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: 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

• The FCC has released the Tentative Agenda for its next Open Meeting to be held March 21, 2012, at 10:30 am Eastern. It contains five items, four of which are Notices of Proposed Rulemaking that regard enhancing Low Power FM service, potential interference in the Low 700 MHz band, possible terrestrial uses of the 2 GHz band, and the exclusive contract prohibition in the program access rules. It also contains a Report and Order adopting new rules for low power radio service. To view the Tentative Agenda, click here.
• The FCC will hold workshops today and tomorrow, March 12 and 13, 2012, titled “Spectrum Efficiency and Receiver Performance”, at its headquarters in Washington, DC. The workshops are designed to “discuss the characteristics of receivers and how their performance can affect the efficient use of spectrum and opportunities for the creation of new services.” To view the Public Notice describing the workshops, click here.
• The FCC is seeking nominations to the Technical Advisory Board for First Responder Interoperability, an entity established in the Middle Class Tax Relief and Job Creation Act of 2012. The Act requires the FCC to appoint fourteen voting members to the Board by March 23, 2012, and is very specific as to the industries and professions that the voting members must represent. To view the Public Notice about the Board, click here.
• Reply Comments on the CenturyLink Petition for Waiver from portions of the FCC Intercarrier Compensation/Universal Service Reform Order (FCC 11-161) are due March 15, 2012. The Order establishes rules designed to eliminate “Phantom Traffic” — telephone traffic that lacks information necessary for carriers to determine how that traffic is classified — and determines what intercarrier charges apply to it. Specifically, it requires that carriers include the Calling Party Number, and the Charge Number if it is different, whenever they hand off a call to another carrier. On January 23, CenturyLink filed a Petition for Limited Waiver, asking to be exempted from these requirements when (1) it is acting as a long-distance carrier, and 2) it uses Multi-Frequency signaling instead of SS7. A copy of the petition can be found here. The Public Notice announcing the comment deadlines can be found here.

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

The Mobile Market

• On March 28 and 29, 2012, the FCC Emergency Access Advisory Committee will hold an exhibition of “text-to-911” technologies. The event will be held in the Technology Experience Center at that FCC’s headquarters. It will profile existing and potential solutions that allow persons with disabilities to interact with emergency service providers. In December 2011, the Advisory Committee delivered a report to the Commission with recommendations aimed at ensuring that next-generation 911 services are available to persons with disabilities. For more information, click here.
• The FCC seeks comment on the impact of a public safety network on Commercial Mobile Radio Service by April 30, 2012, with Reply Comments due May 30, 2012. The call for comments was issued in response to a decision to suspend service in San Francisco’s subway system last August. The Public Notice asks for comment on several topics, including: past practices and precedents; bases for interrupting wireless service; risks in interrupting mobile communications; scope of interruption; authority to interrupt service; and the legal constraints on service disruption. The notice is available here.
• According to recent reports, the U.S. Department of Justice has warned Apple, Inc. and five publishers that it is considering filing a complaint alleging that they conspired to fix the price of Ebooks sold for Apple’s iPad. The publishers are Hachette Livre, Harper Collins, Simon & Schuster, Penguin, and Verlagsgruppe Georg von Holzbrinck. Some of the publishers are reportedly already in settlement talks. In December 2011, the European Commission (EC) opened antitrust proceedings against Apple and the same five publishers regarding the sale of Ebooks in Europe. The EC press release on that case 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

• On May 30, 2012, the FTC will host a day-long, public “Dot Com Disclosures Workshop” addressing the need for new guidance for advertisers on appropriate disclosures for the online and mobile environment. The Workshop will concentrate on technological advancements and marketing developments that have emerged since the FTC first issued its online advertising disclosure guidelines known as “Dot Com Disclosures”. Revisions will be consistent with the goals of the original guidelines, and will continue to emphasize that general consumer protection laws apply equally to online and mobile marketers. More information on the Workshop is available here.
  
  Prior to the Workshop, the FTC is seeking suggestions for topics of discussion or original research regarding online and mobile media disclosure issues. In particular, the FTC invites parties to submit realistic examples and mock-ups that can be used for illustration and discussion. Parties may also submit requests to participate as panelists and recommend topics for the agenda. Interested parties should submit suggestions, examples, and/or requests to participate no later than March 30, 2012. Instructions for making submissions are 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 National Institute of Standards and Technology (NIST), after reviewing and incorporating public comments, has released an updated roadmap for the Smart Grid titled “NIST Framework and Roadmap for Smart Grid Interoperability Standards, Release 2.0”. According to NIST, Release 2.0 “lays out a plan for transforming the nation's aging electric power system into an interoperable smart grid — a network that will integrate information and communication technologies with the power-delivery infrastructure, enabling two-way flows of energy and communications.” It adds 22 standards, specifications, and guidelines to the standards in Release 1.0 from January 2010. In particular, Release 2.0 includes (1) developments related to cybersecurity, including a Risk Management Framework to provide guidance on security practices, and (2) a new framework for testing the conformity of devices and systems to be connected to the Smart Grid. Release 2.0 is available 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.

Please contact Stephanie Joyce, Jeffrey Rummel, G. David Carter, or Stephen Thompson (contact information below) for further information.

Developments in Intercarrier Compensation

• On March 6, 2012, the North Carolina Utilities Commission (NCUC) adopted its Staff’s recommendation to open a docket to review, as necessary, local exchange carrier (LEC) tariff filings to ensure compliance with the FCC Intercarrier Compensation/Universal Service Reform Order (FCC 11-161). NCUC Staff took issue with the revised VoIP-PSTN tariff provisions of AT&T North Carolina, Carolina and Central d/b/a CenturyLink, Verizon South, Inc., Frontier Communications of the Carolinas, Inc., and Windstream North Carolina LLC. Although the NCUC stated that AT&T’s, CenturyLink’s, and Verizon’s tariffs only required “minor” changes, they found that Frontier’s and Windstream’s tariffs violate the FCC Order. Staff reads FCC 11-161 as requiring intrastate tariffs to reflect a “Percentage VoIP Usage” (PVU) factor based only on intrastate VoIP access minutes of use rather than both intrastate and interstate VoIP access minutes, and suggested revisions to all of the carriers’ tariffs on that basis. Regarding Frontier’s and Windstream’s tariffs, however, Staff found that Windstream and Frontier improperly attempted to apply a PVU that reflected only the percentage of VoIP traffic that originated on other carriers’ networks in order to obtain higher intrastate switched access rates for VoIP traffic. Staff recommended that any PVU reflect traffic that originated or terminated in IP format. The NCUC adopt Staff’s recommendations and gave the LECs 10 days to refile their tariffs. A copy of that order may be found here. (Case No. P-100, Sub 170)

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

• Incumbent and competitive LECs operating in Ohio must file revised intrastate switched access tariffs with the Public Utilities Commission of Ohio (PUCO) that are compliant with the FCC Intercarrier Compensation/Universal Service Reform Order (FCC 11-161). The FCC Order directs price-cap LECs, rate-of-return LECs, and competitive LECs with intrastate switched access rates that are above a LEC’s interstate switched access rates to reduce intrastate rates by 50 percent of the differential between the intrastate rates and the interstate rates by July 1, 2012. Incumbent LECs are required to file revised tariffs by March 21, 2012, while competitive LECs have until April 4, 2011. Any LEC not filing revised tariffs by the applicable deadline will have its current rates be deemed automatically unjust and unreasonable and such LECs “will be prohibited from charging for intrastate intercarrier traffic until they have Commission approved tariffs.” A copy of the PUCO order may be found here.
• Completed Forms 499-A for 2011 are due April 2, 2012. These forms report a carrier’s annual revenue and are required to be filed by all interstate telecommunications carriers, interconnected Voice over Internet Protocol (VoIP) providers, providers of interstate telecommunications that offer service for a fee on a non-common carrier basis (including stand-alone audio bridging companies), and payphone providers that are aggregators. Non-interconnected VoIP providers are required to file this form as well for the assessment of fees to support the Telecommunications Relay System (TRS). The revenues reported on Form 499-A provide the basis for true-up of a company’s Universal Service contributions and serve as the basis for assessing the annual fees for the TRS, Local Number Portability (LNP) fund, the North American Numbering Plan Administration fund, and the FCC’s annual fee. The FCC released the 2012 version of the Form 499-A on March 5, 2012.
  
  A copy of the Public Notice outlining the changes to the 2012 Form 499-A can be found here.
  
  A copy of the new Form 499-A can be found here.
• Facilities-based carriers that provide international telecommunications services are required to file their annual International Circuit Status Report by April 2, 2012, if they had any activated or idle circuits as of December 31, 2012. The FCC has a manual to assist carriers with the filing, but it does not include the changes that the FCC made to the reporting requirements in the recent order in IB Docket No. 04-112, Reporting Requirements for U.S. Providers of International Telecommunications Services (FCC 11-76). These changes include:
  1. Carriers are no longer required to report circuits from off-shore U.S. points separately;
  2. Carriers are no longer required to report any circuits between the U.S. and off-shore U.S. points; and
  3. Carriers are no longer required to file a Circuit Addition Report.
  Carriers should combine off-shore circuit data with domestic data. As a result, carriers should only report circuits between the U.S. and foreign points. If a carrier is unable to implement these changes prior to the reporting deadline, the carrier may request a waiver. More information about this filing requirement may be found here. The International Points Code Listing can be found here.
  
  Additional coding instructions can be found here. The filing manual can be found here. A copy of FCC 11-76 can be found here.
• 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 March 7, 2012, Chairman Genachowski announced “a new Public-Private Initiative to drive collaboration among government and private sector entities, including non-profit organizations, on broadband-related national priorities.” Josh Gottheimer, the Chairman’s Senior Counselor, will lead the initiative, and Jordan Usdan, previously of the Wireless Bureau and will serve as Deputy Director. The initiative will focus on how to “advance key broadband goals, including those outlined in the National Broadband Plan, such as broadband adoption, digital literacy, technology and education, cybersecurity, public safety, job creation, and broadband and healthcare,” and build upon the successes of earlier initiatives. More information may be found here.

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

In the Courts

• On March 6, 2012, the United Kingdom Court of Appeal, Civil Division, largely rejected the appeal of British Telecommunications (BT) and TalkTalk Telecom Group from a decision upholding certain provisions of the Digital Economy Act 2010. The Act imposes “initial obligations” on Internet Service Providers (ISPs) to notify subscribers of infringement reports received from copyright owners, to provide copyright infringement lists to copyright owners, and to assess charges associated with those obligations. Copyright owners can require ISPs to send warning notices to the ISPs’ customers, and possibly terminate their service, if the copyright owner suspects the customer of infringing their intellectual property. BT and TalkTalk argued that the Act is inconsistent with various European Union Commission Directives, including consumer privacy protections. The appellate court largely disagreed, enforcing the lower court’s holding that the Act is consistent with prior EU Directives. The court held, however, that the aspects of the law requiring ISPs to submit the same information to Ofcom and paying associates fees do violate the EU Directives and should therefore be stricken. British Telecommunications PLC v. Sec’y of State for Culture, Olympics, Media & Sport, Case No. C1/2011/1437.

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

Legislative Outlook

• The full Senate Judiciary Committee will hold a hearing titled “The Freedom of Information Act: Safeguarding Critical Infrastructure Information and the Public's Right to Know” tomorrow, March 13, 2012, at 10:30 am Eastern in 226 Dirksen Senate Office Building. Witnesses include Melanie Pustay, Director of the Office of Information Policy at the U.S. Department of Justice, and Paul Rosenzweig, Lecturer at George Washington University Law School and Visiting Fellow at the Heritage Foundation. For more information, click here.
• The Senate Antitrust Subcommittee will hold a hearing titled “The Verizon/Cable Deals: Harmless Collaboration or a Threat to Competition and Consumers” on March 21, 2012, at 2:00 pm Eastern in 226 Dirksen Senate 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 at Arnold & Porter LLP, 555 12th Street NW, Washington, DC. 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.