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 FCC has released the Final Agenda for its next Open Meeting scheduled for May 24, 2012, at 10:30 Eastern. It contains the three items previously noticed: 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 Final Agenda, click here.

• The next two Open Meetings will be held June 13, 2012, and July 19, 2012.

• The FCC will hold a “Channel Sharing Workshop” tomorrow, 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

• The state of Louisiana and the cities of New Orleans and Baton Rouge are urging the FCC not to dismiss their petition for a waiver that would allow them to deploy a public safety broadband network. The FCC is considering an order dismissing more than three dozen such petitions in light of new legislation providing for the development and deployment of a nationwide public safety network. Louisiana, New Orleans, and Baton Rouge argue that the waiver is necessary for the forthcoming hurricane season and the need to plan for next year’s Super Bowl, which will be held in New Orleans.

• 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

• Twitter announced on May 17, 2012, that it supports “Do Not Track,” the Internet privacy feature launched last year by Mozilla for users of its Firefox web browser. Although the FTC has not yet made a final decision regarding whether to fully support “Do Not Track”, it first proposed the policy in 2010 and has applauded Twitter’s announcement. “Do Not Track” allows users to block third-party cookies which are used to piece together Internet users’ personal information and online activity. To opt into this service on Twitter, users must select the “Do Not Track” feature within the Firefox browser. In its announcement, Twitter stated “We hope that our support of DNT highlights its importance as a privacy tool for consumers and creates even more interest and wider adoption across the web.” Twitter’s announcement is here. More information regarding the FTC’s “Do Not Track” effort 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

• As noted above in FCC Announcements, on May 24 the FCC will consider new rules to permit use of spectrum for wireless medical devices known as Medical Body Area Networks (MBANs). Proponents of the new rules, including FCC Chairman Genachowski, believe that it will provide wireless health manufacturers with increased spectrum capacity and reliability, thus allowing for the development of interoperable mobile medical devices. The FCC anticipates that MBANs will have a significant impact on the provision of healthcare in the United States. For example, MBANs can be used to provide continuous monitoring of the elderly or those receiving treatment within a healthcare facility or even at home. According to a study by the Institute for Healthcare Improvement, a patient that is under full-time electronic monitoring has a 48% chance of surviving a cardiac arrest, while the chances for unmonitored patients are as low as 6%. The United States would be the first country to dedicate spectrum for the use of MBANs. The MBAN Notice of Proposed Rulemaking is available here.

• 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.

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

Developments in Intercarrier Compensation

• On May 16, 2012, Staff of the North Carolina Utilities Commission (NCUC) recommended an extension for incumbent local exchange carriers (ILECs), until June 15, 2012, to file revised access tariffs that comply with the recent Orders on Reconsideration released by the FCC following its Connect America Order (FCC 11-161). On April 25, 2012, the FCC released a Second Order on Reconsideration which stated, among other things, that from December 29, 2011 until the effective date of the Second Order on Reconsideration carriers cannot tariff rates higher than interstate access charges for the origination of intrastate toll VoIP-PSTN traffic. After the effective date of the Second Order on Reconsideration, carriers may tariff originating switched access charges for toll VoIP-PSTN charges at rates equal to their intrastate access rates that were in effect as of December 28, 2011. NCUC staff recommended that ILECs be required to file supporting documents for their revised tariffs by June 1, 2012, and the revised tariffs no later than June 15, 2012. Docket 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

• Local exchange carriers (LECs) operating in Iowa are required to update their intrastate switched access tariffs to comply with the Connect America Order (FCC 11-161). In this filing, LECs are required to step-down their intrastate access rates to 50% of the difference between the LEC’s intrastate access rates and interstate access rates. The Iowa Utilities Board (IUB) has set a timeline for these filings in order that the new access rates are effective July 1, 2012. LECs that file their own tariffs must file their revisions by May 29, 2012. LECs that believe their current intrastate access tariffs comply with the Connect America plan are required to file a letter with the IUB by July 1, 2012, explaining how their existing tariff is in compliance. A copy of the order can be found here. IAC-2012-2214.

• 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

• Comcast’s decision to exclude its Xbox 360 video-streaming service from the broadband data limit (see April 2 edition of This Week in Telecom) continues to generate net neutrality questions. On May 13, 2012, technology expert Bryan Berg announced that he has “reasonable evidence” that Comcast is prioritizing its own Xbox 360 traffic over other Internet traffic. He concludes that Comcast is using separate “DOCSIS service flows” to prioritize Xbox 360 traffic. As noted earlier, Netflix’s CEO has also taken issue with the Comcast Xbox 360 video-streaming service (see April 23 edition of This Week in Telecom). On May 15, Tony Werner, Comcast Executive Vice President & Chief Technology Officer, wrote a blog post to address the controversy and explain why Comcast believes it is not violating net neutrality rules. Comcast continues to defend the service by stating that the Xbox 360 is acting as an additional cable box and is not being streamed over the Internet like Hulu or Netflix Instead, the video is being sent over Comcast’s “managed network”. Comcast compares its use of a separate, additional bandwidth flow into the home to other IP-based cable service providers (e.g., Verizon Fios) and notes that the service is regulated under the cable laws. Without naming Berg, Comcast disputes that any evidence proves prioritization, but rather simply shows the consequence of the marking that differentiates Comcast video from other Internet content. Comcast states it is committed to following the Open Internet rules and that the Xbox 360 video-streaming service complies with those rules. It bears mention, however, that Comcast announced on May 17 that it was suspending the current 250 GB data cap while it evaluates alternatives such as a base 300 GB data cap and an extra 50 GB at $10 a month. On a call with reporters, Comcast stated that the change in the data cap has nothing to do with the Xbox 360 controversy and had been in the works for at least six months.

• Berg’s findings are available here. Comcast’s blog post about the Xbox 360 video streaming is available here. Comcast’s blog post about data caps 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 14, 2012, the United States Court of Appeals for the Fourth Circuit affirmed the FCC’s holding that Time Warner Cable had legitimate and non-discriminatory reasons to carry Mid-Atlantic Sports Network (MASN) programming on an analog tier in its North Carolina cable system, and thus did not violate the 1992 Cable Act or the FCC’s 2006 merger conditions for the Time Warner/Comcast purchase of Adelphia. MASN owns the rights to Baltimore Orioles and Washington Nationals games. It requested carriage with Time Warner, which is an affiliate of Turner South that holds distribution rights to various Atlanta sports teams including the Atlanta Braves. The parties’ negotiations broke down when Time Warner offered to carry MASN content only on its digital sports tier, to which less than half of Time Warner’s customers subscribed, or on an analog tier, to which only customers in eastern North Carolina have access. An arbitrator and the FCC’s Media Bureau both held that Time Warner’s offer was unlawfully discriminatory, but the full FCC reversed, crediting Time Warner’s assertion that the costs of carrying the content outweighed any expected benefit. The appeals court rejected MASN’s challenge of the decision, holding that MASN “failed to show that, even assuming that it made a prima facie discrimination case, Time Warner did not effectively rebut that case with evidence supporting legitimate, non-discriminatory business reasons for its denial of statewide analog tier carriage, or that the analytical framework applied by the FCC to its decision in this regard was erroneous.” TCR Sports Broad. Holding, LLP v. FCC, No. 11-1151 (4th Cir.).

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

Legislative Outlook

• As reported last week, the House Telecom Subcommittee held a hearing titled “Broadband Loans and Grants” on May 16, 2012. It was the third such hearing this term. In his opening remarks, Subcommittee Chair Greg Walden, R-Ore., noted that “It’s now been three years since the Recovery Act created BTOP and BIP, and more than 18 months since the last broadband loans and grants were awarded under those programs. ... While all the money has been awarded, only about one-third has been spent.” For a further summary of the hearing, click here.

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

Upcoming Events

• The Federal Communications Bar Association will hold a luncheon for FCC Chairman Genachowski on June 5, 2012, at the Grand Hyatt, 1000 H Street NW, Washington, DC. Check-in begins at 11:30 am Eastern, and the luncheon begins at 12:00 pm. 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.