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 next FCC Open Meeting is scheduled for October 27, 2011, at 10:30 am Eastern. No agenda has yet been released, but it is expected that the Commission's order regarding Universal Service and Intercarrier Compensation Reform will be presented for vote.

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

The Mobile Market

• Judge Ellen Segal Huvelle of the United States District Court for the District of Columbia entered a scheduling order last week in the U.S. Department of Justice suit to block the AT&T/T-Mobile merger. The order is based on separate proposals filed by the DOJ and AT&T/T-Mobile. Expert witness reports are due December 28, 2011, and trial is scheduled to start February 13, 2012.
• Comments on the FCC Further Notice of Proposed Rulemaking regarding the use of microwave links for wireless backhaul are due tomorrow, October 4, 2011, and Reply Comments 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 September 28, 2011, Rep. Ed Markey, D-Mass., and Rep. Joe Barton, R-Tex., jointly sent a letter to the FTC requesting that it investigate Facebook's practice of recording information about websites visited by users after they log out of Facebook. The practice, which uses cookies programmed to remain active after log-out, was discovered and publicized by a blogger. Facebook claims it has stopped the practice. The letter is available here.
• The FTC has settled its case against a Florida text-message spammer who allegedly sent millions of unwanted text messages regarding home loan modifications and represented that he was associated with a government agency. The settlement bars the defendant from sending spam text messages and requires him to pay $32,000 to settle a $58,946.90 judgment. 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 September 28, 2011, the Iowa Utilities Board (IUB) issued an order suspending the proposed tariff amendment of OmniTel Communications, Inc. and docketing it for further investigation. In 2008, Verizon filed a complaint against OmniTel alleging that it was unlawfully attempting to impose intrastate access charges on calls destined for conference calling companies served by OmniTel. The case settled, and as part of the agreement OmniTel filed a tariff amendment on August 29, 2008 establishing a "Contract Offer" provision that would allow any other interexchange carrier (IXC) to receive the same terms and conditions that were in the settlement agreement. The terms and conditions of the Contract Offer expired on July 1, 2011. On September 1, 2011, OmniTel filed a proposed amendment extending the special contracts term to July 1, 2014, which continues to state that an IXC may not challenge traffic that is ultimately delivered to free or low-rate conference calling services. The Iowa Consumer Advocate moved to reject the proposed tariff amendment, arguing that it is inconsistent with the IUB's High Volume Access Services (HVAS) rules adopted in 2009. The IUB agreed, in part, with the Consumer Advocate. The IUB did not, however, reject the proposed tariff amendment outright as requested, instead suspending the tariff and directing OmniTel to respond to the Consumer Advocate's motion within 30 days. Docket No. TF-2011-0095.
• On September 27, 2011, the Florida Public Service Commission (FLPSC) established a procedural schedule in the complaint proceeding of Bright House Networks Information Services against Verizon Business Service. The complaint alleges that Verizon is refusing to pay intrastate access charges to Bright House for VoIP traffic. Pursuant to the FLPSC order, direct testimony will be due November 1, 2011, and rebuttal testimony will be due December 2, 2011. The hearing is set for March 6, 2012, with post-hearing briefs due April 13, 2012. Docket No. 110056-TP.

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

• On September 27, 2011, the National Telecommunications and Information Administration (NTIA) submitted its Tenth Quarterly Status Report on the Broadband Technology Opportunities Program (BTOP) to Congress. The report focuses on BTOP's activities from April to June, 2011. A copy of the report can be found here.
• 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 September 28, 2011, Free Press appealed the FCC's Open Internet Order in the Court of Appeals for the First Circuit. The rules were published in the Federal Register on September 23, 2011. The rules are set to go into effect 60 days after publication, on November 20, 2011. Free Press challenges the Order's distinction between wireline and wireless Internet access services, and seeks to make the rules more stringent. Several other organizations and companies are expected to appeal the rules, including Verizon and MetroPCS whose previous appeals were dismissed as premature. Free Press's statement on its appeal can be found here. The Federal Register publication can be found here.
• Today Chairman Genachowski and Commissioner Copps will attend an event at Arizona State University from 9:00 to 11:30 am on the recommendations of the recently released staff-level report on the current state of the media landscape. The report, titled "Information Needs of Communities: The Changing Media Landscape in a Broadband Age," describes tremendous innovation in the media landscape but also identifies critical gaps, including a shortage of local news reporting. It offers recommendations for government, nonprofit players and entrepreneurs to get involved. Panelists include university professors and members of the media. More information may be found here.
• On September 27, 2011, Chairman Genachowski spoke at the headquarters of LivingSocial in Washington, D.C. about how broadband is creating jobs across many sectors of the economy. The Chairman was introduced by LivingSocial CEO and Co-Founder, Tim O'Shaughnessy, and Warren Brown, Founder and Owner of CakeLove, a DC bakery that grew to seven stores by relying on broadband. Highlighting the importance of broadband to the U.S. economy, the Chairman identified voluntary spectrum auctions and modernizing the Universal Service Fund as ways to increase capacity and adoption. Chairman Genachowski's speech is available here. The FCC also released a fact sheet on the event.
• Reply Comments on the FCC Notice of Inquiry (NOI) for next year's "section 706" report are tomorrow, October 4, 2011. To view the NOI, click here.

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

In the Courts

• On September 27, 2011, the United States District Court for the Eastern District of Missouri granted the request of Cable One motion to stay the case brought by Union Electric for unpaid pole-attachment charges and refer it to the FCC. As the trial court explained, Union Electric claims that Cable One breached the parties' licensing agreement, entered into under the terms of the Pole Attachment Act, by "offering voice over internet protocol (VoIP) telephone service, dedicated line data transport services, and E-rate services through attachments reported as for [cable television] use." Cable One defended on the ground that the FCC has never classified VoIP service as a telecommunications service under the Communications Act, and thus the court should either dismiss Union Electric's claims or refer the case to the FCC under the doctrine of primary jurisdiction. The court agreed: "The classification of the services offered by defendant satisfies the two factors to be considered in applying the primary jurisdiction doctrine: (1) area of agency expertise and (2) promotion of uniformity and consistency." Cable One was ordered to file a status report with the Court in six months. Union Elec. Co. v. Cable One, Inc., No. 4:11-cv-299 CEJ (E.D. Mo.).
• On September 22, 2011, the United States District Court for the District of Maryland denied, without prejudice, Verizon Maryland's motion for summary judgment on Core Communications' claim for breach of the duty of good faith and fair dealing. The Maryland PSC had determined that Verizon acted in bad faith when it intentionally delayed action on Core's interconnection request. The District of Maryland reversed, but the Fourth Circuit overturned the reversal. As a result, the district court ordered briefing on that claim. After receiving the briefs, the Court issued an order stating that it agreed with Verizon that the claim cannot stand independently under Maryland law, but still refused to grant the motion because "[p]erhaps in a manner not now known to me, granting the motion would somehow affect defendant's claim for damages. Accordingly, plaintiff's motion is denied without prejudice to being renewed at a later stage of the litigation." Verizon Maryland, Inc. v. Core Commc'ns Inc., No. 08-503 (D. Md.).

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 Commerce, Manufacturing, and Trade will hold a hearing titled "Protecting Children's Privacy in an Electronic World" on October 5, 2011, at 9:00 am Eastern in 2123 Rayburn House Office Building.

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

Upcoming Events

• Jonathan Canis and Ross Buntrock, Partners in our Group, will speak at CompTel Plus in Orlando, Florida today, October 3, 2011, on a topic titled "Mediation, Complaints and Referrals: What Does It Take to Get Disputes Resolved Before the FCC?" For further information, click here.
• The Mobile 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.