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 Events

Federal Communications Commission (FCC) Announcements

• On October 31, FCC Chairman Julius Genachowski issued a release praising the State Department’s second proposal to the World Conference on International Telecommunications (WCIT). He noted that “[t]his roadmap rejects proposals that would impose a new layer of international regulation on the Internet,” and that it “would eliminate regulatory burdens … Global telecommunications markets have thrived under this approach.” The full release is available here.
• The next FCC Open Meeting will be November 30, 2012. We will publish the Tentative Agenda once it is released.

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

The Mobile Market

• EXTENSION GRANTED: The FCC has granted a request for extension for comments on the Notice of Proposed Rulemaking in the Spectrum Holdings proceeding. Comments now are due November 28, 2012, with Reply Comments due January 7, 2013. To read the order, click here.

Please contact Ross Buntrock, Michael Hazzard, or G. David Carter (contact information below) for further information.

Federal Trade Commission (FTC) and Privacy Regulation

• As part of its effort to thwart robocalls, the FTC has announced that it is launching the “FTC Robocall Challenge” – a contest that will award a $50,000 cash prize for the best technical solution for blocking illegal robocalls. The FTC believes the challenge will allow it to “tap into the genius and technical expertise among the public” in order to develop a successful solution to the illegal robocall problem. The award will go to the person, team, or small company (with fewer than 10 employees) that develops the best robocall-blocking technology. Entries will be judged by the following criteria: (1) it must work; (2) be easy to use; and (3) be easy to implement and operate. The FTC Robocall Challenge is free and open to the public. Entries will be accepted until January 17, 2013. More information regarding the FTC Robocall Challenge is available here.
• Following up on its March 2012 “Protecting Consumer Privacy in an Era of Rapid Change” Report, the FTC has announced that it will host a workshop on December 6, 2012, “to explore the practices and privacy implications of comprehensive collection of data about consumers’ online activities.” The workshop will bring together consumer protection organizations, academics, business and industry representatives, and privacy professionals to discuss the issues raised by the collection and use of comprehensive data about consumers’ online activities by ISPs, browsers, search engines, and social media platforms. Interested parties may submit requests to participate as panelists and may recommend topics for inclusion on the agenda. The workshop is free and open to the public. More information 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 U.S. Department of Energy is supporting the initiative of the New York Independent System Operator (NYISO) by granting $37 million of the total $75 million devoted to Smart Grid Initiative Grant funds. This NYISO initiative will improve the efficiency of New York’s bulk grid, which includes hundreds of generating units and thousands of miles of high-voltage transmission lines. It will modernize the electric grid by adding 39 phasor measurement units (PMUs) that will relay system conditions at a rate of 60 times per second. PMUs measure and report system conditions as well as provide enhanced voltage stability. This data is needed for the detection of irregularities, to predict problems, and to choose corrective action. Eventually, the NYISO PMU network will connect with PMU networks in New England, the Mid-Atlantic, the Midwest, and Ontario. More information regarding this initiative is available here.
• Arent Fox, led by the Telecom Group, has been named a Strategic Affiliate of the 2012 mHealth Summit to take place December 3-5, 2012, at National Harbor near Washington, DC. The largest event of its kind, the 4th annual mHealth Summit brings together leaders in government, the private sector, industry, academia, providers and non-profit organizations from across the mHealth ecosystem to advance collaboration in the use of wireless technology to improve health outcomes in the United States and abroad.
  
  We are delighted to offer our subscribers a $50 discount off Full Access Registration to the Summit. To learn more about the event and register, click here. Enter code AF12 at the end of the registration process and receive $50 off your full access pass!
• The IEEE Power & Energy Society has announced its fourth Conference on Innovative Smart Grid Technologies (ISGT) to be held February 24-27, 2013, in Washington, DC. The ISGT Conference will provide a forum for participants to discuss state-of-the-art innovations in smart grid technologies. According to the announcement, it will feature “plenary sessions, panels, technical papers, and tutorials by international experts on smart grid applications.” Researchers and practitioners from around the world are also invited to submit papers for review and possible presentation at the ISGT Conference. More information about the ISGT Conference 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 October 31, 2012, the Washington Utilities and Transportation Commission (WUTC) denied the joint motion to dismiss from Pac-West Telecomm, Inc. and Level 3 Communications, LLC in a consolidated proceeding against Qwest. Pac-West and Level 3 had filed complaints against Qwest in 2005 alleging that it was violating the parties’ interconnection agreements (ICAs) and the FCC’s intercarrier compensation rules by refusing to pay reciprocal compensation for terminating “Virtual NXX” (VNXX) ISP-bound traffic originated by Qwest customers. In 2006, the WUTC held that Qwest was required to pay reciprocal compensation for such traffic, without regard to whether such calls were considered local or interexchange. Qwest appealed that decision to the United States District Court for the Western District of Washington, which remanded the case back to the WUTC in 2007 and directed the agency to classify VNXX ISP-bound traffic as either within or without a local calling area under the FCC’s analysis in the ISP Remand Order.
  
  Following the remand, the WUTC found that Pac-West and Level 3 are entitled to neither reciprocal compensation nor the rate established in the ISP Remand Order. It reasoned that the FCC’s rules address only compensation for traffic within a local calling area, and not interexchange traffic. The WUTC found that states retain authority under Section 251(g) of the Telecommunications Act of 1996 to apply access or toll charges to intrastate interexchange traffic. Further, the WUTC determined that the parties’ ICAs do not require Qwest to compensate Pac-West or Level 3 for VNXX traffic under either the FCC’s ISP-bound traffic rate or Section 251(b)(5) of the Act. Rather, the WUTC determined, the parties’ ICAs likely require the carriers to pay Qwest originating access charges for this traffic. In their joint motion to dismiss filed on June 1, 2012, Pac-West and Level 3 argued that the WUTC should dismiss the case due to the WUTC’s previous finding that VNXX ISP-bound traffic does not fall within the scope of the FCC’s ISP Remand Order, which, they asserted, “eliminated any jurisdictional nexus for further Commission action in this matter.” In denying the motion to dismiss, the WUTC stated that it would not reconsider its previous orders and was acting within its jurisdiction to respond to the court’s order on remand. Docket Nos. UT-053036 and UT-053039.

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

• Eligible Telecommunications Carriers (ETCs) that provide Lifeline service are required to recertify the eligibility of their base customers as of June 1, 2012 by December 31, 2012. Each ETC is then required to report the results to the FCC, the Universal Service Administrative Company, and the applicable state regulatory commission or Tribal government. The recertification process can take place in one of two ways: either through review of databases to confirm eligibility, if there are databases available; or by obtaining a signed certification from the subscriber confirming eligibility to receive Lifeline service. Each ETC must report its results on FCC Form 555 by January 31, 2013. FCC Form 555 has not yet been released. More information can be found in the Public Notice found here. (DA 12-1626).
• 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 November 1, 2012, after suspending the briefing schedule in late September, the U.S. Court of Appeals for the D.C. Circuit entered a revised schedule in the consolidated appeal from the FCC Open Internet Order. The Center for Democracy & Technology and a several legal scholars recently notified the court of their intent to file as amicus curiae in support of the Open Internet Rules.  The schedule is:
  
  

  November 15 – Brief for Amici Curiae Supporting FCC and United States
  December 6 – Joint Reply Brief for Verizon and MetroPCS
  December 6 – Individual Reply Brief for MetroPCS
  December 20 – Deferred Appendix
  January 3 – Final Briefs

  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 November 1, 2012, United States District Courts in Florida and Arizona granted the FTC’s applications for temporary restraining orders (TROs) against a host of companies alleged to have engaged in a fraudulent robocalling scheme in violation of the FTC’s Telemarketing Sales Rule and Trade Regulation Rule. The FTC alleges that five companies based in Arizona and Florida are responsible for making millions of illegal pre-recorded calls from “Rachel” and “Cardholder Services,” offering to lower the call recipient’s credit card rates and saving them thousands of dollars in finance charges in the process. These companies somehow persuaded some called parties to pay an up-front fee, at which point the companies, the FTC alleges, “do little or nothing to lower their credit card interest rates. The only thing that some companies do … is to initiate three-way calls with consumers’ credit card issuers and orally request a rate reduction, a request that consumers could make on their own and that invariably is denied.” The principal defendants do business as Treasure Your Success, Ambrosia Web Design, A+ Financial Center, The Green Savers, and Key One Solutions, LLC. In granting the TROs, the courts appointed receivers for the defendants and found that the FTC showed a substantial likelihood of success on the merits of its claims. The courts also ordered the defendants to appear on November 5, 2012, for a hearing on the FTC’s motions for preliminary injunctions that would continue to enjoin the challenged calls and related activities until each case’s conclusion. See, e.g., FTC v. The Green Savers, LLC, No. 12-cv-1588 (M.D. Fla.); FTC v. Ambrosia Web Design LLC, No. CV-12-2248 (D. Ariz.).

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

Upcoming Events

• The Federal Communications Bar Association (FCBA) will hold its annual Chairman’s Dinner on December 13, 2012, at the Washington Hilton, 1919 Connecticut Avenue, NW, in Washington, DC. A reception at 6:00 pm ET will be followed by dinner at 7:30 pm ET. To learn more or to purchase a ticket or a table, 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.