposed changes to FCC Form 499-A can be found here, with the redline of its instructions found here.
  
  A redline of the proposed changes to FCC Form 499-Q can be found here.
  
  The proposed changes to the Form 499-Q instructions can be found here.
• Due to the impact of Hurricane Sandy, the Universal Service Administrative Company (USAC) has extended the filing deadlines for FCC Form 486, the Receipt of Service Confirmation Form for the Schools and Libraries fund, for Funding Year 2011 recurring services invoice submissions until January 28, 2013. This is the same deadline for non-recurring services, which means all invoices for Funding Year 2011 now are due at the same time.
  
  In addition, USAC announced that the FCC Form 486 for Funding Year 2012 will also be due on January 28, 2013.
  
  More information regarding these filings can be found here.
• Eligible Telecommunications Carriers (ETCs) that provide Lifeline service are required to recertify the eligibility of their base customers as of June 1, 2012 by December 31, 2012. Each ETC is then required to report the results to the FCC, the Universal Service Administrative Company (USAC), and the applicable state regulatory commission or Tribal government. The recertification process can take place in one of two ways: either through review of databases to confirm eligibility, if there are databases available; or by obtaining a signed certification from the subscriber confirming eligibility to receive Lifeline service. Each ETC must report its results on FCC Form 555 by January 31, 2013. FCC Form 555 can be found here.
  
  In the alternative, companies that electronically file with USAC may log-in to their accounts and file FCC Form 555 via USAC’s Electronic Filing System. More information can be found in the Public Notice found here. (DA 12-1626).
• Form 499-Q is due February 1, 2013, for all filers that are not considered de minimis for Universal Service filing purposes. This filing encompasses historical revenues from the fourth quarter of 2012 and projected revenues for the second quarter of 2013. 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 have submit these studies by February 1, 2013, to the Universal Service Administrative Company (USAC) and the Chief, Industry Analysis and Technology Division of the FCC.
• Carriers that have obtained telephone numbers from the North American Numbering Plan Administrator (NANPA), other carriers, or a pooling administrator in 2012, are required to file their FCC Form 502 – Numbering Resource Utilization/Forecast (NURF) by February 1, 2013. Carriers can file FCC Form 502 electronically here. A guide to assist filers can be found here.
• The Universal Service contribution factor for the first quarter of 2013 is 16.1%. A copy of the Public Notice announcing the rate can be found here. (DA 12-2014)

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

Broadband News

• Comments in the Incentive Auctions proceeding are due January 25, 2013, and Reply Comments are due March 12, 2013. To read the order setting these deadlines, click here. To read the Notice of Proposed Rulemaking seeking comments, click here. GN Docket No. 12-268.
• Reply Comments in the FCC Spectrum Holdings proceeding are due January 7, 2013. To read the NPRM, click here.

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

In the Courts

• On December 27, 2012, the U.S. District Court for the Southern District of Florida denied a putative class representative’s motion to certify her suit as a nationwide class action against Central Credit Services and Security Credit Services for allegedly violating the Telephone Consumer Protection Act (TCPA). The plaintiff alleged that Central Credit made unsolicited debt-collection calls to her mobile phone on behalf of Security Credit via an automated telephone dialing system. She further alleged that similar calls were made to another 27,583 people, satisfying the numerosity requirement of class certification. The defendants argued that the “Plaintiff’s claims are not typical or common with consumers who did not consent for their cell phones to be called.” The court focused on whether the plaintiff’s claim was factually common to those of other class members, and whether the common issues predominated over any questions affecting only individual class members – the “commonality” and “predominance” requirements in class-action parlance. It held that “resolution of each putative class member’s TCPA claim would necessarily involve an individual assessment of whether each class member consented to receive telephone calls on their cellular phone.” The court further noted that “Plaintiff’s rambling explanation … in her Reply of why she did not provide express consent for the calls she received to her cellular telephone, is a prime example of why consent is such an individualized issue.” The court therefore ruled that plaintiff failed to meet her burden of meeting all requirements for class certification, and denied her motion for class certification. Balthazor v. Central Credit Servs., Inc., No. 10-62345-CIV (S.D. Fla. Dec. 27, 2012).

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

Legislative Outlook

• On January 2, 2013, FCC Commissioner Mignon Clyburn was re-appointed to a second term by the Senate Commerce Committee. Commr. Clyburn stated in a press release upon receiving news of her re-appointment, “I look forward to working with the both the House and Senate as we share a mission to oversee communication policy that keeps the needs of American consumers paramount.” To read the full release, click here.

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

Upcoming Events

• The next Broadband Breakfast Club will be held January 15, 2013, from 8:00 to 10:00 am Eastern at Clyde’s Restaurant, 707 7th Street, NW (Chinatown/Gallery Place Metro). The title is “The President-Elect’s and Congress’ New Broadband Agenda”. To learn more or to register, 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.