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 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 the next Open Meeting to be held November 30, 2011, at 10:30 am Eastern. It contains two items: a Report and Order allocating spectrum for interactive medical devices; and a presentation on the Commission’s recent initiatives to increase broadband adoption. To view the Tentative Agenda, click here.
• The FCC has issued a five-page Fact Sheet on corporate “Connect to Compete” initiatives aimed at increasing broadband adoption. They include offers from several cable companies to provide broadband Internet access for only $9.95 per month, and the provision of new or reburbished computers for low-income families by Redemtech and Microsoft. To read the Fact Sheet, click here. To read the remarks of Chairman Julius Genachowski on “Connect to Compete”, click here.
• Comments on the FCC Notice of Proposed Rulemaking on Next-Generation 911 (NG911) service are due December 12, 2011, and Reply Comments are due January 10, 2012. To view the Federal Register notice, click here. To read the NPRM, click here.

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

The Mobile Market

• On November 8, 2011, the United States Supreme Court heard argument in U.S. v. Jones, in which the Department of Justice (DOJ) is defending law enforcement’s use of Global Positioning System (GPS) devices to track a car against a Fourth Amendment challenge. In its argument, DOJ asserted that although one has privacy “in the enclave of his own home or in a private letter or inside of his vehicle,” that right does not apply to “movements in a car on a public roadway.” The attorney for Jones focused on the fact that the GPS device had been implanted in the car without a warrant. The transcript of the argument is available here. No. 10-1259
• Responses to the FCC Wireless Telecommunications Bureau call for comments on the state of competition in the mobile wireless industry are due December 5, 2011, and Reply Comments are due December 20, 2011. The full public 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 November 8, 2011, the FTC announced its settlement with the operator of Skid-e-kids, LLC, a social networking site that advertises itself as the “Facebook and Myspace for Kids,” on charges that it violated the Children’s Online Privacy Protection Act (COPPA) Rules. The FTC alleged that the operator had made deceptive claims in its privacy policy and had collected personally identifiable information (PII) from approximately 5,600 children without obtaining prior parental consent. Pursuant to the settlement order, the operator is barred from collecting children’s PII in the future and is required to destroy all PII already collected. In addition, the operator must either retain an online privacy professional or adopt the FTC-approved safe harbor program to oversee any COPPA-covered website it may run. More information is available here.
• On November 7, 2011, European Union Justice Commissioner Viviane Reding stated that she intends to insert language into the EU’s data privacy law that would subject non-EU companies to the EU’s stricter data collection standards. Commissioner Reding stated that “companies who direct their services to European consumers should be subject to EU data protection laws. Otherwise, they should not be able to do business on our internal market. This also applies to social networks with users in the EU. We have to make sure that they comply with EU law and that EU law is enforced, even if it is based in a third country and even if its data are stored in a ‘cloud.’” Mrs. Reding’s statement can be found here.
• Comments on proposed changes to the FTC Children’s Online Privacy Protection Rule are due November 28, 2011. The FTC press release about the proceeding is available here. The text of the Federal Register notice is available here.

Please contact Ross Buntrock, Alan Fishel, Stephanie Joyce, or Jason Koslosfky (contact information below) for further information.

Developments in Intercarrier Compensation

• On November 10, 2011, the Iowa Office of Consumer Advocate (OCA) filed a reply in support of its motion to reject the proposed tariff amendment of OmniTel Communications, Inc. with the Iowa Utilities Board (IUB). OCA argues that the tariff is inconsistent with the IUB’s High Volume Access Services (HVAS) rules adopted in 2009. The IUB agreed, in part, and suspended the tariff for further investigation on September 28. In its reply brief, OCA asserts that “What OmniTel seeks here is the Board’s official sanction of a tariff provision that sets forth future contract terms that would divest the Board of its lawful jurisdiction until 2014, nullify both existing and future Board and FCC rulings until 2014, and conflict with the lawfully adopted HVAS rules requiring good faith negotiations.” Docket No. TF-2011-0095.

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

• Each competitive local exchange carrier (CLEC) that has an intrastate switched access tariff on file with the Illinois Commerce Commission (ICC) is required to reduce its intrastate switched access rates by an amount equal to 50% of the difference between its current intrastate switched access rates and interstate switched access rates. Those CLECs must file updated tariff pages reflecting the reduction by January 1, 2012. This is the second part in a step-down process mandated by a recent Illinois statute, and is intended to result in interstate and intrastate switched access rates mirroring each other by July 1, 2012. A notice from the ICC regarding this process may be found here. 220 ILCS 5/13-900.2.
• The FCC rule requiring CLECs to file their switched access tariffs and any supporting materials electronically will go into effect November 17, 2011. A copy of the Report and Order establishing the rule can be found here. FCC-11-92, WC Docket No. 10-141.
  
  CLECs must use the Electronic Tariff Filing System (ETFS) to file their initial base tariffs between November 17, 2011 and January 17, 2012. All subsequent tariff filings must likewise be made via ETFS. A copy of the FCC announcement can be found here. DA-11-1706, WC Docket No. 10-141.
• The Universal Service contribution factor for the Fourth Quarter of 2011 is 15.3%. A copy of the notice can be found here.

Please contact Ross Buntrock, Jon Canis, Michael Hazzard, or Katherine Barker Marshall (contact information below) for further information regarding compliance matters.

Broadband News

• An update on the Open Internet Order appeal: Richard Levie, the Special Master overseeing discovery, ordered Sprint last week to produce several internal documents that AT&T has requested in discovery. They include documents relating to whether Sprint plans to seek a merger with T-Mobile if AT&T’s deal is ultimately blocked. Sprint has estimated that responsive documents number approximately 440,000 pages. Meanwhile, in filings with the Securities and Exchange Commission, AT&T has moved the anticipated closing date for the merger from March 2012 to an unspecified date “in the first half” of the year. Verizon Wireless v. FCC, Case No. 11-1355 and consolidated cases (D.D.C.).
• On November 10, 2011, the Senate defeated S.J. Res. 6, the Resolution of Disapproval of the Open Internet Order, in a 52-46 vote along party lines. The Resolution is available here. The record on the vote 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 November 9, 2011, the United States Court of Appeals for the Second Circuit denied Cablevision’s emergency request for a stay of the FCC Media Bureau’s decision that Cablevision may not block Verizon and AT&T from accessing high-definition content currently only available on Cablevision’s channels, including its MSG channel that broadcasts New York Rangers and Knicks games. The full FCC denied Cablevision’s Application for Review of the decision on November 10. Cablevision Systems Corp. v. FCC, No. 11-04104 (2d Cir.).
• On November 7, 2011, the United States Supreme Court refused to hear Sprint’s appeal of the ruling by a California court of appeals that Sprint’s early termination fees (ETFs) constitute an unlawful liquidated damages penalty. Sprint’s appeal was premised on the argument that the Communications Act preempts state law decisions, like this one, that would have the effect of regulating a wireless carrier’s “rates”. The California court found no preemption, because the ETFs are not “rates”, but rather they are an impediment to customers switching to competing carriers. Other courts, however, have held that such claims are preempted, and Sprint sought Supreme Court review to reconcile this perceived conflict in the courts. The question is also pending at the FCC, which has yet to decide the issue. Sprint Spectrum LP v. Ayyad, No. 11-340.

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

Legislative Outlook

• The House Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing titled “Cyber Security: Protecting America's New Frontier” tomorrow, November 15, 2011, at 10:00 am Eastern in 2141 Rayburn House Office Building. For more information, click here.
• The House Judiciary Committee has confirmed that it will hold a hearing on HR 3261, the Stop Online Piracy Act, on November 16, 2011, at 10:00 am Eastern in 2141 Rayburn House Office Building. For more information, click here.
• On November 16, 2011, the House Commerce Committee will hold markups on two FCC-related bills: HR 3309, the “Federal Communications Commission Process Reform Act of 2011”; and HR 3310, the “Federal Communications Commission Consolidated Reporting Act of 2011.” A background memo and links to the text of the bills can be found here.
• On November 18, 2011, the House Subcommittee on Commerce, Manufacturing, and Trade will hold a hearing titled “Internet Gaming: Regulating in an Online World” at 9:00 am Eastern 2123 Rayburn House Office Building.

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

Upcoming Events

• Jeffrey Rummel, a Partner in our Group, will deliver a presentation titled “FCC Licensing/Regulation of the Manufacture, Development & Testing of Military Communications Systems” at the Military Wireless Conference to be held November 15-17, 2011, in Las Vegas. For more information or to register, click here.

Please contact Ross Buntrock, Jonathan Canis, Stephanie Joyce, or Jeffrey Rummel (contact information below) for further information.

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