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.

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 Final Agenda for the next FCC Open Meeting to be held November 30, 2012, contains the same item previously noticed: a Fifth Order on Reconsideration and Sixth Report and Order on low-power radio licensing. To read the Final Agenda, click here.
• The FCC has released the Tentative Agenda for its next Open Meeting to be held December 12, 2012, at 1:00 pm Eastern. It contains three items: a Notice of Proposed Rulemaking regarding spectrum sharing for the 3.5 GHz band; a Report and Order and NPRM on developing Next Generation-911 services like text-to-911; and a Report and Order on employing Universal Service funds for expanding access to broadband for healthcare providers. To read the Tentative Agenda, 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

• 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!

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

Federal Trade Commission (FTC) and Privacy Regulation

• 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.
• 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.

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 Department of Energy has announced the creation of a new Smart Grid Customer Engagement Working Group to develop a model of industry best practices for smart grid customer engagement. The Working Group will become a resource for utilities rolling out smart grid programs in the future. It is a product of discussions with electric utilities over the past year and a half to discuss the most compelling smart grid topics facing the industry. Recognizing that the overall success of the smart grid depends on whether customers will take a more proactive role in managing their energy use, the Working Group will focus on smart grid customer education and engagement as well as on how utilities can effectively communicate the deployment and benefits of Advanced Metering Infrastructure (AMI). The first meeting will be November 29, 2012, in Washington, D.C. at the Marriot Metro Center. More information is available here.
• 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 16, 2012, AT&T Corp. and TCG Omaha filed a reply in support of their complaint against the proposed access tariff of YMax Communications Corp. that was filed with the Iowa Utilities Board (IUB) on July 12, 2012. AT&T, which has filed similar complaints against YMax across the country, including in Missouri, New Mexico, Kentucky, Alabama, West Virginia, Maryland and Ohio, filed its challenge to the proposed Iowa tariff on August 28, 2012, alleging that it would allow YMax to charge interexchange carriers for access functions it does not provide. On October 19, 2012, the IUB docketed the tariff for investigation and directed YMax to file a response to AT&T’s complaint, and YMax filed that response October 26, 2012. In its reply, AT&T argues that YMax failed to address the specific allegations in AT&T’s complaint, and noted that YMax has “voluntarily withdrawn similar tariff provisions in numerous states and … a similar tariff has been rejected as a matter of law by an administrative law judge in Maryland.” AT&T stated that it intends to move for summary judgment and requested that the IUB enter a procedural schedule establishing dates for discovery, pre-filed testimony, and a hearing. Docket No. TF-2012-0550.

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 Wireline Competition Bureau has released a Public Notice providing guidance to schools that receive E-Rate funding on how to implement the Protecting Children in the 21st Century Act (the Act) (47 U.S.C. Sections 254(h)(5), 254(h)(6) and 254(l)). Under the Act, schools that receive E-Rate Funding are required to certify that their Internet safety policies include educating students about appropriate online behavior, including cyberbullying awareness and proper use of social networking websites. A copy of the Public Notice can be found here. (DA-12-1836)
• Due to the impact of Hurricane Sandy, the Universal Service Administrative Company (USAC) has extended the filing deadlines for FCC Form 486, the Receipt of Service Confirmation Form for the Schools and Libraries fund, for Funding Year 2011 recurring services invoice submissions until January 28, 2013. 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 16, 2012, the U.S. District Court for the Northern District of New York denied a motion for preliminary injunction filed by TVC Albany, a local and long-distance phone company, against two of its business customers, American Energy Care and Best Cleaners. As part of a broader suit seeking to collect unpaid long-distance charges, TVC asked the court to enjoin the defendants from “disparaging or defaming plaintiff or engaging in publication of false and malicious information to the public or the press regarding plaintiff.” The suit arose when anomalous amounts of long-distance traffic originated from or through the defendants’ businesses, resulting in a $200,000 monthly bill to American Energy and a $150,000 bill to Best Cleaners. These defendants claimed – first privately and then publicly – that TVC’s system was hacked, and that TVC should have relieved them of the charges. In an “Open Letter” to the Albany business community, they stated that “it seems reasonably clear that TVC lacked the detection capabilities to identify this type of fraud, which allowed it to continue to both their customers and non-customers lines,” and that “other telecommunications vendors in the area employ the necessary fraud detection capabilities to protect our community from these types of events, and when such fraud does occur, these vendors have relieved the customers from any responsibility.” The court first noted that TVC’s disparagement claim faces a high hurdle on constitutional grounds: a “request for a prior restraint of speech and publication is the ‘least tolerable infringement’ on First Amendment rights and subject to ‘a heavy presumption against its constitutional validity.’” The court then denied TVC’s request for injunctive relief, because TVC failed to prove the most important element for injunctive relief – irreparable harm. Although TVC submitted declarations indicating that some unidentified customers had called to ask whether TVC had adequate fraud-prevention systems in place and that it fears a loss of business and goodwill, the court held that TVC “failed to demonstrate that it has sustained actual injury or that injury is imminent. Plaintiff offers only broad allegations concerning its potential loss of reputation and good will.” The court denied the motion, but referred the matter to a magistrate judge to establish an expedited discovery schedule. TVC Albany, Inc. v. Am. Energy Care, Inc., No. 12-cv-1471 (N.D.N.Y.).

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

Legislative Outlook

• The House Communications Subcommittee will hold a hearing titled “The Role of Receivers in a Spectrum Scarce World” on November 29, 2012, at 10:00 am Eastern in 2322 Rayburn Office Building. To see the Hearing Notice, click 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.