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: 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 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 on 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 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 comments 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.
• Last week, AT&T announced that customers with unlimited data plans operating on its 3G or 4G networks will experience speed reductions if they use 3 Gigabytes (GBs) or more of data in a month. AT&T also stated that unlimited data plan subscribers whose phones operate on AT&T’s LTE network will experience speed reductions once they consume 5 GBs of data. The company plans to notify customers by text message when they approach the cap. In both cases, “speeds will return to normal at the start of the next billing cycle,” according to a company spokesman. AT&T first instituted data throttling last year, telling consumers that speeds would be reduced for “the heaviest 5%” of data users. Customers on tiered data plans are not affected by the announcement.

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

Federal Trade Commission (FTC) and Privacy Regulation

• On February 24, 2012, the U.S. District Court for the District of Columbia dismissed the Electronic Privacy Information Center (EPIC) lawsuit to compel the FTC to enforce the Google consent order prior to March 1, 2012, the date on which Google implemented the announced consolidation of its privacy policies. The court dismissed the suit on the ground that the “decision to enforce the Consent Order is committed to agency discretion and is not subject to judicial review.” The court expressly acknowledged, however, that it was not reaching the merits of “whether the new policies would violate the consent order or if they would be contrary to any other legal requirements.” The opinion goes on to state that “the FTC, which has advised the Court that the matter is under review, may ultimately decide to institute an enforcement action.” EPIC has appealed the district court’s decision to the Court of Appeals for the D.C. Circuit. The district court’s opinion is available here.
• On March 1, 2012, Google’s new privacy policy went into effect. The new terms and conditions consolidate more than 70 policies across Google’s products, resulting in one profile for users rather than separate logs for services like YouTube, Search, Google+, and Blogger. Lawmakers and privacy regulators in both the United States and the European Union have expressed concern over the new changes. The FTC has advised the U.S. District Court for the District of Columbia, where it had been sued to enforce a prior consent order with Google, that Google’s new privacy policy is “under review.” Also, according to the European Union’s Justice Commissioner Viviane Reding, there remain “questions about the policy’s compliance with EU data protection rules."
  
  The French Data Protection Authority (CNIL) has sent a letter to Google warning that its “preliminary analysis shows that Google’s new policy does not meet the requirements of the European Directive on Data Protection.” Google has nonetheless maintained that it is “confident that our new simple, clear and transparent privacy policy respects all European data protection laws and principles.” The CNIL letter to Google is available here.

Please contact Ross Buntrock, Alan Fishel, Stephanie Joyce, or Stephen Thompson for further information.

New Markets: SmartGrid and E-Health

• On February 28, 2012, the House Oversight and Investigations Subcommittee held a hearing titled “Critical Infrastructure Cybersecurity: Assessments of Smart Grid Security” to discuss the possibly increased threat to the electric grid posed by smart grid technology. The General Accounting Office stated in written and oral testimony that the proliferation of smart grid devices and services requires more vigilant security measures. Four specific incidents of security breaches in the electric grid were highlighted. Subcommittee Chair Cliff Stearns, R-Fla., noted that “The goal of the Smart Grid is to improve efficiency, reliability and interoperability. An equal goal however, must be to improve upon the security controls and to minimize the impact from a man-made or natural disaster to ensure reliability and avoid such possibilities.” For more information, click 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 for further information.

Developments in Intercarrier Compensation

• On February 29, 2012, the Ohio Public Utilities Commission (OH PUC) unanimously voted to require incumbent and competitive local exchange carriers (LECs) to file revised intrastate switched access tariffs 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. The OH PUC further ordered that 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 order may be found here. (Case No. 10-2387-TP-COI).

Please contact Ross Buntrock, Jon Canis, Michael Hazzard, Stephanie Joyce, or Adam Bowser for further information regarding intercarrier compensation matters.

Compliance Notes

• 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 also are required to file this form 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 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 for further information regarding compliance matters.

Broadband News

• On March 1, 2012, the U.S. Court of Appeals for the D.C. Circuit denied the motions to hold the consolidated appeal of the FCC Open Internet Order in abeyance. As to the pending motions to dismiss the appeal, the court directed the parties to address those arguments in their forthcoming briefs. Verizon v. FCC, No. 11-1355 and consolidated cases (D.C. Cir.).
• On February 27, 2012, Chairman Genachowski and Commissioner McDowell spoke in Barcelona, Spain at the GSMA Mobile World Congress. Chairman Genachowski highlighted the explosive growth and use of mobile broadband, including faster speeds and new technologies. He stated that the FCC has been focused on encouraging mobile broadband by “strengthening incentives for investment in mobile infrastructure” and “by removing barriers to private sector mobile buildout.” Commissioner McDowell began his speech in Spanish, and focused his comments on what the FCC should not be doing, such as imposing burdensome rules for voluntary incentive auctions. He also warned that an international body tasked with Internet governance would be a path “fraught with peril.” A “balkanized” Internet with some countries maintaining regulatory control and others not “would be devastating to global free trade and rising living standards.”
  
  Chairman Genachowski’s remarks may be found here.
  
  Commissioner McDowell’s remarks may be found here.

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

In the Courts

• On March 1, 2012, the United States Court of Appeals for the Fourth Circuit affirmed a Virginia federal trial court’s holding that the Fairfax County Board of Supervisors did not violate the Telecommunications Act of 1996 when it denied T-Mobile’s application to build a wireless service facility on an existing transmission pole on a public right-of-way near an historic scenic byway in Northern Virginia. The Board denied T-Mobile’s application because the visual impact of the proposed facility would be “significant and adverse,” even though it only sought to extend the pole 10 feet and add three more antennas to the pole, which already contained more antennas owned by Verizon and AT&T. The appeals court affirmed the trial court’s finding that the Board acted lawfully in denying the application, rejecting T-Mobile’s argument that the court’s test for when a municipality violated the Act was overly stringent. It explained that a “blanket ban” on granting new applications was not the only way a wireless carrier could show that a municipality violated the Act, as T-Mobile had argued. Rather, the court clarified, an applicant can prevail against a municipality if it can show that it has “a general policy that essentially guarantees rejection of all wireless facility applications,” or that the “denial of an application for one particular site is 'tantamount' to a general prohibition of service.” T-Mobile Northeast LLC v. Fairfax Co. Bd. Of Supervisors, No. 11-1060 (4th Cir.).

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

Legislative Outlook

• The House Communications Subcommittee will hold a hearing titled “Cybersecurity: The Pivotal Role of Communications Networks” on March 7, 2012, at 10:00 am Eastern in 2123 Rayburn House Office Building. For more information, click here.
• A group of Senators led by Senator John McCain, R-Ariz., have introduced S. 2151, the Strengthening and Enhancing Cybersecurity by Using Research, Education, Information, and Technology Act (SECURE IT) to address cybersecurity. McCain said of the legislation that “The SECURE IT Act strengthens America’s cybersecurity by promoting collaboration and information-sharing, updating our criminal laws to account for the growing cyber threat and enhancing research programs to protect our critical networks.” To view the full press release about S. 2151, click here.

Please contact Stephanie Joyce 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 for further information.

For further information, please contact any of our attorneys in the Arent Fox Telecommunications Group.