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

• On November 7, 2012, FCC Chairman Julius Genachowski issued a statement highlighting AT&T’s recent promise to invest $14 Billion in its wireline and wireless broadband networks, calling it “proof positive that the climate for investment and innovation in the U.S. communications sector is healthy.” He also noted that AT&T has filed a petition “to modernize [FCC] rules for the evolving communications market.” The full statement 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

• On November 6, 2012, the FCC announced that AT&T will pay $700,000 under a Consent Decree to terminate an Enforcement Bureau investigation into allegations that AT&T switched subscribers to monthly wireless data plans even though they had been told they could keep their pay-as-you-go options. “Today’s action sends a clear signal that wireless carriers can’t wrongfully charge consumers,’’ said Chairman Genachowski. AT&T agreed to refund customers the excess fees, which totaled $25 to $30 a month. The Consent Decree also requires AT&T to provide a bill-page notice to affected customers, to offer refunds to those that had not already received them, and to give affected customers the option to return to a pay-per-use data plan. The Consent Decree 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

• 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

• According to a new report released by the Pew Research Center’s Internet & American Life Project, 31% of all cell phone users have used their phone to look for health information, a figure that has nearly doubled in the past two years. On average, smartphone users were more likely to use their mobile device to obtain health information, with 52% of owners reporting that they had gathered health information on their phones, compared with 6% of non-smartphone owners. The survey also found that 9% of cell phone owners say they receive text updates and alerts about health or medical issues. Get the full report 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, 2012, 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 November 7, 2012, the Kansas Corporation Commission (KCC) ordered all rural local exchange carriers (RLECs) in the state to file revised intrastate switched access tariffs reflecting rate reductions required by the FCC Intercarrier Compensation/Universal Service Reform Order released November 18, 2011 (FCC 11-161). The order caps intrastate switched access rates and requires LECs to transition their intrastate terminating switched access rates to parity with their interstate rates in two phases, the last of which will be July 2013, if the intrastate rates are higher. Kansas law requires RLECs to adjust their intrastate access rates on March 1 of each odd-numbered year to match their interstate access rates. The KCC has found that FCC 11-161 conflicts with that law, “because RLECs will not be able to increase intrastate rates to parity for terminating access.” Thus, pursuant to the KCC’s order, RLECs will be allowed to reduce or increase intrastate originating switched access rates, but only reduce terminating switched access rates in order to achieve rate parity. RLECs also now have additional time, until July 1, 2013, to file revised tariffs. Docket No. 13-GIMT-004-GIT.

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

• Due to the impact of Hurricane Sandy, the Universal Service Administrative Company (USAC) has extended the filing deadlines to January 28, 2013, for FCC Form 486, the Receipt of Service Confirmation Form for the Schools and Libraries fund, for Funding Year 2011 recurring service invoices. This is the same deadline for non-recurring services, which means all invoices for Funding Year 2011 now are due at the same time.
  
  In addition, USAC announced that the FCC Form 486 for Funding Year 2012 will also be due on January 28, 2013.
  
  More information regarding these filings can be found here.
• 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

• Comments on the FCC Notice of Proposed Rulemaking in the Spectrum Holdings proceeding are due November 28, 2012, with Reply Comments due January 7, 2013. To read the NPRM, click here.

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

In the Courts

• On November 5, 2012, the U.S. District Court for the Southern District of California granted a motion to compel arbitration in a Telephone Consumer Protection Act (TCPA) lawsuit brought against the national grocer Kroger and the Royal Bank of Scotland Group (RBS). In 2007, the plaintiff applied for and was issued a Kroger Personal Finance credit card underwritten by RBS. He then used the card to make a $10,000 balance transfer. In 2009, his account became delinquent. Thereafter, plaintiff allegedly received 22 debt collection-related calls to his mobile phone, and so he filed a federal TCPA suit. The credit card agreement allowed either party to seek arbitration of any claim “under or related to any Account you have with the Bank.” The court granted the motion to compel arbitration, because the man alleges that the calls were debt collection-oriented and thus the claim falls within the arbitration clause. In reaching that conclusion, the court distinguished its recent opinion in another TCPA/arbitration case, In re Jiffy Lube, Text Spam Litigation. There, Jiffy Lube allegedly sent unwanted text messages offering discount services to customers who had previously given Jiffy Lube their phone numbers when purchasing an oil change. The S.D. Cal. found Jiffy Lube’s arbitration clause “incredibly broad,” because it “purports to apply to ‘any and all disputes’ between [the parties], and is not limited to disputes arising from or related to the transaction or contract at issue.” The court concluded that “a suit ... regarding a tort action arising from a completely separate incident could not be forced into arbitration-such a clause would clearly be unconscionable.” Here, the court could not find the arbitration clause unconscionable. The plaintiff now must pursue the TCPA claim in arbitration, and the federal case has been dismissed. McNamara v. Royal Bank of Scotland Group, PLC, No. 11-cv-2137-L (WVG) (S.D. Cal.).

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

Legislative Outlook

• On November 8, 2012, Rep. Fred Upton, R-Mich., Chair of the House Commerce Committee, also released a statement praising AT&T’s intention to invest $14 Billion in broadband networks. He stated that “AT&T should be commended for increasing its already large commitment to broadband expansion, especially in this fiscal environment. Private sector investment like this must be encouraged.” The full statement is available here.

Please contact Stephanie Joyce (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.