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.

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.
• 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

• The exclusion order issued by the U.S. International Trade Commission (ITC) against importation of certain HTC mobile devices is effective April 19, 2012, after the ITC affirmed that HTC Android devices infringed an Apple patent on “data tapping” techniques. Apple had claimed violations of 10 patents, but prevailed as to just one. The ITC’s decision can 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

• 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. The deadline for filing comments is 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

• According to Pike Research’s quarterly tracker report, smart meter and smart grid deployments rose significantly during 2011, particularly in North America and China. The report is updated quarterly and provides detailed analysis of worldwide utility smart grid and smart meter programs, including tracking of customer endpoints, metering vendors, communications vendors, and systems integrators. According to the report, global smart meter shipments reached 19.2 million in the third quarter of 2011, which represents a 5.3 percent increase over the second quarter of 2011. More information regarding the report 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 5, 2012, the Missouri Public Service Commission (MPSC) ordered Halo Wireless, Inc. and AT&T Missouri to answer the petition of several rural local exchange carriers (RLECs) concerning transit traffic under the Halo-AT&T interconnection agreement (ICA). The RLECs, which include Chariton Valley Telephone Corporation, Choctaw Telephone Company, Mid-Missouri Telephone Company, and MoKan Dial, Inc., originally filed their petition with the MPSC in August 2011, alleging that Halo violated the terms of the ICA. The RLECs assert that the ICA requires Halo to first obtain traffic exchange agreements with the RLECs prior to transiting wireless traffic over the AT&T network to Halo. Halo removed the case to the United States District Court for the Western District of Missouri on August 19, 2011, after it declared bankruptcy, and sought a stay of the proceeding. The court, however, ruled that the federal bankruptcy code’s automatic stay provisions do not apply to state commission proceedings and remanded the RLEC petition back to the MPSC. The MPSC ordered Halo and AT&T to file their answers to the petition by January 13, 2012. Docket No. TO-2012-0035.

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

• 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.
• 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) 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.
• 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 January 3, 2012, Lawrence Strickling of the National Telecommunications and Information Administration (NTIA) sent a letter to the Internet Corporation for Assigned Names and Numbers (ICANN) urging it to take measures to ease concerns about the expansion of generic top-level domains (gTLDs). Specifically, Strickling advised ICANN to take measures to “(i) to minimize the perceived need for defensive registrations; (ii) to implement promptly ICANN's existing commitments for law enforcement and consumer protection; and (iii) to ensure better education of stakeholders.” These measures, he stated, would ensure that stakeholders understand the necessity for defensive registrations increase transparency from ICANN. As reported earlier, ICANN approved a system for domain names that will allow brand owners to register their own gTLDs - i.e., “.brand” - as well as open the floodgates for the creation of potentially hundreds of new domain names based upon generic terms like “.travel”, “.bank”, and “.nyc”. ICANN’s Twitter feed, available here, indicates that it still plans to accept the first round of applications starting January 12, 2012. Mr. Strickling’s letter 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 3, 2012, the United States District Court for the Northern District of California granted AT&T’s motion to compel arbitration in a putative class action claiming that AT&T aggressively marketed its cellular “service to users of smartphones and other data hungry devices,” despite “knowing [that its] network infrastructure could not possibly accommodate the demands the increased usage would cause.” The court rejected all of the plaintiffs’ arguments against the individual arbitration required under AT&T’s terms of service, including that they did not recall having ever seen the arbitration clause. “If a party could get out of a contract by arguing that he did not recall making it, contracts would be meaningless,” the court stated. The court also held that AT&T’s arbitration clause was not unenforceable merely because plaintiff would be unable to obtain the injunctive relief available under California law, ruling that the “FAA preempts California’s preclusion of public injunctive relief claims from arbitration, at least for actions in federal court.” Finally, the court also rejected the plaintiffs’ argument that arbitration is prohibitively expensive, noting that AT&T promised to pay the arbitration costs: “[the plaintiffs] can now rely on AT&T’s assertion in a public filing that ‘[t]he stakes of plaintiffs’ claims would be far below the $75,000 threshold if they were to initiate individual arbitrations,’ which should give them great confidence that AT&T would pay for all arbitration costs in their cases.” Blau v. AT&T Mobility, No. C 11-00541, 2012 WL 10546 (N.D. Cal.).

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

Legislative Outlook

• Senator Ron Wyden, D-Ore., has introduced S. 2029, the “Online Protection and Enforcement of Digital Trade Act” or the “OPEN Act”, as an alternative to SOPA in the House and the Protect IP bill in the Senate. The OPEN Act retains the authorization of FTC action against foreign entities that infringe U.S. trademarks online but does not include the broad take-down provisions in SOPA that have drawn so much criticism. It has been referred to the Senate Finance Committee for consideration. AOL, eBay, Facebook, Google, LinkedIn, Mozilla, Twitter, Yahoo, and Zynga have expressed support for S. 2029. To read the bill, 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: