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 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 next two FCC Open Meetings will be held on September 28, 2012, and October 17, 2012, at 10:30 am Eastern. We will release the Tentative Agendas when they are released.
• The next Open Internet Advisory Committee (OIAC) meeting will take place October 9, 2012, from 10:00 A.M. to 12:00 P.M. in Milstein West A at the Wasserstein Hall/Caspersen Student Center, Harvard Law School, 1585 Massachusetts Avenue, Cambridge, MA 02138. The meeting will focus on issues related to the four working groups established within the OIAC: Mobile Broadband, Economic Impacts of Open Internet Frameworks, Specialized Services, and Transparency. There will be time for public comments at the meeting, and comments may be submitted beforehand in writing. More information is available here.
  
  On August 31, 2012, the FCC announced how the ex parte rules will apply to the OIAC. Because the OIAC is advising the FCC and will not directly result in the promulgation of new rules, the presentations to the OIAC will be treated as exempt presentations. Because issues addressed at the OIAC may be related to pending FCC proceedings, the FCC “will not rely in these proceedings on any information submitted to the OIAC, or to any of its subcommittees or working groups, unless that information is first placed in the record of the relevant proceeding.” More information is available here.

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

The Mobile Market

• Last week, the European Commission approved a joint venture in the United Kingdom between Vodafone, Telefonica (O2), and Everything Everywhere. Everything Everywhere is a venture created by the merger of T-Mobile UK and Orange UK. Although the commission’s preliminary investigation had raised concerns about competition in the emerging “mobile wallets” market, as well as mobile advertising and related services, the commission ultimately concluded that the joint venture was unlikely to impede competition and allowed it to go forward without any special conditions. According to a statement released by the three companies, “At the heart of the JV is a desire to bring to the UK an easy and effective solution for businesses to create and for consumers to enjoy mobile marketing and wallet services. With EC clearance received, the job of getting the JV up and running as quickly as possible can begin, starting with the hiring of the necessary people and the creation of the new company.” The statement 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

• Comments in the FTC proceeding to modify the Children’s Online Privacy Protection Act (COPPA) Rules are due September 24, 2012. The FTC, in response to comments filed in September 2011 regarding proposed changes to the COPPA Rule, proposes to modify certain definitions in the Rule to clarify its scope and strengthen its protections for the online collection, use, or disclosure of children’s personal information. The proposed modifications are to the definitions “personal information,” “support for internal operations,” “website or online service directed to children,” and “operator.” More information regarding the Supplemental Notice is available here. Information regarding the comment filing deadline extension is available here.
• The FTC will host a “Robocall Summit” on October 18, 2012, in Washington, DC. The purpose of the summit will be to examine issues surrounding illegal pre-recorded robocalls. It will also highlight industry innovations that could potentially be used to trace robocalls and prevent illegal robocallers from faking caller ID data. The Robocall Summit will be open to the public, and will include members of law enforcement, the telemarketing and telecommunications industry, consumer groups, as well as other stakeholders. More information about the FTC’s recent efforts related to robocall issues and the Robocall Summit 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

• As reported last week, the Maryland Public Service Commission seeks comment on the risks of electrical overheating and malfunction posed by smart meters before October 1, 2012. The MPSC Notice of Opportunity to Comment is available here.
• Comments on the FCC Further Notice of Proposed Rulemaking regarding medical body area networks (MBANs), and specifically the proposed procedures to pick an entity to coordinate MBAN use, are due today, September 10, 2012, and Reply Comments are due September 28, 2012. ET Dockets No. 08-59 and 12-54. The FNPRM, which was combined with a First Report and Order, 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 September 4, 2012, the Ninth Circuit Court of Appeals affirmed the U.S. District Court for the District of Nevada’s decision to dismiss Autotel’s complaint concerning an interconnection agreement (ICA) dispute with Nevada Bell Telephone Company, d/b/a AT&T of Nevada, but remanded the case back to the district court in order to evaluate whether Autotel can lodge a separate claim against AT&T pursuant to Federal Communications Commission (FCC) regulations. Autotel alleged in its complaint that it sought to interconnect with AT&T to provide service in certain AT&T territories in Nevada, but that AT&T refused to negotiate in good faith. The Ninth Circuit upheld the district court’s decision to dismiss Autotel’s good faith claim because it failed to exhaust its administrative remedies. The court noted, however, that Autotel alleged that AT&T “refused to pay reciprocal compensation as required by 47 CFR 51.717(b),” which states that a CMRS provider operating under an ICA predating the 1996 Act is allowed to renegotiate its ICA under the post-1996 Act regime without termination liability or other contractual penalty. The Ninth Circuit ruled that it would “leave it to the district court to consider in the first instance what, if any, impact these changes have on any claim Autotel may have under Section 51.717.” Autotel v. Nevada Bell Telephone Company, d/b/a AT&T of Nevada, No. 10-15663 (9th Cir.).

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

• Payment of the Federal Communications Commission (FCC) Annual Regulatory Fee is due by 11:59 PM EDT on September 13, 2012. The FCC will not be sending out reminder notices or invoices this year. Providers are required to log into the FCC’s Fee Filer service with their FCC Registration Number (FRN) and password in order to determine the amount of their assessment. Payment can be made online through the Commission’s Fee Filer service, via wire transfer, or by sending a check to the FCC’s Lockbox at U.S. Bank in St. Louis, MO. The Fee Filer service may be accessed here.
  
  Late payments carry penalty of 25 percent of the carrier’s assessment.
  
  A copy of the Public Notice may be found here.
  
  The FCC has also put out a guide to using the Fee Filer service, which may be found here as well as a guide to making the required payment, found here.
• The Universal Service contribution factor for the third quarter of 2012 is 15.7%. A copy of the Public Notice announcing the rate can be found here. (DA-12-917)

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 3, 2012, the Democratic Party released its 2012 platform at the Democratic National Convention in Charlotte, NC. The platform vows to preserve the United States’ “leadership in the Internet economy” by ensuring a “21st century digital infrastructure” through high-speed wireless broadband, freeing up wireless spectrum, and building a national public safety network. On net neutrality, “President Obama is strongly committed to protecting an open Internet that fosters investment, innovation, creativity, consumer choice, and free speech, unfettered by censorship or undue violations of privacy.” The platform highlights the Obama administration’s efforts on Internet consumer protection identifying the “Internet Privacy Bill of Rights” and “Do Not Track” options initiated by the government. Finally, and similarly to the Republican platform, the Democratic platform resists intergovernmental control of the Internet. The 2012 Democratic platform 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 September 4, 2012, the Eighth Circuit Court of Appeals dismissed Sprint’s appeal of the Southern District of Iowa’s decision to abstain from hearing Sprint’s challenge to an Iowa Utilities Board ruling that Sprint owed Windstream’s intrastate access charges on VoIP calls. Despite paying Windstream’s access charges for VoIP traffic for years, Sprint decided to cease paying them, and filed a case with the IUB asking it to approve its non-payment. The IUB held that Sprint owed the access charges. Sprint appealed that decision to the appropriate Iowa state court. On the same day that it filed its state court appeal, Sprint also filed a lawsuit in federal court against the IUB, asking that court to enjoin the IUB’s order. The federal district court dismissed Sprint’s complaint on abstention grounds, finding that it should not interfere with the ongoing state proceedings. The appeals court agreed: “Interests of comity and federalism support federal abstention where state judicial review of the IUB’s order has not yet been completed.” It also dismissed Sprint’s argument that the state’s interest in the case was not sufficient to justify the federal court’s abstention: “Iowa has an important state interest in regulating and enforcing its intrastate utility rates.” The appeals court did agree with Sprint, however, that its case should have been stayed rather than dismissed in the event the parties need to return to federal court after the conclusion of the state court appeal. Sprint Commc’ns Co. v. Jacobs, No. 11-2984 (8th Cir.).

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

Legislative Outlook

• The House Communications Subcommittee will hold a hearing titled "Creating Opportunities Through Improved Government Spectrum Efficiency" on September 13, 2012, at 10:15 am Eastern in 2123 Rayburn House Office Building.

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

Upcoming Events

• The Federal Communications Bar Association will have a “Meet and Greet the New FCC Commissioners” event on September 13, 2012, from 6:00 to 8:00 pm Eastern at the Capital Hilton, 1001 16th Street, NW. To sponsor or register for this event, 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.