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 FCC has released the Final Agenda for its next Open Meeting to be held September 28, 2012, at 10:30 am Eastern. It contains the same three items previously noticed: 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 Final Agenda, click here.
• On September 19, 2012, FCC Chairman Julius Genachowski issued a statement praising the U.S. Senate Foreign Relations Committee for voting against a proposal from China and others that would give the International Telecommunication Union increased control over the Internet, stating “The proposals by some countries to restrict the free flow of information online would threaten one of the most powerful engines for global economic growth and the spread of democracy in human history. I fully support today’s vote[.]” His full statement is available 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

• The Federal Election Commission (FEC) voted last week to adopt an advisory opinion concerning the processing of political contributions via text message. In response to a request from AT&T, the FEC concluded that the company could establish a new rate structure for processing contributions to political committees by text message without it being considered an in-kind contribution. AT&T intends to implement a model where rates charged for processing the donation are a percentage of the contribution amount, a flat per-text message charge, or some combination of the two for text donations. According to AT&T, the rates will be “substantially less” than what the carrier charges for commercial content, which can be has much as 50% of the amount paid by the consumer. Advisory Opinion 2012-31 can be found 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

• Today, September 24, 2012, at 2:00 pm Eastern, the mHealth Task Force will unveil its findings and recommendations regarding the use of mobile devices to improve health care. Earlier this year, the FCC convened the Task Force, led by Co-Chairs Julian Goldman of Partners Healthcare System, Robert Jarrin of Qualcomm, and Douglas Trauner of Health Analytics Services. The event will be held at The Information Technology and Innovation Foundation, 1101 K Street NW, Suite 610A, Washington, D.C. For more information about the event, click 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 by October 1, 2012 on the risks of electrical overheating and malfunction posed by smart meters. 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 18, 2012, a group of Michigan competitive local exchange carriers (CLECs) opposed AT&T Michigan’s request that the Michigan Public Service Commission (MPSC) amend its proposed order resolving the parties’ interconnection agreement (ICA) arbitration. The CLECs, which include ACD Telecom, Inc., CynergyComm.Net, Inc., DayStarr, LLC, Lucre, Inc., and Osirus Communications, Inc., had filed a petition for arbitration on October 24, 2011, asserting that the CLECs and AT&T had agreed to use an existing ICA between AT&T and BCR Network Services, Inc. as a baseline agreement, but that the companies were unable to resolve certain terms for a final agreement. On February 15, 2012, the MPSC issued an order adopting the arbitration panel’s recommended decision with respect to the terms in dispute. AT&T, however, now requests modification of the new resale provision which, it argues, would require it, “in contravention of the Telecommunications Act of 1996, to provide services to the CLECs based on retail rates that no longer apply” to AT&T’s retail customers. In their opposition, the CLECs argue that the resale language has been fully litigated. “AT&T was fully aware of and had ample opportunity to respond to the CLECs’ position relating to” the resale terms, and thus, according to the CLECs, should be precluded from reopening this issue now. 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 Universal Service contribution factor for the fourth quarter of 2012 is 17.4%. A copy of the Public Notice announcing the rate can be found here. (DA 12-1484)

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 18, 2012, Free Press, Public Knowledge, and the New America Foundation’s Open Technology Institute announced they would file a formal complaint at the FCC alleging that AT&T, Inc. is violating the Open Internet rules by limiting the Apple FaceTime video chat service to certain mobile broadband plans offered by AT&T. AT&T has stated that FaceTime will not work over cellular data unless the subscriber has a Mobile Share data plan (as opposed to other AT&T data plans), although it will continue to work over WiFi. The groups allege that this practice violates open Internet rules because AT&T is blocking an app that competes with AT&T’s voice service, but must give 10 days’ notice before filing a formal complaint. AT&T previously responded to criticism on this issue by arguing that the open Internet rules “do not regulate the availability to customers of applications that are preloaded on phone.” A statement from the public interest groups about their intent to file a complaint is available here. AT&T’s prior statement about FaceTime 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 14, 2012, the U.S. District Court for the Eastern District of Pennsylvania denied the joint motion of Alcatel, Lucent, and Ericsson for reconsideration of the court’s August 21, 2012 order denying their motion to dismiss the TruePosition antitrust case alleging anticompetitive manipulation of the industry standards body, the Third Generation Partnership Program (3GPP). The defendants argued that, in denying their motion to dismiss, the court gave undue credit to TruePosition’s allegations, arguing that the court could not credit the statement that “innocuous parallel conduct was the result of an unlawful agreement.” The court held that TruePosition’s claim is broader than that allegation, because it “includes the premise that the corporate defendants cloaked themselves with the authority of 3GPP, and allegedly abused 3GPP’s rules and procedures, in order to frustrate competition in the marketplace.” The court also rejected the request for certification of the issue to the Court of Appeals. The case will proceed to discovery. True Position, Inc. v. LM Ericsson Tel. Co., No. 2:11-cv-04574 (E.D. Pa.).

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

Legislative Outlook

• On September 19, 2012, the U.S. Senate Foreign Relations Committee voted unanimously to disapprove a proposal that would give the International Telecommunication Union, an agency within the United Nations, increased control of the Internet. S. Res. 446, introduced by Sen. Marco Rubio, R-Fla., states in part that “the Senate calls on the President to continue to oppose any effort to transfer control of the Internet to the United Nations or any other intergovernmental organization.” The full text of the resolution is available here.
• Also on September 19, Chairman John “Jay” Rockefeller IV, R-W.Va., Chair of the Senate Commerce Committee, sent letters to several CEOs of Fortune 500 companies imploring them to increase efforts to adopt cybersecurity measures. The companies included Wal-Mart, Exxon Mobil, AT&T, and Apple. An exemplar letter, addressed to IBM, is available here.

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

Upcoming Events

• The Federal Communications Bar Association will hold a event to meet the FCC Bureau and Office Chiefs on October 18, 2012, from 6:00-8:00 pm Eastern at Capital Hilton Hotel, 1001 16th Street, NW, Washington, DC. For more information or to register, 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.