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 FCC has released the Tentative Agenda for its next Open Meeting to be held September 28, 2012, at 10:30 am Eastern. It contains three items: a Notice of Proposed Rulemaking on satellite earth station licensing requirements; an NPRM on establishing an incentive auction for returned broadcast spectrum; and an NPRM on mobile spectrum holdings. To read the Tentative Agenda, click here.
• 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.

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 September 12, 2012, Rep. Edward J. Markey, D-Mass., introduced HR 6377, the Mobile Device Privacy Act, that would require disclosures to consumers about any monitoring software on their mobile phones and prior consent from the consumer before the software is activated. Markey is Co-Chairman of the Bi-Partisan Congressional Privacy Caucus. The bill comes in response to reports last year about “Carrier IQ,” software installed on many mobile phones that can relay information about the user’s activities. The proposed bill would require disclosure of the types of information that could be collected, who the information will be shared with, and how it will be used. The bill would authorize enforcement actions by both the FCC and FTC, and by state attorneys general or other state officials. It would also authorize private rights of actions by injured parties. HR 6377 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

• Following a public comment period, the FTC has finalized the terms of a settlement with Myspace. The settlement follows allegations that Myspace allowed advertisers to access personally identifying information after promising to keep such information private. The settlement requires Myspace to implement a comprehensive privacy program, submit to independent audits for the next 20 years, and refrain from privacy misrepresentations. More information regarding the settlement is available here.
• 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

• The FCC has finalized rules on medical body-area networks (MBANs), officially allowing the devices to operate in the 2360-2400 Megahertz spectrum range. The action makes the U.S. the first country in the world to open up spectrum to networks of wireless medical sensors. MBANs will operate on what the FCC calls its “license-by-rule” framework, meaning that healthcare providers will have to register with a coordinator that has yet to be named. The rules take effect on October 10, 2012. According to the FCC, MBAN technology “promises to enhance patient care as well as to achieve efficiencies that can reduce overall health care costs.” The rules are available here.
  
  Reply 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 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.
• As reported on September 4, 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.

Please contact Stephanie Joyce, Jeffrey Rummel, G. David Carter, or Stephen Thompson (contact information below) for further information.

Developments in Intercarrier Compensation

• On September 11, 2012, the Texas Public Utility Commission (TPUC) issued a proposed award in a consolidated arbitration proceeding brought by several Texas rural local exchange carriers (RLECs) against Halo Wireless, Inc. The RLECs filed their petition for compulsory arbitration pursuant to 47 U.S.C. § 332 on December 22, 2011, demanding an interconnection agreement (ICA) for the exchange of wireless traffic with Halo and to receive interim intercarrier compensation. The RLECs also asserted that Halo was masking the nature of its traffic to make the traffic appear to be wireless traffic when it was in fact landline traffic routed through AT&T for delivery to the RLECs, and thus subject to the RLECs’ switched access tariffs. During the course of the proceeding, Halo declared Chapter 11 bankruptcy and sought a stay of the proceeding from the U.S. Bankruptcy Court for the Eastern District of Texas. That court, however, ruled that the federal bankruptcy code’s automatic stay provisions do not apply to state commission proceedings and remanded the RLECs’ petition back to the TPUC. After the remand, Halo declared Chapter 7 bankruptcy and began the liquidation process, mooting the RLECs’ request for a going-forward ICA. With respect to intercarrier compensation, the panel ruled in favor of the RLECs. The proposed award contains schedules to reflect the appropriate amounts that Halo owes to each of the RLECs. The TPUC is giving parties until September 21, 2012 to file any exceptions to the arbitration decision. Docket No. 40032.

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 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 10, 2012, the FCC filed its brief in the appeal of the Open Internet Rules. The FCC defended the rules, arguing that openness is critical to the success of the Internet and that threats to openness justify the rules. The FCC outlined a long history of regulation, from the rules applied to computer-based networks in the 1980s to the requirement in Section 706(b) that the FCC “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans” by promoting competition. It also cited other statutory authority, such as over spectrum licenses, universal service, and to protect competition in video distribution. In addition, the FCC also argued that an open Internet drives investment and economic growth. Finally, the FCC identified the threats to an open Internet, which include providers favoring their services over competing services, providers demanding additional compensation to allow priority access to edge providers, and the risk of a provider downgrading traffic to companies that do not pay for priority access. Verizon and MetroPCS must file reply briefs by October 24, 2012. Verizon Wireless v. FCC, Case No. 11-1355 and consolidated cases (D.C. Cir.).

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

In the Courts

• On September 10, 2012, the United States Court of Appeals for the Ninth Circuit largely affirmed a California federal court’s injunction to prevent the City of San Francisco from implementing its mobile phone radiation warning ordinance. The ordinance would have required all retailers of mobile phones to provide various warnings and literature to their customers about the potential health risks from mobile phone use. With the exception of a revised “fact sheet” that retailers would have to give their customers, the trial court enjoined the law as a violation of the retailers’ First Amendment right to free speech. The Ninth Circuit agreed with the trial court, but even found the fact sheet problematic on the ground that consumers could be confused by the potentially conflicting positions of the City and the FCC. As the court of appeals explained, the FCC “has established limits of radiofrequency energy exposure, within which it has concluded using cellphones is safe.” The court concluded that it “cannot say on the basis of this record that the fact sheet as modified by the district court is both ‘purely factual and uncontroversial.’” It therefore remanded the case to the district court to resolve that narrower issue, leaving in place the district court’s injunction. CTIA – The Wireless Association v. City and County of San Francisco, No. 11-17773 (9th Cir.).

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

Legislative Outlook

• On September 12, 2012, Sen. John “Jay” Rockefeller IV, D-W.Va., Chair of the Senate Commerce Committee, and Ranking Member Kay Bailey Hutchison, R-Tex., attended the first meeting of the Science, Technology and Policy Forum in Washington, DC. The purpose of the Forum is “to elevate the role of science and technology in government.” Of the Forum, Sen. Rockefeller stated “There is much more that we can do to bring science and the hard analysis of the scientific community into the decision making realm of Congress. We need to do everything we can to keep the United States at the leading edge of innovation.” To read a press release about the event, click here.

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

Upcoming Events

• The International Association of Privacy Professionals (IAPP) is hosting a Privacy After Hours event on September 19, 2012, at 5:00 pm ET at the Science Club, 1136 19th Street NW, Washington, DC. Non-members are welcome to attend. For more information, 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.