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 Tentative Agenda for its next Open Meeting to be held November 30, 2012. It contains one item: a Fifth Order on Reconsideration and Sixth Report and Order on low-power radio licensing. To read the Tentative Agenda, click here.
• The following FCC Open Meeting will be December 12, 2012. We will publish the Tentative Agenda when it is released.

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

The Mobile Market

• On November 13, 2012, FCC Chairman Julius Genachowski signed a new agreement with Hector Olavarria Tapia, Mexico’s Under-Secretary for Communications, to combat the theft and cross-border trafficking of mobile devices between the U.S. and Mexico. This agreement follows ongoing cooperative efforts by the U.S. and Mexico, including work done by mobile services providers in both countries to create an international stolen device database. It requires, among other things, the FCC and Mexico’s Secretariat of Communications and Transport (SCT) collaboratively to crack down on international trafficking of stolen mobile devices. Their progress will be summarized in biannual reports that will be available to the public. To read more, click 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 15, 2012, the FCC and TDS Telecommunications Corporation (TDS Telecom) entered into a consent decree regarding TDS Telecom’s compliance with CPNI requirements under 47 U.S.C. Section 222(c)(1). In February 2011, TDS Telecom self-reported its failure to include opt-out notifications in materials provided to over 40 thousand residential customers. Then, in May 2011, it self-reported a second CPNI compliance problem regarding the failure of its interactive voice response system to properly maintain the opt-out requests of certain customers. The consent decree includes a voluntary contribution by TDS Telecom in the amount of $350,000 and a CPNI compliance plan to resolve the issues. To read the consent decree, click here.
• On November 14, 2012, the Senate approved a House bill to reauthorize the SAFE WEB Act. The SAFE WEB Act gives the FTC additional tools to combat cross-border fraud, spam, and spyware. For example, it allows the agency to share information with foreign law enforcement authorities and expands the type of fraud that the agency can take legal action against. The bill was first passed in 2006 and the reauthorized version is now headed to President Obama’s desk to be signed into law. According to the FTC, the number of consumer complaints against foreign businesses exceeded 100,000 in 2011 alone. The SAFE WEB Act has enabled the FTC to pursue some of the most egregious cases, including over 100 investigations involving foreign targets, evidence, or assets. More information is available here.
• Following up on its March 2012 “Protecting Consumer Privacy in an Era of Rapid Change” Report, the FTC has announced that it will host a workshop on December 6, 2012, “to explore the practices and privacy implications of comprehensive collection of data about consumers’ online activities.” The workshop will bring together consumer protection organizations, academics, business and industry representatives, and privacy professionals to discuss the issues raised by the collection and use of comprehensive data about consumers’ online activities by ISPs, browsers, search engines, and social media platforms. Interested parties may submit requests to participate as panelists and may recommend topics for inclusion on the agenda. The workshop is free and open to the public. More information is available here.
• As part of its effort to thwart robocalls, the FTC has announced that it is launching the “FTC Robocall Challenge” – a contest that will award a $50,000 cash prize for the best technical solution for blocking illegal robocalls. The FTC believes the challenge will allow it to “tap into the genius and technical expertise among the public” in order to develop a successful solution to the illegal robocall problem. The award will go to the person, team, or small company (with fewer than 10 employees) that develops the best robocall-blocking technology. Entries will be judged by the following criteria: (1) it must work; (2) be easy to use; and (3) be easy to implement and operate. The FTC Robocall Challenge is free and open to the public. Entries will be accepted until January 17, 2013. More information regarding the FTC Robocall Challenge 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

• Arent Fox, led by the Telecom Group, has been named a Strategic Affiliate of the 2012 mHealth Summit to take place December 3-5, 2012, at National Harbor near Washington, DC. The largest event of its kind, the 4th annual mHealth Summit brings together leaders in government, the private sector, industry, academia, providers and non-profit organizations from across the mHealth ecosystem to advance collaboration in the use of wireless technology to improve health outcomes in the United States and abroad.
  
  We are delighted to offer our subscribers a $50 discount off Full Access Registration to the Summit. To learn more about the event and register, click here. Enter code AF12 at the end of the registration process and receive $50 off your full access pass!
• The IEEE Power & Energy Society has announced its fourth Conference on Innovative Smart Grid Technologies (ISGT) to be held February 24-27, 2012, in Washington, DC. The ISGT Conference will provide a forum for participants to discuss state-of-the-art innovations in smart grid technologies. According to the announcement, it will feature “plenary sessions, panels, technical papers, and tutorials by international experts on smart grid applications.” Researchers and practitioners from around the world are also invited to submit papers for review and possible presentation at the ISGT Conference. More information about the ISGT Conference 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 November 6, 2012, the South Dakota Public Utilities Commission (SDPUC) voted to approve the stipulation of dismissal filed by Northern Valley Communications, LLC and Sprint Communications Company, L.P. after the parties settled their dispute concerning intrastate access charges for traffic terminating to conference calling companies. This case arose when South Dakota Network LLC (SDN), the centralized equal access provider in South Dakota, filed a complaint against Sprint in October 2009 seeking payment of access charges associated with delivering Sprint’s traffic to various South Dakota local exchange carriers (LECs). SDN alleged that Sprint was failing to pay charges for work indisputably provided by SDN in transporting Sprint’s traffic. Sprint then filed third-party complaints against several South Dakota LECs, alleging that the traffic was not compensable under the LECs’ intrastate switched access tariffs. On October 26, 2012, Sprint and Northern Valley filed a stipulation for dismissal of all claims lodged against each other, and dismissal was granted by the SDPUC. SDN’s complaint against Sprint remains pending. Docket No. TC09-098.

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

• The Wireline Competition Bureau has released a Public Notice providing guidance to schools that receive E-Rate funding on how to implement the Protecting Children in the 21st Century Act (the Act) (47 U.S.C. Sections 254(h)(5), 254(h)(6) and 254(l)). Under the Act, schools that receive E-Rate Funding are required to certify that their Internet safety policies include educating students about appropriate online behavior, including cyberbullying awareness and proper use of social networking websites. A copy of the Public Notice can be found here. (DA-12-1836).
• Due to the impact of Hurricane Sandy, the Universal Service Administrative Company (USAC) has extended the filing deadlines for FCC Form 486, the Receipt of Service Confirmation Form for the Schools and Libraries fund, for Funding Year 2011 recurring services invoice submissions until January 28, 2013. This is the same deadline for non-recurring services, which means all invoices for Funding Year 2011 now are due at the same time.
  
  In addition, USAC announced that the FCC Form 486 for Funding Year 2012 will also be due on January 28, 2013.
  
  More information regarding these filings can be found here.
• Eligible Telecommunications Carriers (ETCs) that provide Lifeline service are required to recertify the eligibility of their base customers as of June 1, 2012 by December 31, 2012. Each ETC is then required to report the results to the FCC, the Universal Service Administrative Company, and the applicable state regulatory commission or Tribal government. The recertification process can take place in one of two ways: either through review of databases to confirm eligibility, if there are databases available; or by obtaining a signed certification from the subscriber confirming eligibility to receive Lifeline service. Each ETC must report its results on FCC Form 555 by January 31, 2013.  FCC Form 555 has not yet been released. More information can be found in the Public Notice found here. (DA 12-1626).
• The Universal Service contribution factor for the fourth quarter of 2012 is 17.4%. A copy of the Public Notice announcing the rate can be found here. (DA 12-1484)

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

Broadband News

• Comments on the FCC Notice of Proposed Rulemaking in the Spectrum Holdings proceeding are due November 28, 2012, with Reply Comments due January 7, 2013. To read the NPRM, click here.

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

In the Courts

• On November 8, 2012, the U.S. District Court for the Northern District of California granted DirectTV’s motion to stay a putative class action pending arbitration. Plaintiffs allege that DirecTV violated California and federal law by “improperly maintain[ing] their personally identifiable information after Plaintiffs had terminated their service with DirecTV.” DirecTV maintains that the case must be sent for binding arbitration under their service contract. Plaintiffs argued, unsuccessfully, that the arbitration clause in the DirecTV service agreement does not apply to acts that occurred after termination of the contractual relationship. The court found it “well settled that courts must hold ‘arbitration agreements to a life and validity separate and apart from the agreement in which they are imbedded.’” The court likewise rejected the plaintiffs’ argument that the agreement was unconscionable and thus unenforceable, rejecting the notion that arbitration clauses must have “customer-friendly” terms such as those that the Supreme Court highlighted in upholding the AT&T Mobility arbitration clause in Concepcion: “The primary defect in Plaintiffs’ argument is that it is logically erroneous: the arbitration provision does not gain unconscionability by lacking consumer-friendly provisions.” The court granted the motion to compel arbitration, and denied plaintiffs’ request for preliminary discovery aimed at defeating the arbitration clause. Hodsdon v. DirecTV, LLC, No. C 12-02827 JSW (N.D. Cal.).

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

Legislative Outlook

• On November 14, 2012, S. 3414, the Cybersecurity Act of 2012 (summarized here) was prevented from going to a vote. Sen. John “Jay” Rockefeller IV, D-W.Va., Chair of the Senate Commerce Committee, then released a statement criticizing Senate Republicans for failing to support the bill, noting that “Every day we fail to act brings us closer to a catastrophic cyber attack.” To read the full press release, click here.
  
  Sen. Kay Bailey Hutchison, R-Tex., Ranking Member of the Senate Commerce Committee, spoke on the Senate floor on the cybersecurity issue, explaining that she believes the Senate should consider the competing bill introduced by Sen. John McCain, S. 3342, the Strengthening and Enhancing Cybersecurity by Using Research, Education, Information and Technology Act (“SECURE IT Act”). She stated that S. 3342 “offers the balanced approach that will significantly advance cybersecurity in both the public and private sectors.” To read Sen. Hutchison’s full statement, click here.

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

Upcoming Events

• The Federal Communications Bar Association (FCBA) will hold its annual Chairman’s Dinner on December 13, 2012, at the Washington Hilton, 1919 Connecticut Avenue, NW, in Washington, DC. A reception at 6:00 pm ET will be followed by dinner at 7:30 pm ET. To learn more or to purchase a ticket or a table, 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.