Arent Fox's This Week in Telecom - October 17, 2011
October 17, 2011
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 Intercarrier Compensation l Compliance Notes l Broadband News l In the Courts l Legislative Outlook l Events
Federal Communications Commission (FCC) Announcements
- The Tentative Agenda for the next FCC Open Meeting has been released. It contains three items: the long-awaited Report and Order on Universal Service and Intercarrier Compensation Reform; an Order on Reconsideration regarding public broadcasting obligations for TV; and an update on preparations for the national Emergency Alert System to be held November 9, 2011. The Open Meeting is still scheduled for October 27, 2011, at 10:30 am Eastern. To view the Tentative Agenda, click here.
- The FCC Notice of Proposed Rulemaking on Next-Generation 911 (NG911) service has been published in the Federal Register. Comments 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 October 9, 2011, Jerry Brown, Governor of California (D), vetoed SB 914, a bill that would have required law enforcement officers to obtain a warrant prior to searching the contents of an arrestee’s mobile device. The legislation, which was sponsored by the ACLU, was approved in the California Legislature with unanimous support in the Assembly and a vote of 32-4 in the Senate. It was proposed in response to a California Supreme Court decision holding that warrantless searches of mobile phones was lawful, and that the information obtained could be used for prosecutions without regard to whether it was relevant to the initial arrest. To read the full text of SB 914, click here. Gov. Brown’s statement about his veto is available here.
- The Department of Commerce last week took steps to block Huawei Technologies Co., a Chinese wireless equipment manufacturer, from participating in the development of a wireless public safety network in the United States. This new network is meant to bring the wireless devices of firefighters, police officers, ambulance drivers, and other emergency personnel onto the same frequency so they can communicate during a disaster. Huawei has been a topic of discussion in the past based on its purportedly close ties to the Chinese government and on concerns that Huawei’s equipment could be used to steal intellectual property or as a means through which to launch a cyber attack. Earlier this year, the company backed out of a deal to buy portions of a technology startup after government officials withheld consent based on national security concerns.
- Reply Comments on the FCC Further Notice of Proposed Rulemaking regarding the use of microwave links for wireless backhaul are due October 25, 2011. For more information, click here. To view the NPRM, click here.
- Comments on the draft Mobile Medical Applications guidelines from the U.S. Food and Drug Administration (FDA) are due October 19, 2011. The draft guidelines are available here. Filing instructions are provided in the document.
Please contact Ross Buntrock, Michael Hazzard, or G. David Carter (contact information below) for further information.
Federal Trade Commission (FTC) and Privacy Regulation
- On October 11, 2011, the FTC announced its settlement with Frostwire LLC, a peer-to-peer file-sharing application developer, on charges that its “software likely would cause consumers to unwittingly expose sensitive personal files stored on their mobile devices, and that it misled consumers about which downloaded files from their desktop and laptop computers would be shared with a file-sharing network.” Frostwire can no longer use default settings that share files, must fix older versions of the software to prevent the default sharing, and must cease misrepresentations about what is shared. More information is available here.
- The FTC seeks comment on proposed changes to its Children’s Online Privacy Protection Rule promulgated under the Children’s Online Privacy Protection Act (COPPA). The proposed changes include updating the definition of “personal information” to include geolocation information and other types of persistent identifiers, such as tracking cookies used for behavioral advertising. The FTC also proposes adding new methods for obtaining verifiable parental consent, including electronic scans of signed parental consent forms and video-conferencing, and eliminating “e-mail plus” verification of parent consent which is considered less reliable. The FTC also proposes to strengthen oversight of self-regulatory “safe harbor programs” by implementing reporting and auditing requirements. Comments 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 October 12, 2011, the Iowa Utilities Board (IUB) denied separate motions to dismiss the complaint of Aventure Communication Technology LLC against Qwest Corp., Qwest Communications Co., LLC and PAETEC Communications, Inc. Aventure alleged in its complaint that the carriers are sending “phantom traffic” to Aventure’s network in a “fraudulent scheme to avoid paying terminating access charges on intrastate and interstate long distance traffic terminated by Aventure at its central office in rural Salix, Iowa.” Aventure specifically asserts that the Qwest local entity, in coordination with the Qwest interexchange entity and PAETEC, is intentionally manipulating the signaling information of interexchange traffic to make it appear as if it is local traffic and then routing it over Aventure’s facilities dedicated for local traffic.
In its motion to dismiss, Qwest argued that Aventure failed to allege any facts showing that Qwest breached a duty to Aventure or engaged in any conduct contrary to Iowa law. PAETEC noted that Aventure’s complaint “may be moot before it is finished,” as the IUB has a pending docket to consider whether to revoke Aventure’s certificate of public convenience and necessity. PAETEC thus argued that the complaint should be dismissed until the IUB resolves Aventure’s revocation proceeding. In denying the carriers’ motions to dismiss, the IUB ruled that Aventure did in fact state a claim that could entitle it to relief. “Aventure claims that such misrouting has had an adverse effect on Aventure’s local service, asserting that the ‘jamming of Aventure’s local trunks is degrading Aventure’s service to its customers.’ If proven, that claim may justify some relief for Aventure that is within the Board’s jurisdiction, since it involves local exchange service.” Docket FCU-2011-0014.
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
- UPDATE TO OCTOBER 10 EDITION: The FCC has announced that its new rule requiring Competitive Local Exchange Carriers (CLECs) to file their switched access tariffs and any supporting materials electronically will go into effect November 17, 2011. We previously reported that it would not be effective until February 3, 2012. A copy of the Report and Order establishing the rule can be found here. FCC-11-92, WC Docket No. 10-141. Until now, only incumbent carriers were required to file their tariffs and supporting documents electronically.
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
- On October 11, 2011, the FCC released data on the number of Internet access connections in the US providing over 200 kilobits per second (kbps) in at least one direction as of December 31, 2010, as collected by FCC Form 477. The report found that Internet connections are growing, and that mobile Internet access is growing particularly fast, up 64% for the year. The report also finds that the speed of connections is increasing as well. The report may be found here.
- On October 12, 2011, FCC Chairman Genachowski announced a public-private broadband initiative to increase broadband adoption. The FCC will “launch a proceeding to explore how the E-Rate program can expand access to digital literacy training at more public libraries and schools across the country and, ultimately, forming a Digital Literacy Corps.” The Digital Literacy Corps. was a recommendation in the National Broadband Plan. Chairman Genachowski also announced the creation of “Connect to Compete”, a nonprofit initiative for digital literacy. Connect to Compete will be funded initially by the Knight Foundation and will be housed at One Economy and led by its CEO, Kelley Dunn. Finally, Chairman Genachowski praised the efforts of several private companies, such as Best Buy and Microsoft, that have worked to increase digital literacy and adoption. Chairman Genachowski’s speech is available here. A fact sheet released by the FCC 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 October 12, 2011, the Bankruptcy Court for the Southern District of New York brought TerreStar Network’s Chapter 11 bankruptcy proceeding one step closer to conclusion by approving the debtor’s $98 million settlement with two separate creditor groups over a certain purchase money credit agreement. TerreStar, in seeking approval of the settlement agreement, argued that it was “another important step toward reserving unsecured creditors’ recovering and concluding these Chapter 11 cases.” The court’s approval of the settlement follows its approval in July of DISH Network’s purchase of TerreStar for $1.4 billion. In re TerreStar Networks Inc., No. 10-15446 (S.D.N.Y. Br.).
- Also on October 12, AT&T and the Department of Justice both opposed Google’s efforts to secure confidentiality protections beyond those already available to subpoenaed third parties under the protective order entered in suit to block AT&T’s acquisition of T-Mobile. Google wants additional notice if its documents are going to be disclosed to one of the party’s experts, or if they will be used at a pretrial hearing or at trial. Justice argued that the existing protective order “already affords a high degree of protection for confidential information,” and represented to the Court that it has assured Google it will attempt to give the additional notice whenever possible. AT&T stated that giving Google this notice would “unfairly and unreasonably restrict” AT&T’s ability to introduce Google’s confidential information “on cross-examination in order to impeach unexpected witness testimony.” United States v. AT&T Inc., No. 11-cv-01560 (D.D.C.).
Please contact Ross Buntrock, Jon Canis, Michael Hazzard, Stephanie Joyce, or Joseph Bowser (contact information below) for further information.
Legislative Outlook
- The full Senate Commerce Committee held a hearing titled “Universal Service Reform – Bringing Broadband to All Americans” on October 12, 2011. Witnesses included Michael Powell, former Chairman of the FCC, who now serves as President and CEO of the National Cable and Telecommunications Association. In his opening remarks, Sen. John “Jay” Rockefeller IV, D-W.Va., Chair of the Committee, stated that “For too long, our universal service system has focused on the communications challenges of the last century. We need to refocus it on the challenges of our modern age.” To view the hearing webcast and read written testimony, click here. To read Chairman Rockefeller’s full statement, click here.
Please contact Stephanie Joyce (contact information below) for further information.
Upcoming Events
- The Mobile Internet Content Coalition (MICC), founded with the assistance of Michael Hazzard and other attorneys in our Group, will hold its first conference, the Mobilizing Mobile Summit, on November 15, 2011, at Georgetown University. MICC advocates free and fair development of mobile technologies, applications, and services. For more information about the event or to register, click here.
- 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, including:
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Ross A. Buntrock |
Michael B. Hazzard |
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Jonathan E. Canis |
Stephanie A. Joyce |
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Alan G. Fishel |
Jeffrey E. Rummel |
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Adam D. Bowser |
Marcia Fuller Durkin |
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Joseph P. Bowser |
Jason A. Koslofsky |
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G. David Carter |
Katherine Barker Marshall |