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.

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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 next FCC Open Meeting will be held April 27, 2012, at 11:00 am Eastern. We will provide the Tentative Agenda when it is released.

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

The Mobile Market

• On March 22, 2012, the FCC released a Notice of Proposed Rulemaking and Notice of Inquiry that seeks to “increase the nation’s supply of spectrum for mobile broadband by removing unnecessary barriers to flexible use of 40 megahertz of additional spectrum currently assigned to the Mobile Satellite Service (MSS) in the 2 GHz band.” In line with the National Broadband Plan, the NPRM is designed to provide for the flexible use of this spectrum for broadband deployment. The NOI seeks comment on other ways to free up additional spectrum. Comments on the NPRM/NOI will be due 30 days after publication in the Federal Register, and Reply Comments will be due 15 days after that date. More information may be found here. The NPRM/NOI (FCC 12-32) is available 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

• On March 20, 2012, several residents of California and New York filed separate class action suits against Google regarding recent changes to its privacy policy. Both suits allege that the changes violate users’ privacy rights, and collectively lodge claims under the Google-FTC consent decree, the Federal Wiretap Act, the Stored Electronic Communications Act, and the Computer Fraud Abuse Act. The New York suit, Nisenbaum v. Google, was filed in the U.S. District Court for the Southern District of New York and the complaint is available here. The California suit, DeMars v. Google, was filed in the U.S. District Court for the Northern District of California and the complaint is available here.
• 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 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 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 20, 2012, the New York Public Service Commission (NY PSC) granted the motion of Verizon Business, a local exchange carrier (LEC), to dismiss the complaint of Qwest Communications Company alleging that it provided off-tariff access services to other interexchange carriers at rates that Verizon did not offer to Qwest. As the PSC explained, “[w]hile Verizon Business does not deny the existence of off-tariff agreements, it states that Qwest is not entitled to the rates established in the agreements because they are reciprocal in nature.” It found, however, that Qwest had no claim to a refund or other monetary relief, because it “established that Qwest could not have qualified for the special pricing arrangement.”
  
  Quest’s complaint included other LECs such as XO, Granite, and Broadwing. For those LECs, a question of fact remains as to whether Qwest could have qualified for the off-tariff rates, and therefore the NY PSC allowed discovery to proceed. It also required the remaining LECs to file “a description of any rates established in off-tariff agreements with any IXC currently in effect, or a letter stating that no such agreements exist, within 15 business days” of the date of the order. Complaint of Qwest Commc’ns Co. against MCI Metro Access Transmission Services, LLC, et al., N.Y.P.S.C. No. 09-C-0555. The NY PSC order is available here.

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 were 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 22, 2012, FCC Chairman Julius Genachowski announced the formation of the Incentive Auction Task Force to be headed by Ruth Milkman on an interim basis. It will implement incentive auctions by coordinating the efforts among the FCC’s Bureaus and Offices in accordance with the recent legislation authorizing the auctions. Other members of the Task Force include Rick Kaplan of the Wireless Telecommunications Bureau, Bill Lake of the Media Bureaus, Julie Knapp of the Office of Engineering and Technology, Chief Economist Marius Schwartz, Chief Technologist Henning Schulzrinne, and General Counsel Austin Schlick. 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 15, 2012, the United States Court of Appeals for the Fourth Circuit issued a briefing order in Sprint Communications Company’s appeal of the judgment awarding over $20 million to CenturyLink-affiliated LECs. Sprint’s opening brief is due April 24, 2012, and CenturyLink’s responsive brief is due May 29, 2012. The U.S. District Court for the Eastern District of Virginia found that Sprint breached its interconnection agreements (ICAs) when it stopped paying access charges to the CenturyLink LECs for VOIP calls, even though the ICAs provided that VoIP calls “shall be compensated in the same manner as voice traffic.” The court found that Sprint had followed that agreement for many years, but then, in the summer of 2009, “was in considerable need of cutting costs,” and began disputing CenturyLink’s invoices for VoIP traffic. The court concluded that “Sprint’s justifications for refusing to pay access on VoIP-originated traffic, and its underlying interpretation of the ICAs, defy credulity,” and found that “Sprint’s defense is founded on post hoc rationalizations developed by its in-house counsel and billing division as part of Sprint’s cost-cutting efforts, and the witnesses who testified in support of the defense were not at all credible.” Central Tel. Co. v. Sprint Commc’ns Co., No. 3:09-cv-720 (E.D. Va.); No. 12-1322 (4th Cir.).

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

Legislative Outlook

• The House Communications Subcommittee will hold a hearing titled “Cybersecurity: Threats to Communications Networks and Public-Sector Responses” on March 28, 2012, at 10:00 am Eastern in 2322 Rayburn House Office Building.
• The House Subcommittee on Commerce, Manufacturing, and Trade will hold a hearing titled “Balancing Privacy and Innovation: Does the President's Proposal Tip the Scale?” on March 29, 2012, at 10:00 am Eastern in 2123 Rayburn House Office Building. To view the notice, click here.

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

Upcoming Events

• 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.