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 June 13, 2012, at 10:30 Eastern. It contains two items: a Report and Order modifying the rules for certifying radio equipment; and a Report and Order and Further Notice of Proposed Rulemaking on improving efficiency in the 4.9 GHz band. To read the Tentative Agenda, click here.

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

The Mobile Market

• Last week, the White House launched a new initiative titled “Digital Government: Building a 21st Century Platform to Better Serve the American People” which seeks to deliver government services on wireless devices. The plan requires federal agencies to make two key services available to consumers on their mobile devices within a year. “Americans deserve a government that works for them anytime, anywhere, and on any device,” President Obama said in a statement. “By making important services accessible from your phone and sharing government data with entrepreneurs, we are giving hard-working families and businesses tools that will help them succeed.” Among other things, the strategy requires the General Services Administration to establish a government-wide contract vehicle for wireless plans and devices. It also mandates that security and privacy policies be evaluated and streamlined. The full strategy document is available here.
• Reply Comments to the FCC on the impact of a public safety network on Commercial Mobile Radio Service are due tomorrow, 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

• The new European Union (EU) “ePrivacy Directive” (Directive 2009/136/EC) took effect on May 26, 2012. Under the new directive, marketers and website owners operating in any EU country are required to obtain affirmative user consent, otherwise known as “opt-in”, before using web cookies or other technologies to harvest user data. Though technically implemented a year ago, the EU agreed to forego enforcement of the directive for a year in the face of industry-led complaints about its potential negative effects. Directive 2009/136/EC 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.

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

Developments in Intercarrier Compensation

• On May 24, 2012, the California Public Utilities Commission (CPUC) dismissed with prejudice a complaint brought by AT&T California, Inc. against Fones4All Corp. in 2006. AT&T sought to recover alleged overcharges paid to Fones4All for termination of intraLATA toll traffic. Following an evidentiary hearing, the CPUC issued D.07-07-013, granting the relief AT&T requested in its complaint, or approximately $2.6 million, plus interest. After nearly two years, AT&T filed a motion with the CPUC stating that Fones4All failed to pay the judgment and that at least one Fones4All officer was improperly diverting assets for his personal use and to avoid paying AT&T. In 2008, however, the CPUC stayed the proceeding after Fones4All declared bankruptcy. AT&T is now pursuing a claim to pierce Fones4All’s corporate veil in the bankruptcy proceeding, and argued to the CPUC that administrative efficiency would be served by dismissing AT&T’s claims against Fones4All to allow AT&T to proceed in the bankruptcy case. Docket No. 06-03-013.

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 maintain switched access tariffs on file with the New York Public Service Commission (NY PSC) are required to update their tariffs in compliance with the FCC Connect America Order (FCC 11-161) by June 15, 2012. The NY PSC appended the rates Frontier and Verizon to the order to assist competitive local exchange carriers (CLECs) with their filings. A copy of the order may be found here. Case No. 12-C-0012.

• 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 today, 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

• Last week it was reported that L2Networks Corp., a small Georgia telecommunications company, filed the first formal Open Internet complaint at the FCC. As of late last week, the FCC had not seen the purported filing. L2Networks issued a statement on May 22, 2012, that it had made a filing with the FCC “challenging the legality of alleged actions taken by Mr. Ronald Skates, Director of Telecommunications of The Albany Water Gas & Light Commission, a regional utility and fiber-optic based Competitive Local Exchange Carrier (CLEC) regulated within the state of Georgia.” According to that release, “Albany Water, Gas & Light Commission filed a criminal complaint against L2Networks alleging theft-of-service in Dougherty County, Georgia” for failing to pay charges for termination of Voice over IP (VoIP) services over Albany’s facilities. L2Networks argues that the complaint implicates the Open Internet rules, because it creates an anticompetitive environment. Reporters have been unable to reach L2Networks to discuss its filing. The press release is available here.
• On May 22, 2012, during remarks at the Cable Show in Boston, FCC Chairman Genachowski expressed support for pricing experimentation, including usage-based pricing “completely appropriate”. The Open Internet Order, he stated, permits usage-based pricing by broadband providers. These comments drew criticism from Free Press and Public Knowledge, who argue that data caps are bad for consumers and make no sense for wired broadband. Public Knowledge also called on the FCC to investigate data caps, noting many unanswered questions about how such limits were set and what counted towards the caps.
  
  The Free Press statement is available here.
  
  The Public Knowledge statement is available here.
• On May 23, 2012, the Phoenix Center for Advanced Legal & Economic Public Policy Studies released a report titled “A Most Egregious Act? The Impact on Consumers of Usage-Based Pricing” defending usage-based pricing and the practice of providers exempting their own video programming from data caps. The report “show that that charging a positive price to account for the substitution of over-the-top video services for the broadband provider’s own video services can make consumers and society better off. Consequently, regulations that prohibit such actions can make consumers and society worse off.” It 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 21, 2012, the FCC submitted its reply brief in support of its request for Supreme Court review of the Third Circuit’s most recent order vacating, again, the $550,000 fine against CBS for Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl. The Third Circuit agreed with CBS that the fine was unlawful, because it rested on a standard for fleeting indecency that the agency had never articulated before the incident. In its reply brief, the FCC asserts that its argument is not, contrary to CBS’s characterization, “revisionist history.” The FCC also urges the Supreme Court to hold its petition in abeyance pending the Court’s decision in FCC v. Fox Television Stations, where Fox also raised a fair-notice challenge to a fine for Fox’s broadcast of brief nudity. CBS, for its part, argues that Fox is irrelevant to its case, because its challenge rests on the Administrative Procedure Act, while Fox’s appeal invokes the First and Fifth Amendments. The FCC argues, however, that “the proper disposition of both cases may turn in part on whether FCC precedent provided adequate notice that the broadcast of brief nudity could be considered indecent.” FCC v. CBS, No. 11-1240.

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

Legislative Outlook

• On May 24, 2012, Senator Herb Kohl, D-Wis., Chair of the Senate Antitrust Subcommittee, sent an eight-page letter to FCC Chairman Julius Genachowski and Attorney General Eric Holder expressing “serious concerns” about the competitive effects of the spectrum sale and joint marketing agreements that Verizon Wireless is crafting with SpectrumCo LLC and Cox Communications. He reminds the FCC that spectrum “consists of public airwaves to be deployed in the public interest.” (Emphasis in original.) He also cautions that the joint marketing agreements may represent a “truce” between the largest players in the wireline and cable industries that to this point have been “fierce competitors”. He urges both agencies “to carefully scrutinize” the transactions. The letter is available here.
• The House Communications Subcommittee will hold a hearing titled “International Proposals to Regulate the Internet” on May 31, 2012, at 10:15 am Eastern in 2322 Rayburn House Office Building. Scheduled witnesses include FCC Commissioner Robert McDowell and Ms. Sally Shipman Wentworth of the Internet Society. For more information, 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 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.