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 Final Agenda for its next Open Meeting to be held March 21, 2012, at 10:30 am Eastern. It contains the same five items previously noticed, 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 Final Agenda, click here.
• The FCC will hold a Communications Security, Reliability and Interoperability Council (CSRIC) Meeting on March 22, 2012, from 9:00-11:00 am Eastern. It will be available via live webcast. For more information, 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.

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

The Mobile Market

• On March 14, 2012, Canada’s Minister of Industry Christian Paradis announced “we will be amending the Telecommunications Act.” The Ministry will largely remove all restrictions on foreign investment of Canadian telecommunications companies, allowing non-Canadian entities to own 100% of firms having less than 10% market share. It will also cap the amount of spectrum that a company may acquire in upcoming auctions for 700 MHz and 2500 MHz spectrum to take place within the next year or so. To read the Minister’s full speech, click here.
• 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.

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

Federal Trade Commission (FTC) and Privacy Regulation

• Thirteen plaintiffs have filed a class action in the U.S. District Court for the Western District of Texas, Austin Division, for alleged privacy violations by 18 companies that make popular mobile apps. The companies include some high-profile names such as Apple, Facebook, Twitter, LinkedIn, Path, Yelp!, Foursquare, Hipster, and Chillingo. The complaint alleges that these companies “have unfortunately made, distributed and sold mobile software applications ('Apps') that, once installed on a wireless mobile device, surreptitiously harvest, upload and illegally steal the owner’s address book data without the owner’s knowledge or consent.” The complaint does not specify an exact amount of damages. A copy of the complaint is available here. Opperman v. Path, Inc., et al., Case No. 12-cv-00219 (W.D. Tex.).
• 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 13, 2012, Verizon Business Services filed a motion to dismiss the complaint of Charter Fiberlink-Illinois, LLC with the Illinois Commerce Commission (ICC). Charter filed its complaint on January 26, 2012, alleging that Verizon has refused to pay switched access charges on calls that originate or terminate in Internet Protocol format. Charter alleges that the FCC “has made clear that the unsettled classification of retail VoIP services has no bearing on the wholesale relationships between telecommunications carriers such as Verizon and Charter that exchange local or long distance telephone traffic.” In moving to dismiss Charter’s complaint, Verizon argues that, consistent with the FCC Intercarrier Compensation/Universal Service Reform Order (FCC 11-161), the parties must exchange VoIP-PSTN traffic at rates equal to interstate switched access rates for traditional traffic after the effective date of the Order. But if, Verizon argues, Charter is seeking payment for the exchange of VoIP-PSTN traffic prior to the effective date of the Order, such relief is precluded because the Illinois Public Utilities Act exempts both information services and interconnected VoIP services from ICC jurisdiction. Verizon also argues that VoIP services are “subject to the exclusive jurisdiction of the FCC” and thus asked the ICC to dismiss Charter’s complaint in its entirety. Docket No. 12-0073.

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 second quarter of 2012 is 17.4%. A copy of the Public Notice announcing the rate can be found here. (DA-12-396)

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 14, 2012, in remarks to the American Cable Association convention, Chairman Genachowski stated that the FCC is committed to funding broadband projects in unserved areas, but still requires data on availability. The Chairman also encouraged ACA members to work toward bringing broadband to areas adjacent to their own territories. Finally, he discussed how the Universal Service Fund has been overhauled to encourage competition in broadband deployment and to end USF subsidies where competition is already in place.
• AT&T, Inc. is facing a shareholder vote that, if passed, would require it to follow net neutrality principles for its wireless network. AT&T fought including the resolution, but the Securities and Exchange Commission (SEC) stated that AT&T must include it on the ground that net neutrality has risen in importance beyond an “ordinary business matter” to a “significant policy consideration.” Mike D of the Beastie Boys was part of the group that obtained SEC approval to require the vote on the resolution. AT&T has sent a proxy statement urging shareholders to vote against the measure, stating that it will have a negative impact on the company’s operations.

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

In the Courts

• On March 15, 2012, the United States Court of Appeals for the Fourth Circuit denied the appeals of AT&T Mobility and Verizon Wireless from North Carolina Utilities Commission (NCUC) orders stating that several rural LECs are entitled to interconnection with the wireless carriers on particular rates and conditions. A federal district court in North Carolina already had affirmed the NCUC orders. The court of appeals first rejected the wireless carries' arguments that the NCUC was owed no deference, holding that “the NCUC’s decision is worthy of some deference.” The court then rejected the wireless carriers' substantive arguments, finding the NCUC correct in holding that Section 251 of the Telecommunications Act of 1996 “and the broader statutory scheme” entitle LECs to designate just one point of interconnection in order to exchange traffic. The court also agreed that the NCUC did not violate federal law when it modified federal guidelines in setting the relevant rates. New Cingular Wireless PCS v. Finley, Nos. 10-2243, et al. (4th Cir.).

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

Legislative Outlook

• 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.
• The House Subcommittee on Courts, Commercial and Administrative Law will hold a hearing titled “Federal Regulations and Regulatory Reform Under the Obama Administration” on March 21, 2012, at 1:30 pm Eastern in 2141 Rayburn House Office Building. For more information, click here.

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

Upcoming Events

• The Federal Communications Bar Association (FCBA) 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.
• The FCBA Annual Conference will be held May 4-6, 2012, at the Hyatt Regency Chesapeake Bay. 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.