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.

We hope that you had a restful holiday weekend.

Jump to a Topic:
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 FCC will hold an event titled “Developing with Accessibility” on September 6 and 7, 2012, at its Washington, DC headquarters. The purpose of the event is “to spur increased collaboration on accessibility solutions among developers from industry, consumer, and government sectors” with a particular focus on how “to build accessible apps for mobile phones and websites.” Those wishing to attend must pre-register for the event by sending their name, affiliation, and contact information to devacc@fcc.gov by August 31, 2012. For more information, click 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 Aviation Administration (FAA) announced last week that it is forming a group to determine whether portable electronic devices (PEDs) can safely be used during all phases of flight. Current rules require aircraft operators to determine that PEDs do not pose a risk before authorizing their use during flight, and generally require all devices to be turned off during takeoff and landing. The group, which will include government and industry representatives and is set to meet for six months, will explore “the establishment of technological standards associated with the use of PEDs during any phase of flight.” The study will not include consideration of the airborne use of cellphones for voice communications during flight. The FAA will accept public comments for 60 days after the notice is published in the Federal Register.

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 announced that it is extending the deadline to file comments regarding its further proposed modifications to the Children’s Online Privacy Protection Act (COPPA) Rule. The deadline for submitting public comments on the Supplemental Notice of Proposed Rulemaking will now be 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

• Due to recent reports that smart meters had overheated and possibly led to fires in Southeastern Pennsylvania, the Maryland Public Service Commission (MPSC) held a hearing on August 28, 2012, to obtain an update from Baltimore Gas & Electric Company, Potomac Electric Power Company, Delmarva Power & Light Company, and Southern Maryland Electric Cooperative, Inc. on the type of smart meters that will be or are currently installed within their respective service territories and whether they were aware of any issues of electrical overheating or malfunction. At the hearing, the companies provided oral comments and responded to questions from the MPSC. Each acknowledged reports of overheating, but none of the companies reported overheating that they attributed to the smart meters. Instead, the companies attributed overheating to aging and old electrical sockets in consumers’ homes. Other groups, including consumers and consumer advocates, will have an opportunity to file comment on the question of 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 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 August 29, 2012, West Virginia Public Service Commission (WVPSC) Staff submitted a recommended decision urging the WVPSC to dismiss a challenge by AT&T Communications of West Virginia and Verizon Communications to the YMax Communications Corp. intrastate switched access tariff revisions. YMax had informed Staff that it intends to withdraw its tariff and “re-file its rates when it has had time to address concerns raised by AT&T and Verizon.” YMax filed its proposed tariff revisions on May 25, 2012, and requested an effective date of June 24, 2012, but AT&T filed a petition to intervene and protest to tariff on June 11, 2012. AT&T argued that YMax’s rate revisions would allow it to charge interexchange carriers for access functions it did not provide, mirroring similar complaints AT&T has filed against YMax’s proposed tariff revisions in other states, including Missouri, New Mexico, Kentucky, Alabama, Maryland and Ohio. On June 22, 2012, the WVPSC issued an order suspending the revisions to YMax’s tariff for 120 days and referred the matter to an administrative law judge. Docket No. 12-0720-T-T.

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 August 29, 2012, the Republic Party adopted its 2012 platform at its National Convention in Tampa, Florida. The platform contains several provisions related to telecom, including “remov[ing] regulatory barriers that protect outdated technologies and business plans from innovation and competition, while preventing legacy regulation from interfering with new and disruptive technologies such as mobile delivery of voice video data.” It also contains Internet freedom provisions to resist international or intergovernmental control of the Internet. The platform also criticizes the FCC’s net neutrality rules that regulate the Internet “as if it were a railroad network.” Finally, the platform calls for limiting Internet gambling and the strict enforcement of pornography and obscenity laws. The 2012 Republican 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 August 24, 2012, the U.S. Court of Appeals for the Federal Circuit largely denied Verizon’s appeal of the $140 million damages awarded by a Virginia district court to ActiveVideo Networks on claims that Verizon FiOS infringed certain ActiveVideo patents for on-demand video. Verizon complained that the trial court improperly excluded its damages expert but allowed ActiveVideo to use its contract with GemStar to prove its damages. The Federal Circuit held that the “Cablevision agreement postdated the hypothetical negotiation by four years and the district court thus had a legitimate reason to exclude it.” It also held that Verizon was too late to complain about ActiveVideo’s use of another contract: “The fact that the district court allowed ActiveVideo’s expert to rely on the Gemstar agreement, which postdated the hypothetical negotiation by two years, is irrelevant because Verizon never challenged its admissibility.” The Federal Circuit did agree with Verizon, however, that the trial court incorrectly ruled that Verizon had infringed one of the four ActiveVideo patents at issue, but found that reversing that error did not reduce Verizon’s liability: “because Verizon has not argued either before the district court or on appeal that a finding of noninfringement of the ’582 patent should result in a reduction of damages, we affirm the damages award against Verizon in full.” The district court’s injunction against Verizon was dissolved on the ground that ActiveVideo’s damages are quantifiable. Active Video Networks Inc. v. Verizon Commc’ns Inc., No. 2011-1538 (Fed. Cir.).

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

Legislative Outlook

• Congress is out on recess. The US Senate returns on the afternoon of September 10, 2012, and the US House of Representatives convenes that evening.

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.