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.

Our Group has been named once again by The Legal 500, an international publication on legal services, as an Editor’s Selection in two categories: Telecoms and Media – Regulatory and Telecoms and Media – Transactional.

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 Events

Federal Communications Commission (FCC) Announcements

• On June 14, 2012, President Obama issued an Executive Order on Accelerating Broadband Infrastructure Deployment. It establishes a Broadband Deployment on Federal Property Working Group to provide a report within one year on the progress in deploying broadband to federal agencies and offices. Of the Executive Order, FCC Chairman Julius Genachowski stated in remarks to the U.S. Ignite Launch event that “This is a big deal. ... This Executive Order will foster job creation by reforming the procedures for access to federal lands and buildings – making buildout faster and cheaper.”
  
  To read the Executive Order, click here.
  
  To read the Chairman’s full remarks, click here.

• The next FCC Open Meeting is scheduled for July 19, 2012, at 10:30 am Eastern. We will provide the Tentative Agenda when it is released.

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

The Mobile Market

• The FCC has set the comment cycle in the proceeding concerning the privacy and security of information stored on mobile devices. It seeks comment on the privacy and security practices of mobile wireless service providers and the application of existing privacy and security requirements to customer information stored on mobile communications devices. Comments are due July 13, 2012; Reply Comments are due July 30, 2012. CC Docket No. 96-115. The text of the Public Notice is available here.
• The FCC Office of Engineering and Technology has circulated an Order, Notice of Proposed Rulemaking, and Notice of Inquiry to the Commissioners regarding whether the radio frequency (RF) exposure standards should be modified. A Commission spokesperson stated that the agency is “confident” that current standards, last reviewed in 1996, pose no risks to consumers, and that this is a “routine review” of those standards. Environmental activists and some in the medical community have argued that the RF emission standards do not adequately protect users of wireless devices, contending that research shows correlations between mobile phone use and brain tumors and thus modifications of the RF are warranted. If the item is approved by the Commission, comment would be sought on a number of issues concerning exposure to wireless devices, towers, and base stations.

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

Federal Trade Commission (FTC) and Privacy Regulation

• In the wake of the FCC’s April 13, 2012 Notice of Apparent Liability for Forfeiture to Google regarding Street View, the U.K.’s data protection agency, the Information Commissioner’s Office (ICO), has opened its own inquiry into the matter. On June 11, 2012, the ICO issued a letter to Google demanding prompt answers to a list of questions regarding Google’s street-mapping data collection practices. Google has previously admitted to collecting private data during its street view sweeps, though by mistake. The ICO has asked Google to describe what type of data it captured, when Google management became aware of the issue, and requested copies of the original Street View software design. The ICO’s letter 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

• The U.S. Department of Energy and the Utilities Telecom Council (UTC) will hold the Critical Infrastructure Communications Policy Summit tomorrow, June 19, 2012, in Washington, DC. The Summit will focus on “aligning policies, technologies and communications networks that support integrating variable energy resources, optimizing the use of existing resources, supporting smart cities, and public safety communications to ensure the health, safety and welfare of Americans.” More information regarding the Summit 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 June 12, 2012, YMax Communications Corp. filed an opposition to the complaint of AT&T Communications of Maryland LLC at the Maryland Public Service Commission (MPSC) challenging YMax’s new intrastate switched access tariff. AT&T filed its complaint on May 18, 2012, alleging that YMax’s tariff revisions do not comply with the FCC Intercarrier Compensation/Universal Service Reform Order (FCC 11-161) regarding VoIP-PSTN traffic. AT&T argues that YMax’s tariff would allow it to bill interexchange carriers for switching and transport functions provided by LECs other than YMax, although the FCC’s new rules state that “[t]his rule does not permit a local exchange carrier to charge for functions not performed by the local exchange carrier itself or the affiliate or unaffiliated provider of interconnected VoIP service.” 47 C.F.R. § 51.913(b).
  
  AT&T specifically objected to YMax’s tariff language stating that “the provision by the company of any portion of the transport or termination of VoIP-PSTN access traffic shall be considered the functional equivalent of the access service typically provided by an incumbent local exchange carrier, regardless of the technology or network structure employed by the company or the VoIP service provider to perform that function.” AT&T asserted that the Colorado Public Utilities Commission recently suspended and rejected YMax’s Colorado intrastate switched access tariff containing the same language, and that the FCC rejected YMax’s interpretation of the VoIP-PSTN intercarrier compensation rules after YMax submitted a request for clarification on February 3, 2012. In its opposition to AT&T’s complaint, YMax stated that it is willing to remove the provision from its tariff, but it “will continue to rely on the FCC’s rules stating that a local exchange carrier’s ability to impose access charges does not depend on the technology or network structure employed by the carrier or by a VoIP service provider to perform the functions associated with access service.” Docket No. M.L. 138987.

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 required effective date for new federal interstate access tariffs is July 3, 2012. On June 5, 2012, the Wireline Competition Bureau of the FCC released DA 12-870 in the Connect America docket to clarify a number of issues relating to the step-down of intrastate rates. It  grants a waiver of the previous deadline of July 1, 2012 for interstate access rates. The FCC is encouraging state commissions to issue a similar extension for intrastate switched access tariff filings. A copy of DA 12-870 may be found here. (WC Docket No. 10-90)
• Local exchange carriers (LECs) operating in Iowa are required to update their intrastate switched access tariffs to comply with the Connect America Order (FCC 11-161). In this filing, LECs are required to step-down their intrastate access rates to 50% of the difference between the LEC’s intrastate access rates and interstate access rates. The Iowa Utilities Board (IUB) has set a timeline for these filings in order that the new access rates are effective July 1, 2012. LECs that believe their current intrastate access tariffs comply with the Connect America plan are required to file a letter with the IUB by July 1, 2012, explaining how their existing tariff is in compliance. A copy of the order can be found here. IAC-2012-2214.
• The Maryland Public Service Commission (MD PSC) has ordered all facilities-based LECs to update their intrastate tariffs to reflect the implementation of the Connect America Order’s Internet-protocol (IP) traffic provisions in the Connect America Order (FCC 11-161) by July 1, 2012. These provisions allow LECs to charge switched access charges for all IP-related traffic at interstate rates. The MD PSC warned that LECs that do not make these filings in a timely manner may be out of compliance and will not be allowed to charge for intrastate switched access until their revised tariff is approved by the MD PSC. A copy of the MD PSC notice can be found here. The Connect America Order may be found here.
• The Universal Service contribution factor for the third quarter of 2012 is 15.7%. A copy of the Public Notice announcing the rate can be found here. (DA 12-917)

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

Broadband News

• It has been reported that the Department of Justice (DOJ) has initiated an antitrust investigation of cable company data limits and other practices that limit access to the content of competing companies like Hulu and Netflix. Comcast has come under fire recently for excluding its own Xbox 360 video offering from data caps. See April 2, April 23, and May 21 editions of This Week in Telecom. Neither DOJ nor any target company has commented on the investigation.
• On June 13, 2012, the Internet Corporation for Assigned Names and Numbers (ICANN) released a list of more than 1,900 new generic Top-Level Domain Names (gTLDs) that have been applied for as part of ICANN’s global expansion of the domain name system. ICANN is providing a short time period for interested parties to file public comments and/or formal objections to any proposed gTLDs. Google filed for 101 gTLDs, such as “.lol” and “.boo”, and Amazon filed for 76, including “.cloud”. Many gTLDs have multiple claims on them, such as “.app”. The full list of potential gTLDs is here.
• The FCC has announced the panelists and the agenda for its TV Broadcaster Relocation Fund Workshop to be held June 25, 2012, from 2:00-3:30 pm Eastern. The workshop regards “the Commission’s program to reimburse the costs that some broadcasters are likely to incur as a result of channel reassignments in connection with the repacking authorized by the 2012 Spectrum Act.” The TV Broadcaster Relocation Fund holds $1.75 Billion. Panelists will include representatives from Harris Corporation, Deloitte Consulting, Sprint Nextel Corporation, and the National Association of Broadcasters. More information may be found here.
• Short form applications for the FCC mobility auction must be filed between June 27 and July 11, 2012. The auction will take place on September 27, 2012 and will distribute as much as $300 million from the USF. A news release on the auction is available here.  The procedures for the auction are 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 June 12, 2012, the United States District Court for the Northern District of California dismissed several claims in the putative nationwide class action brought against Apple and various mobile-industry interests – including Google and AdMob – alleging violations of consumer privacy. The court dismissed with prejudice all claims brought against the “Mobile Industry Defendants,” namely Google, Admob, Flurry, AdMarval, and Medialets. The court also dismissed a host of statutory claims (e.g., Stored Communications Act and Wiretap Act) and common law claims (e.g., trespass, invasion of privacy, conversion, negligence, and unjust enrichment) against Apple, but retained two claims against Apple for violations of the California Consumer Legal Remedies Act and the Unfair Competition Law. As the court explained, “Plaintiffs have a colorable argument that the terms of the privacy agreement were ambiguous[.]” In re iPhone Application Litigation, No. 11–MD–02250–LHK (N.D. Cal.).

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

Legislative Outlook

• Rep. Greg Walden, R-Ore., Chair of the House Communications Subcommittee, announced two upcoming hearings: a hearing June 27, 2012, on “how consumers access video content”; and a hearing July 10, 2012, on “on oversight of the Federal Communications Commission.” More information is available here.
• On June 14, 2012, Sen. John “Jay” Rockefeller IV, D-W.Va., Chair of the Senate Commerce Committee, introduced anti-cramming legislation in the form of S. 3291, the Fair Telephone Billing Act of 2012. Sen. Rockefeller stated that “This legislation will prohibit most third-party charges and will ensure that we put an end to cramming on wireline telephone bills once and for all.” The legislation would exempt “legitimate third-party charges of telephone-related services, like collect calls, and ‘bundled’ services,” according to a press release.
  
  To read S. 3291, click here.
  
  To read a one-page summary of S. 3291, click here.
  
  To read the Committee’s press release, click here.

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

Upcoming Events

• The 16th Annual Federal Communications Bar Association (FCBA) Golf Tournament will be held today, June 18, 2012, at The Country Club at Woodmore in Mitchellville, Maryland. All proceeds will go to the FCBA Foundation. To find out more, click here.
• The FCBA is hosting an evening at a Washington Nationals game on July 17, 2012. To find out more, 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.