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 scheduled for May 24, 2012, at 10:30 Eastern. It contains three items: a Report and Order on broadband deployment in the 800 MHz band; a Report and Order and Further Notice of Proposed Rulemaking on Medical Body Area Networks; and a Notice of Inquiry on Deployable Arial Communications Architecture. To read the Tentative Agenda, click here.
  
  The next two Open Meetings will be held June 13, 2012, and July 19, 2012.

• Reply Comments on the petition for declaratory ruling of SoundBite Communications, Inc. are due tomorrow, May 15, 2012. See April 23 edition of This Week in Telecom. The petition asks the FCC to declare that text messages confirming a consumer’s opt-out do not violate the Telephone Consumer Protection Act (TCPA).

• The FCC will hold a “Channel Sharing Workshop” on May 22, 2012, from 10:00 am to 12:00 pm Eastern. It will focus on “how broadcasters are approaching the financial and strategic opportunities presented by channel sharing.” Panelists will include Lonna Thompson, Executive Vice President and COO of the Association of Public Television Stations. Details are available here.

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

The Mobile Market

• On May 9, 2012, there were media reports from the CTIA Wireless 2012 conference that both Verizon and T-Mobile are contemplating so-called “toll-free” data options to allow a content provider or app developer to buy data capacity for a consumer in order that he or she can access the website or app without dipping into their data plans. AT&T had discussed this possibility earlier in the year, but declined to discuss the issue at the CTIA conference. The earlier announcement by AT&T drew criticism from net neutrality supporters. Verizon acknowledged that it had to consider net neutrality issues before any option was available.

• Reply Comments to the FCC on the impact of a public safety network on Commercial Mobile Radio Service are 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 May 8, 2012, the FTC announced that it had reached a settlement with the social networking service Myspace over charges that it allowed advertisers to access personally identifiable information despite previous assurances that it would keep such information private. Specifically, the FTC found that Myspace Advertisers were able to access the unique “Friend ID” of users and link this identifier to other personal information. The settlement requires Myspace to implement a comprehensive privacy program, submit to independent audits, and refrain from misrepresentations about its privacy controls. More information regarding the settlement is available here.

• On May 9, 2012, FTC Chairman Jon Leibowitz testified before Congress about the agency’s efforts to protect consumer privacy, including the FTC’s support for implementation of a “Do Not Track” mechanism that would allow consumers to control the tracking of their online activities across websites. The Chairman also noted that the FTC encourages Congress to consider enacting general privacy legislation, as well as data security and breach notification legislation. More information regarding Chairman Leibowitz’s testimony 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.

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) have announced a Critical Infrastructure Communications Policy Summit to be held on 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.

• The U.S. Department of Energy (DOE) has announced a new “Apps for Energy” competition in partnership with PG&E, Itron, and Gridwise Alliance. The competition challenges application developers to use the Green Button data access program to make residential and commercial utility data more accessible and useful to the consumer. As part of DOE’s smart grid initiative, the Green Button program seeks to make energy usage data available in a streamlined and easy-to-understand format. The developers who submit the best apps will win part of a $100,000 cash prize, and submissions are due tomorrow, May 15, 2012 by 8:00 pm EST. Winners will be announced May 22, 2012. The official rules and deadlines are available here. More information regarding the Green Button initiative 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 May 1, 2012, the South Dakota Public Utilities Commission (SDPUC) granted waivers to several local exchange carriers (LECs) from rules governing switched access rates. On March 2, 2012, the South Dakota Telecommunications Association, the Local Exchange Carriers Association, and Qwest Corp. d/b/a CenturyLink QC applied for a waiver of South Dakota Administrative Rules 20:10:29:10, 20:10:29:12, and 20:10:29:16 that require LECs to tariff rates that are equal for both originating and terminating intrastate access services. In their application, the carriers argued that the FCC’s Universal Service and Intercarrier Compensation Reform Order, FCC 11-161 (Nov. 18, 2011), addressed only terminating end office switching and certain transport rates elements. Although intrastate terminating access charges are now subject to the FCC’s adopted “transition path” to bill-and-keep, they argued, the FCC did not adopt any “transition path” for originating access rates. As such, the carriers would have been required to reduce their intrastate originating switched access rates in order to keep these rates equal to their terminating rates. In its order granting the waivers, the SDPUC suspended the provisions in Rules 20:10:29:10, 20:10:29:12, and 20:10:29:16 that state “[t]he per minute charge is equal for both originating and terminating traffic.” Docket No. TC12-027.

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

• Local Exchange Carriers (LECs) that provide service in Colorado are required to modify their intrastate switched access tariffs to comply with the FCC’s Connect America Plan by May 18, 2012. The Colorado Public Utilities Commission (CPUC) is requiring LECs to file advice letters and tariffs with an effective date of July 1, 2012. In addition, LECs are required to provide the Commission with their version of Attachment A to the order with their advice letter and tariff filings. Attachment A is a spreadsheet that details the LEC’s rate step-down. Finally, LECs that provide a blended rate, rather than element-by-element rates in their intrastate switched access tariffs are required to disaggregate their blended rates. A copy of the order can be found here. A sample draft of Attachment A can be found here. Docket No. 11M-1036T, Decision C-12-0420.

• 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 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 May 7, 2012, Senator Al Franken, D-Minn., sent a letter to the FCC and Department of Justice outlining his concerns with Comcast’s compliance with the Comcast/NBCUniversal merger conditions. With regard to the net neutrality conditions, Sen. Franken urged both agencies to investigate Comcast’s announcement that it will not count its Xbox 360 video-streaming service toward a user’s 250-gigabyte data limit. See April 2 edition of This Week in Telecom. Sen. Franken did not opine that Comcast had violated the merger conditions, but did state that its announcement raises serious concerns about whether Comcast is favoring its own content over competitors’ content. Sen. Franken also noted that Sony “is reconsidering” its launch of smart TVs because of the Comcast data-cap issues. The full letter is available here.

• On May 2, 2012, the FCC announced details for a mobility auction to bring 3G and 4G mobile broadband to rural areas. The auction will take place on September 27, 2012 and will distribute as much as $300 million from the USF. Short form applications must be filed between June 27 and July 11, 2012. A news release on the auction is available here. The procedures for the auction are available here.

• On April 4, 2012, the National Telecommunications and Information Administration (NTIA) requested comment on its proposal “to add 12 questions to the U.S. Census Bureau’s October 2012 Current Population Survey (CPS) in order to gather reliable data on broadband (also known as high-speed Internet) use by U.S. households.” The questions are intended to gauge progress on President Obama’s goal of universal, affordable broadband access for all Americans and to identify problem areas. Comments are due June 4, 2012. The Federal Register notice is 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 May 8, 2012, the United States District Court for the District of New Jersey dismissed a case that Verizon Wireless and OnStar brought against several health-plan providers for making allegedly unlawful “robocalls” in violation of the Telephone Consumer Protection Act (TCPA) and Telemarketing and Consumer Fraud and Abuse Prevention Act. The court dismissed the claims on the ground that the plaintiffs do not have standing and are not within the “zone of interests” protected by these statutes. The court found that a “burgeoning body of case law establishes that only the ‘called party,’ i.e., the ‘intended recipient,’ has statutory standing to bring suit under the TCPA.” Verizon tried to stand in the shoes of its employees to whom it provides so-called concession accounts, but the court was unpersuaded. The court also disagreed that these laws were drafted to protect the injuries complained of by Verizon and OnStar: “Plaintiffs do not fall into the zone of interests protected by the TCPA. Their damages are not of the vexatious and intrusive nuisance nature sought to be redressed by Congress in enacting the TCPA, but rather are indirect, economic and inherent to their business.” Cellco Partnership v. Wilcrest Health Care Management Inc., et al., No. 3:09-cv-03534 (D. N.J.).

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

Legislative Outlook

• Three hearings related to telecommunications and technology will be held May 16, 2012:


• The full Senate Commerce Committee will hold a hearing titled “Oversight of the Federal Communications Commission” at 2:30 pm Eastern in 253 Russell Senate Office Building. For more information, click here.
• The full House Judiciary Committee will hold a hearing titled “Implementation of the Leahy-Smith America Invents Act” at 10:00 am Eastern in 2141 Rayburn House Office Building. For more information, click here.
• The House Telecom Subcommittee will hold a hearing titled “Broadband Loans and Grants” at 10:00 am Eastern in 2123 Rayburn House Office Building. For more information, click here.

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

Upcoming Events

• Jeffrey Rummel, a Partner in our Group, will give a speech titled “FCC Licensing/Regulation of the Manufacture, Development & Testing of Military Communications Systems” at the Military Wireless Conference to be held May 15-17, 2012, at the Sheraton National Hotel in Arlington, VA. For more information, click here.

Please contact Jeffrey Rummel, 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.