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 will hold “Senior Digital Literacy Day” tomorrow, October 30, 2012, from 9:30 am to 12:00 pm ET. The event is designed to show “how high speed Internet service can benefit older Americans” and will include interactive demonstrations with several types of devices. Public attendance is limited to 140 persons; to register contact Susan Fisenne at Susan.Fisenne@fcc.gov or by phone at 202-418-2502. To read the agenda, click here.
• The next FCC Open Meeting will be November 30, 2012. We will publish the Tentative Agenda once 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 October 26, 2012, pursuant to authority granted in The Digital Millennium Copyright Act, passed in 1998, the Librarian of Congress announced exceptions to the law that otherwise makes it illegal to “circumvent” digital rights management schemes. The exceptions will last for a period of three years, and two changes are relevant to mobile phone users. First, the new rules continue to allow “jailbreaking” – the circumvention of “computer programs that enable wireless telephone handsets to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the telephone handset.” However, the new rules do not allow “jailbreaking” of tablet computers, such as the Apple iPad. The Librarian found that “the record lacked a sufficient basis to develop an appropriate definition for the ‘tablet’ category of devices, a necessary predicate to extending the exemption beyond smartphones.” The second change relates to a consumer’s ability to unlock a phone to take it to a new carrier. The new rules discontinue this exception, unless the phone was “originally acquired from the operator of a wireless telecommunications network or retailer no later than ninety days after the effective date of this exemption.” In other words, unless you own the phone by January 28, 2013, you may not unlock the phone for use on another carrier’s network. This change was based on a perception of changing legal standards about ownership of software and a determination that there are more unlocked phones available on the market than in prior years. The Librarian’s full decision 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

• 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.
• 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.

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 October 25, 2012, the California Public Utilities Commission (CPUC) adopted the recommended decision of an administrative law judge (ALJ) that requires Pac-West Telecomm, Inc. to refund payments received from Comcast Phone of California LLC associated with terminating ISP-bound traffic. In 2008, the CPUC ordered Comcast to pay Pac-West approximately $1 million in access charges for ISP-bound traffic. In 2011, however, the Ninth Circuit overturned the CPUC’s similar decision that AT&T Communications of California, Inc. must pay Pac-West approximately $10 million for the same type of traffic. There, the Ninth Circuit held that the FCC’s ISP Remand Order governs all ISP-bound traffic and therefore the traffic was only compensable at $0.0007 per minute, and not pursuant to the terms of Pac-West’s tariffs. In the recommended decision, the ALJ held that Comcast’s dispute with Pac-West was “legally indistinguishable” from the Ninth Circuit case, and does not contain any exception for so-called “VNXX” ISP-bound traffic. In adopting the recommended decision, the CPUC has ordered Pac-West to pay Comcast a total of $379,446.43, less $0.0007 per minute of use for all ISP-bound traffic originated by Comcast and terminated by Pac-West during the period April 4, 2004 through August 27, 2007. Docket No. 07-09-010.

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

• Form 499-Q is due November 1, 2012, for all filers that are not considered de minimis for Universal Service filing purposes. This filing encompasses historical revenues from the third quarter of 2012 and projected revenues for the first quarter of 2013. A copy of the current FCC Form 499-Q can be found 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, 2012, to the Universal Service Administrative Company (USAC) and the Chief, Industry Analysis and Technology Division of the FCC.
• 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

• On October 23, 2012, House Majority Leader Eric Cantor, R-Va., released a report called “The Imperial Presidency” which cited, as one example, the FCC’s net neutrality rules. The report includes the following narrative:
  
  

  In recent years technology has been one of our nation’s strongest economic growth areas, yet the Federal Communications Commission (FCC) has sought to impose new network neutrality rules on the internet. In 2010, a Federal court struck down the FCC’s first attempt to regulate the internet; noting that the FCC lacked authority to issue such regulations. Then-Energy & Commerce Committee Chairman Henry Waxman (D-Calif.) introduced legislation to provide such authority. Despite the fact that the legislation was not enacted, the FCC proceeded anyway with new net neutrality rules. Businesses negatively impacted by these new regulations have been forced to go to court once again to defend against regulations that the agency has no authority to issue.
  
  In April, the House passed a Resolution of Disapproval, H. J. Res. 37, to overturn the FCC’s controversial internet rules that stifle small business growth and investment in order to promote freedom and innovation.

  Congressman Cantor also cites the auto efficiency regulations and the creation of the Consumer Financial Protection Bureau as additional examples of the “continuous disregard of legislative authority and the Constitutionally-required separation of powers.” 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 19, 2012, the United States Court of Appeals for the Ninth Circuit dismissed the appeal by Western Radio Services Co. of the Oregon federal district court’s grant of summary judgment for the Public Utilities Commission of Oregon (PUC). Western Radio had challenged the PUC’s order that “CenturyTel could on a case-by-case basis waive its rural exemption under the [Communications] Act (which exempts rural telephone companies from several of the Act’s obligations).” The federal district court dismissed Western Union’s case, because, while it was pending, CenturyTel “entered into a binding agreement with the FCC promising that its subsidiaries would not assert the rural exemption.” Western Union challenged the dismissal on the ground that a party’s voluntary cessation of conduct cannot moot a federal lawsuit. The appeals court disagreed with Western Union: “because the FCC agreement is binding and does not expire, there is ‘no reasonable expectation … that the alleged violation will recur.’” Western Radio Servs. Co. v. CenturyTel of Eastern Oregon, Inc., No. 11-35703 (9th Cir.).

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

Legislative Outlook

• On October 22, 2012, Sen. John “Jay” Rockefeller IV, D-W. Va., Chair of the Senate Commerce Committee, issued a release thanking FTC staff for providing their report on facial recognition technologies that he had requested in October 2011. The Senator noted that “The FTC report highlights these potential dangers, such as specifically recognizing and tagging otherwise anonymous people in photographs, and gives companies practical advice on how to use facial recognition technologies. ... As Chairman of the Commerce Committee, I fully intend to monitor how facial recognition technologies are increasingly adopted and used as a commercial practice.”

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.