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 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

• CTIA, an association representing the nation’s largest wireless carriers, has filed comments in support of the petition for declaratory ruling of SoundBite Communications, Inc. at the FCC. See April 23 edition of This Week in Telecom. The petition asks the FCC to declare text messages confirming a consumer’s opt-out do not violate the Telephone Consumer Protection Act (TCPA). CTIA argued that the messages are not governed by the TCPA because the messages are not “autodialed” — they are sent only to the specific subscriber that has made the request. Other commenters argued that, in light of a number of pending class action cases challenging the practice, the Commission should provide that any declaratory ruling would have only prospective affect. CTIA’s comments are available here. Reply comments are due May 15, 2012.
• Verizon Wireless has announced that it plans to deploy a text-to-911 service by early 2013. The commitment was made in response to a challenge from FCC Chairman Genachowski for the wireless industry to expedite deployment of Next Generation 911 services. Verizon Wireless stated that it has contracted with TeleCommunication Systems, Inc. to deploy the technology.
• 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 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 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 2, 2012, the Arkansas Public Service Commission (APSC) dismissed a complaint initiated by CTIA, Sprint Spectrum, Verizon Wireless, and T-Mobile USA against Global Tel*Link Corp. after the parties indicated that they had settled their dispute. CTIA and the wireless carriers filed their complaint against Global on October 7, 2011, alleging that Global’s proposed tariff amendments discriminated against wireless providers and wireless subscribers by seeking to impose a 4% “Wireless Termination Surcharge” on inmate calls to wireless telephones. In its proposed tariff amendment, Global justified this surcharge as a means to “offset the prevalence of wireless device arbitrage and adjust for loss of LATA-rating assurance.” The wireless providers asserted that this surcharge granted Global “an unlimited right to determine when, and to what extent, the surcharge applies” such that no wireless provider could know in advance whether Global would in fact apply the surcharge. The wireless providers also argued that the surcharge unreasonably discriminated against Arkansas residents that only subscribed to a wireless service and subjected wireless providers to an unreasonable disadvantage compared to wireline providers. On November 15, 2011, Global withdrew its proposed Wireless Termination Surcharge provision, and replaced it with a “Validation Surcharge” that applies to the base rate of all calls, and not only calls to wireless telephones. Docket No. 11-148-C.

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 CPUC 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 April 30, 2012, the shareholder vote on applying net neutrality principles to AT&T’s wireless networks was unsuccessful in achieving immediate application, but significant enough to ensure that it will be on next year’s ballot. The vote garnered 5.9% of the vote according to Open MIC. More details are available here.
• On April 27, 2012, the FCC adopted new rules on TV channel sharing, in anticipation of a future incentive auction, to address the nation’s growing demand for wireless broadband. The rules allow multiple broadcast stations to stream individual programming while sharing a single channel. “The new rules promote innovation and investment in mobile communications, and help ensure the United States keeps pace with the global wireless revolution. The rules also help preserve broadcast television as a healthy, viable medium.” A news release on the rules is available here. The new rules are 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 2, 2012, T-Mobile Puerto Rico persuaded the U.S. Court of Appeals for the First Circuit to reinstate a Puerto Rico Telecommunications Regulatory Board order finding that T-Mobile’s exchange of certain traffic with the incumbent Puerto Rico Telephone Company (PRTC) was governed by the parties’ interconnection agreement (ICA) rather than PRTC’s local tariff. The price difference was approximately $2 million. Despite charging T-Mobile at the ICA rate for several years, PRTC began charging at its local tariffed rate when it realized that T-Mobile was not meeting the 10% interstate threshold that would entitle it to ICA prices. The appeals court rejected the district court’s holding that giving T-Mobile the ICA rate would be discriminatory, reasoning that “had another carrier sought to connect on the same terms as provided under the ICA at issue here, such connection and terms would have been generally available.” The court of appeals also rejected the 10% interstate argument, concluding that “Federal law does not prevent the parties to an ICA from agreeing to provide a service with reference to the rate provided in the federal tariff where the special access service is intrastate in nature.” The court remanded the case to the district court to enter judgment in T-Mobile’s favor. Puerto Rico Tel. Co., Inc. v. T-Mobile Puerto Rico LLC, No. 11-1504 (1st Cir. May 2, 2012).

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

Legislative Outlook

• On May 2, 2012, Sen. John “Jay” Rockefeller IV, D-W.Va., Chair of the Senate Commerce Committee, wrote a letter to Lord Justice Brian Leveson, who is leading a special judicial investigation into the News Corp phone hacking scandal. The Senator states that he “would like to know” if Lord Leveson finds evidence of intercepting messages from U.S. citizens or that originated in the U.S., or evidence that New Corp officials were aware of the hacking and bribery activity. The letter provides no deadline. To read the full letter, click here.
• The full Senate Judiciary Committee will hold a hearing titled “Oversight of the Office of the Intellectual Property Enforcement Coordinator” on May 9, 2012, at 10:00 am in 226 Dirksen Senate Office Building. Victoria Espinel, Intellectual Property Enforcement Coordinator, will testify. To read more, 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.