Arent Fox's This Week in Telecom - September 12, 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 Tentative Agenda for the next FCC open meeting on September 22, 2011, contains two items: a Notice of Proposed Rulemaking on accelerating the deployment of Next Generation 911 (NG 911) service; and a white paper from the Public Safety and Homeland Security Bureau on aerial communications infrastructure to facilitate communication among first responders. The meeting is scheduled to begin at 10:45 am Eastern. To view the Tentative Agenda, click here.
Please contact Ross Buntrock, Alan Fishel, Michael Hazzard, or Jon Canis (contact information below) for further information.
The Mobile Market
- Three U.K., Great Britain’s fourth-largest mobile phone service company, has filed a “letter of concern” with the European Commission regarding a joint venture between O2, the British entity of Telefonica of Spain, Vodafone, and Everything Everwhere, co-owned by Deutsche Telekom and France Telecom. The joint venture will establish a common platform for mobile payments and advertising. Three U.K. argues that the three entities, which it claims own 90% of the British mobile market, have entered into an anticompetitive arrangement that will impede competition and result in higher prices to consumers.
- On September 6, 2011, the U.S. Court of Appeals for the District of Columbia Circuit affirmed a district court opinion requiring the Department of Justice (DOJ) to turn over documents to the ACLU relating to the government’s use of mobile phone location data in criminal prosecutions. The Court of Appeals agreed that the exceptions to the Freedom of Information Act do not allow DOJ to withhold “docket information from criminal cases in which the government prosecuted individuals after judges granted applications for cell phone location data without determining probable cause, and in which those individuals were ultimately convicted or entered public guilty pleas.” The decision also remands the case to the district court in order to develop the record regarding additional documents in cases in which the party was acquitted, the case was dismissed, or the subject of the tracking has not yet been prosecuted. The ACLU seeks the information in conjunction with its efforts to prevent future warrantless tracking of suspects. The full decision is available here. ACLU and American Civil Liberties Union Foundation v. U.S. Department of Justice, Case No. 10-5159 (D.C. Cir.)
- Comments on the FCC Further Notice of Proposed Rulemaking regarding the use of microwave links for wireless backhaul are due 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 United States 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
- The FTC has reached a settlement with two developers of mobile applications who created and sold apps, called “AcneApp” and “AcnePwner”, that claimed to treat acne through colored lights emitted from smartphones and other mobile devices. The apps were sold in Apple’s iTunes Store and Google’s Android Marketplace for $.99 and $1.99. The settlements bar the marketers from making health-related claims without scientific evidence, and require them to pay fines of $14,294 and $1,700. “Smartphones make our lives easier in countless ways, but unfortunately when it comes to curing acne, there’s no app for that,” said FTC Chairman Jon Leibowitz. More information 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 8, 2011, the Florida Public Service Commission (PSC) denied the joint motion to dismiss filed by a group of competitive local exchange carriers (CLECs) against Qwest’s rate-discrimination that alleges the CLECs offered off-tariff access rates that were not made available to Qwest. The CLECs, which include Verizon, XO, tw telecom, and Paetec, argued that the Florida Legislature’s recent changes to the PSC’s authority divested it of jurisdiction over the dispute. The PSC disagreed, finding that the new law did not affect “the Commission’s obligation to ensure fair and effective competition among telecommunications service providers; therefore, the Commission still retains jurisdiction to oversee fair and effective competition.” Docket No. 090538-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
- The Universal Service contribution factor for the Third Quarter of 2011 is 14.4%. A copy of the notice can be found here.
- Payment of annual FCC regulatory fees is due by 11:59 pm EST on September 14, 2011. To view the Public Notice setting the deadline, click here. To review the payment procedures, click here. To learn about the electronic Fee Filer system, click here.
Please contact Ross Buntrock, Jon Canis, or Michael Hazzard (contact information below) for further information regarding compliance matters.
Broadband News
- On September 8, 2011, Chairman Genachowski spoke at the FCC’s “Back to School Forum” which was held at Columbia Heights Educational Campus in Washington D.C. and focused on the opportunities and challenges presented by our youth’s use of technology. Chairman Genachowski touted broadband as a “job creator,” but highlighted concerns particular to high-tech usage by adolescents such as unwanted texts and texting while driving. The forum featured a panel of experts, including a parent of a Columbia Heights student, to discuss these issues. The text of the speech may be found here.
- Also on September 8, the FCC issued a reminder about its “Apps for Communities” contest, noting that the deadline for submissions has been extended to October 3, 2011. The challenge is a joint initiative of the John S. and James L. Knight Foundation and the FCC aimed toward increasing Internet accessibility for underserved populations. It offers up to $100,000 in prizes to the winning developers. Contest judges include Marc Andreessen, Mayor Cory Booker, Charles Best, and Tom Lee. More information is available here.
- EXTENSION GRANTED: The FCC has extended the time period for submitting nominations for the Open Internet Advisory to October 1, 2011. For more information, click here.
- Reply Comments on the FCC Notice of Inquiry (NOI) for next year’s “section 706” report are due 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 6, 2011, the United States Court of Appeals for the District of Columbia Circuit ordered the FCC to respond within 30 days to the petition for writ of mandamus filed by CompTel and other parties to require the Commission to conclude the special access rulemaking initiated in 2005. The petitioners argue that “[t]he FCC has failed to perform its core function of ensuring that the rules governing special access result in just and reasonable rates, terms and conditions, notwithstanding increasing evidence of the severe harms to competition, the national economy, and consumers resulting from the agency's inaction.” Under court rules, an agency has no obligation to respond to a mandamus petition absent court order. In re CompTel, No. 11-1262 (D.C. Cir.).
- On August 30, 2011, the United States Court of Appeals for the Sixth Circuit reversed an Ohio trial court’s dismissal of a Telephone Consumer Protection Act (TCPA) lawsuit. The trial court had concluded that “the plain language of the TCPA creates a private right of action in state – not federal – court.” The Sixth Circuit disagreed, but noted that “jurisdiction of federal courts over private TCPA claims has been the subject of much debate.” The Second, Third, Fourth, Fifth, Ninth, and Eleventh Circuits all have held that the TCPA does not create federal-question jurisdiction for private claims. The Sixth Circuit, however, held in 2010 that federal jurisdiction exists, and relied on that decision here rather than adopt the later, unpublished opinion on which the district court relied for the opposite conclusion. The appeals court remanded the case back to the trial court to proceed with the case. Charvat v. NMP, LLC, No. 10-3390 (6th Cir.).
Please contact Ross Buntrock, Jon Canis, Michael Hazzard, Stephanie Joyce, or Joseph Bowser (contact information below) for further information.
Legislative Outlook
- The Subcommittee on Commerce, Manufacturing, and Trade of the House Commerce Committee will hold a hearing titled “Internet Privacy: The Impact and Burden of EU Regulation” on Thursday, September 15, 2011, at 9:30 a.m. in 2322 Rayburn House Office Building. More information is available here.
- The Antitrust Subcommittee of the Senate Judiciary Committee will hold a hearing titled “The Power of Google: Serving Consumers or Threatening Competition?” on September 21, 2011, at 2:00 pm Eastern in 226 Dirksen Senate Office Building. For more information, click here.
Please contact Stephanie Joyce (contact information below) for further information.
Upcoming Events
- Jeffrey Rummel, a Partner in our Group, will speak at the 8th Military Antennas Summit held by the Institute for Defense & Government Advancement September 12-15, 2011, in Washington, DC. For more information, click here.
- Stephanie Joyce, a Partner in our Group, will moderate a panel at the Bisnow event titled “Entrepreneurs in the Cloud: Founders and VCs” on September 14, 2011, that will run from 7:30 to 10:00 am Eastern at the McLean Hilton in Tysons Corner. For more information or to register, click here.
- Jonathan Canis and Ross Buntrock, Partners in our Group, will speak at CompTel Plus in Orlando, Florida on 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 Internet 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.
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 |