Arent Fox's This Week in Telecom - October 24, 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 Final Agenda for the next FCC Open Meeting has been released. It contains the same three items previously noticed: 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 Final 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
- Last week, FCC Chairman Genachowski and Steve Largent, President and CEO of CTIA, announced a voluntary plan to resolve “bill shock” concerns. The measures are seen as a way to avoid the litigation that would likely result from adoption of new regulations. The agreement states that wireless service providers will send texts to users, free of charge, alerting them when they approach their plan limit on voice, text, or data usage and when they will begin incurring international roaming charges. By October 17, 2012, participating carriers will provide customers with at least two out of the four notifications, and they will have all the alerts in place by April 17, 2013. The service providers also will inform consumers about tools they can use to monitor their usage. These new “Wireless Consumer Usage Notification Guidelines” will become part of the broader CTIA “Consumer Code for Wireless Service.”
Chairman Genachowski summarized the agreement in a speech given October 17, 2011, at an event hosted by the Brookings Institution. The text of the Chairman’s speech is available here. - Reply Comments on the FCC Further Notice of Proposed Rulemaking regarding the use of microwave links for wireless backhaul are due tomorrow, October 25, 2011. For more information, click here. To view the NPRM, 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 October 14, 2011, the FTC, U.S. Department of Justice, and the European Commission announced an updated set of “best practices” that they use to coordinate their merger reviews and celebrated the 20th anniversary of the United States-European Union bilateral antitrust agreement. The revised U.S.-E.U. best practices “[p]rovide more guidance to firms about how to work with the agencies to coordinate and facilitate the reviews of their proposed transactions; [r]ecognize that transactions that authorities in the U.S. and Europe review may also be subject to antitrust review in other countries; and [p]lace greater emphasis on coordination among the agencies at key stages of their investigations, including the final stage in which agencies consider potential remedies to preserve competition.” 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 20, 2011, the Missouri Public Service Commission (MPSC) closed a tariff investigation proceeding initiated by AT&T Communications of the Southwest, Inc. and Southwestern Bell Telephone Company d/b/a AT&T Missouri against Hypercube Telecom, LLC. On September 29, AT&T had filed a motion to suspend and investigate Hypercube’s proposed intrastate switched access tariff. AT&T asserted that Hypercube’s proposed “end user” definition “improperly expands the term in such a way that could potentially permit Hypercube to impose end office switched access or carrier common line rates when those services are not provided.” AT&T also objected to Hypercube’s proposed definition of “constructive order”, arguing that it would allow Hypercube to charge for services not requested by other carriers. On October 17, however, AT&T informed the MPSC that the parties were able to resolve their dispute after Hypercube revised its proposed “end user” definition. AT&T stated that “since Hypercube’s service at this point is limited to providing tandem switching, AT&T does not presently have a concern with the constructive ordering language.” Docket No. TA-2012-0048.
- Also on October 20, the MPSC announced that it is opening an investigation into rural call completion in response to the petition of several rural local exchange carriers (LECs), including Chariton Valley Telephone Corporation, Choctaw Telephone Company, and Mid-Missouri Telephone Company. The LECs asserted that they have received an increasing number of complaints over the last eight to twelve months that long-distance calls are failing to complete. They complained of calls that fail to ring for the calling party, of pre-recorded messages stating the call could not be routed, and of low-quality service such as calls in which one party cannot hear the other. In its order opening the investigation, the Commission scheduled a workshop for November 7, 2011, and directed Staff to file an initial report of its findings by January 6, 2012. Docket No. TO-2012-0104.
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
- FCC Form 499-Q is due November 1, 2011 for all filers that are not considered to be de minimis for Universal Service filing purposes. This filing encompasses historical revenues from the third quarter of 2011 and projected revenues for the first quarter of 2012. A copy of the current FCC Form 499-Q can be found here or here.
- Voice over Internet Protocol (VoIP) providers and Commercial Mobile Radio Service (CMRS) providers who rely on traffic studies to report interstate revenues on FCC Form 499-Q must submit these studies by November 1, 2011, to the Universal Service Administrative Company (USAC) and to the Chief of the Industry Analysis and Technology Division of the FCC.
- The FCC 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. 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
- On October 17, 2011, the National Telecommunications and Information Administration (NTIA) submitted a Second Interim Progress Report pursuant to the Presidential Memorandum issued on June 28, 2010, directing the Department of Commerce (DOC) and FCC to identify and make available 500 megahertz of spectrum over the next ten years for wireless broadband. The Second Interim Progress report summarizes NTIA’s activities from April 1, 2011, the date of the First Interim Progress report, through September 30, 2011. The “key activity” during this period has been the evaluation of the 1755-1850 MHz spectrum band, and the agencies promised to summarize the results of the evaluation soon. The report 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 18, 2011, the U.S. Court of Appeals for the Tenth Circuit dismissed the appeal of Sorensen Communications from the FCC’s reduced compensation rates for Video Relay Service (VRS) providers. VRS providers enable people with hearing disabilities to communicate with a hearing person by means of a video link and a communications assistant. Sorensen challenged the FCC-set rates on the ground that they would prevent providers from meeting the “functional equivalent” standard and FCC speed-of-answering requirements. The court of appeals rejected the challenge as factually insufficient: “Even under Sorensen’s doomsday scenario, is increased wait times fall well below the 120-second threshold set by the FCC for functional equivalence.” The court likewise rejected Sorensen’s arguments that the lower rates would necessarily cause Sorensen and others to miss the FCC’s availability and efficiency standards. Finally, the court rejected the argument that the rates are arbitrary and capricious: “Both [rates] were efforts to calculate the actual costs of providing VRS services, and both treated the same categories of costs as reimbursable.” Sorensen Commc’ns, Inc. v. FCC, Nos. 10-9536 et al. (10th Cir.).
Please contact Ross Buntrock, Jon Canis, Michael Hazzard, Stephanie Joyce, or Joseph Bowser (contact information below) for further information.
Legislative Outlook
- Rep. Greg Walden, R-Ore., and Terry Lee, R-Neb., Chair and Vice-Chair of the House Communications Subcommittee, released a statement praising the FCC’s agreement with the wireless industry on “bill shock” (see Mobile item above): “Today’s announcement is a win for American consumers, for America’s wireless companies, and for the Federal Communications Commission. Rather than adopt heavy-handed regulations that would hamper Americas job creators, the FCC and the wireless industry worked together to craft a result that protects consumers without costly mandates.” To read the full statement, click here.
- Sen. John “Jay” Rockefeller IV, D-W.Va., Chair of the Senate Commerce Committee, has requested a report from the FTC on the privacy implications of facial recognition technology. In a news release, the Senator stated “The privacy concerns are evident. As the Commerce Committee considers privacy legislation in the future, we will need to understand the capabilities of this technology as well as the privacy and security concerns raised by their development.” The letter itself is available here.
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.
- UPDATE: The Mobile Internet Content Coalition (MICC) Summit that was scheduled for November 15, 2011, has been cancelled.
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 |