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

• On October 24, 2011, the FCC released its Second Report and Order in the Access Broadband Over Power Lines docket. Broadband over power lines (BPL) is used to deliver high-speed telecommunications over medium-voltage power lines and to monitor and manage electricity usage through remote devices – so-called SmartGrid devices. The item responds to the order of the U.S. Court of Appeals for the D.C. Circuit which granted, in part, the appeal of the American Radio Relay League (ARRL) in 2008. ARRL had challenged the FCC’s BPL rules on the ground that those unlicensed services could interfere with licensed radio services. The FCC, in response to the court of appeals’ mandate, released unredacted copies of the technical studies on which it relied and reconsidered its standards for measuring BPL emissions. The amended standards will be effective 30 days after Federal Register Publication. The Second Report and Order is available 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 24, 2011, U.S. District Judge Ellen S. Huvelle, who is presiding over the United States Department of Justice (DOJ) suit to block the AT&T/T-Mobile merger, rejected a request from Sprint to gain access to all of the documents that AT&T has provided to DOJ in response to requests for information. She left open the possibility that DOJ could make a request to the special master overseeing discovery if it desires to share particular information with Sprint. Before ruling on Sprint’s motion, Judge Huvelle heard argument on the joint AT&T/T-Mobile motion to dismiss the claims of Sprint and Cellular South. Judge Huvelle has yet not ruled on those motions. United States v. AT&T Inc., No. 1:11-cv-01560 (D.D.C.).
  
  Separately, opponents of the merger are urging the FCC to schedule a hearing on the matter before an administrative law judge. A letter providing notice of a meeting held October 20, 2011, between CCIA, DISH Network, Free Press, Media Access Project, Public Knowledge, the Rural Cellular Association, Sprint, and Commission Staff states that “The record demonstrates that AT&T and Deutsche Telekom have failed to carry their burden of proof in showing that the proposed transaction is in the public interest.”

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 25, 2011, the FTC finalized settlements with the marketers of two smartphone applications, AcneApp and Acne Pwner, that claimed the apps cure acne. (See September 12 edition of This Week in Telecom.) According to an agency press release, the settlements prohibit the entities from making acne-related claims about their apps and from misrepresenting “research, tests, or studies.” More information is available here.
• On October 24, 2011, the FTC finalized a settlement with Google involving social network site Google Buzz. The FTC had alleged that Google Buzz infringed user privacy. In a March 2011 press release announcing the settlement, the FTC stated “Although Google led Gmail users to believe that they could choose whether or not they wanted to join the network, the options for declining or leaving the social network were ineffective.” The settlement prohibits Google from making further privacy-related representations, and requires it to implement a privacy program and to submit to independent privacy audits for the next 20 years. The FTC press release about the settlement 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 24, 2011, several competitive local exchange carriers (CLECs) petitioned the Michigan Public Service Commission (MPSC) to arbitrate an interconnection dispute with AT&T Michigan. The CLECs include ACD Telecom, Inc., Arialink Telecom LLC, CynergyComm.Net, Inc., DayStarr LLC, Lucre, Inc., Osirus Communications, Inc., and TelNet Worldwide, Inc. The CLECs allege AT&T notified them in September 2010 that it would be terminating their existing interconnection agreements (ICAs), but would use a Commission-approved ICA between AT&T and BCR Network Services, Inc. d/b/a The Data Warehouse as a negotiation template for new agreements. The CLECs assert that AT&T is refusing to agree to reasonable terms concerning, among other topics, required escrow payments for disputed traffic, the treatment of interconnection facilities, reciprocal compensation rates, and direct IP-to-IP interconnection. As to the last issue, the CLECs stated that due to “the importance of IP to IP interconnection … the Commission should ensure that the CLECs have the right to incorporate IP to IP interconnection provisions into the Agreement.” Docket No. U-16906.

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 National Telecommunications and Information Administration (NTIA) cancelled its $80 million Broadband Technology Opportunities (BTOP) grant to the State of Louisiana Board of Regents for failure to correct a number of deficiencies in its plan to deploy a fiber-optic network to anchor institutions in 12 parishes around the state. One factor in NTIA’s decision was that the project is 9 months behind. A copy of NTIA’s letter terminating the award can be found here.
• 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 25, 2011, the Broadband Commission for Digital Development, a United Nations agency, announced that it had agreed to “a set of four ‘ambitious but achievable’ new targets that countries around the world should strive to meet in order to ensure their populations fully participate in tomorrow’s emerging knowledge societies.” The four targets include increasing access to broadband globally and for every country to have a broadband plan. The International Telecommunication Union (ITU), the United Nations agency governing information and communication technologies, will measure each country’s progress toward the targets, and will produce an annual broadband report with rankings of nations in terms of broadband policy, affordability, and adoption. More information is available here.
• On October 26, 2011, several entities filed motions to intervene at the U.S. Court of Appeals for the District of Columbia Circuit in the appeal of the FCC’s Open Internet rules. CTIA seeks intervention “to support respondents Federal Communications Commission and the United States of America against claims that the FCC should have imposed more onerous regulatory obligations in the order under review.” The National Association of State Utility Consumer Advocates (NASUCA) also filed to support the FCC, stating “[t]he ratepayers represented by NASUCA’s members benefit from the rules….” The National Association of Regulatory Utility Commissioners (NARUC) also seeks intervention for reasons similar to NASUCA’s.

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

In the Courts

• On October 26, 2011, the United Kingdom’s High Court, Chancery Division ruled that British Telecom has two weeks to implement an order requiring it to block its customers’ access to Newzbin2, a file-sharing site against which six Hollywood studios (Studios) have secured an injunction. The court held, over BT’s objections, that BT must bear the cost of compliance with the order, and that BT will receive no indemnity protection from the Studios should the blocking lead to financial harm in other areas, such as retaliatory hacking. In addition, BT was ordered to pay all legal fees that it and the Studios incurred in litigating the matter. The court acknowledged that this framework was expected to apply to the Studios’ forthcoming challenges to the country’s other ISPs. Twentieth Century Fox Film Corp. v. British Telecomms. PLC, No. HC10C04385.

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

Legislative Outlook

• On October 26, 2011, a bipartisan group of Congressmen led by Lamar Smith, R-Tex., Chair of the House Judiciary Committee, introduced HR 3261, the Stop Online Piracy Act, which tightens the prohibition in the Copyright Act against the unlicensed streaming of copyrighted works, such as motion pictures, music, and software applications. One of the bill’s notable provisions would make the law enforceable against foreign websites that are “U.S.-directed”, meaning they seek to do business in the United States. It would also make third-party entities, such as search engines and Internet advertising services, immune from suit “for any act reasonably designed to comply with” a court order requiring take-down of infringing content and for taking voluntary action to take down content that the entity reasonably believes is infringing a copyright. The House Judiciary Committee has released as statement about HR 3261, available here. The text of HR 3261 is available here.
  
  The full Committee will hold a hearing on HR 3261 on November 16, 2011.
• Senator John “Jay” Rockefeller IV, D-W.Va., Chair of the Senate Commerce Committee, has sent inquiry letters to Visa and Mastercard about their proposed plan to use information about cardholders’ buying habits in targeted behavioral advertising campaigns. The Senator previously has introduced legislation – S.1207, the Data Security and Breach Notification Act of 2011, and S. 913, the Do-Not-Track Online Act of 2011 – aimed toward protecting information that businesses obtain from consumers. The letters ask Visa and Mastercard to provide the Department of Commerce with five types of information, including the companies’ policies for allowing consumers to opt out as required by the Gramm-Leach-Bliley Act. To read more about Sen. Rockefeller’s inquiry, and to find copies of the letters, click 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: