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 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

• On November 29, 2012, the FCC released a Declaratory Ruling in response to a petition from SoundBite Communications holding that a one-time text message confirming a consumer’s request to opt out of receiving further text messages does not violate the Telephone Consumer Protection Act (TCPA) or FCC rules. Two conditions must be met: the text must 1) merely confirm the consumer’s opt-out request; and 2) contain no additional promotional material. The FCC reasoned that an opt-out request, after a consumer has previously given consent to receive text messages, includes implied consent to receive a confirmation that the opt-out has been processed. In addition, the FCC stated that if the confirmatory text is sent within five minutes, it will be presumed to fall within the consumer’s prior express consent. If it takes more than five minutes to send the confirmatory text, however, the presumption will no longer apply, and the sender may be required to explain the delay. The full order 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!

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

• In a special commentary prepared for the 2012 mHealth Summit (see Mobile Market above), members of Arent Fox examine the key legal and regulatory issues on the mHealth landscape for the coming year. The full article is available here.
• On November 29, 2012, Energy Secretary Steven Chu announced that the Department of Energy’s Advanced Research Projects Agency – Energy (ARPA-E) has selected 66 cutting-edge research projects to receive a total of $130 million in funding through its “OPEN 2012” program. Many of the projects have a smart grid focus. The purpose of OPEN 2012 is to seek out transformational, breakthrough technologies that show fundamental technical promise but are too early for private-sector investment. These projects have the potential to produce game-changing breakthroughs in energy technology, form the foundation for entirely new industries, and have large commercial impacts. The selected projects encompass 11 technology areas in 24 states, and support the Obama Administration’s “all-of-the-above” approach to resolving the nation’s energy challenges. More information regarding the program and the projects selected 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 26, 2012, the Washington Utilities and Transportation Commission (WUTC) postponed an evidentiary hearing for the consolidated complaints filed by Pac-West Telecomm, Inc. and Level 3 Communications, LLC against Qwest. This case was initiated in 2005, with Pac-West and Level 3 alleging that Qwest 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. The evidentiary hearing, which was originally slated to begin on December 5, 2012, has now been moved to February 6-7, 2013.
  
  The WUTC already has held that Pac-West and Level 3 are entitled to neither reciprocal compensation nor the rate established in the FCC’s ISP Remand Order. It reasoned that the FCC’s rules address only compensation for traffic within a local calling area, and not 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 ICAs likely require the carriers to pay Qwest originating access charges for this traffic. The February 2013 evidentiary hearing will be used to determine the volume and nature of the VNXX traffic exchanged between the parties during relevant time periods, so that the WUTC can determine what compensation, if any, is due for the VNXX traffic. 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

• 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, such as 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

• EXTENSION GRANTED: The FCC has granted the joint motion for extension filed by NAB and CTIA in the Incentive Auctions proceeding. Comments now are due January 25, 2013, and Reply Comments are due March 12, 2013. To read the order granting the extension, click here. To read the Notice of Proposed Rulemaking seeking comments, click here. GN Docket No. 12-268.
• Reply Comments in the FCC Spectrum Holdings proceeding are 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 21, 2012, the U.S. District Court for the Northern District of California preliminarily approved a $14 million settlement of a class action suit in which landowners claimed that Qwest, Sprint, Level 3, and WilTel installed fiber-optic lines on their property without asking for their permission or providing compensation. This settlement is the latest following a 2010 nationwide mediation that established a framework for resolving similar claims throughout the country, with the framework requiring the carriers to pay affected landowners in each state an agreed-upon amount per foot of fiber-optic line in exchange for an easement allowing them to continue operating the installed lines on their property. According to the settlement, landowners would receive approximately $8.3 million of the total value, while the remaining $5.8 million would cover administrative expenses and plaintiffs’ attorneys’ fees. The fairness hearing is scheduled to be held in June 2013. Smith v. Qwest Commc’ns Co., No. 11-02599 (N.D. Cal.).

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 “Keeping the New Broadband Spectrum Law on Track” on December 12, 2012. Time and location TBA. Chairman Genachowski and all four Commissioners are expected to appear and testify. To see the notice, click here.
• On November 28, 2012, Senator John “Jay” Rockefeller IV, D-W.Va., Chair of the Senate Commerce Committee released a statement on the News Corp. hacking scandal, stating that, “I look forward to reading Lord Justice Leveson’s report on media practices in the United Kingdom. While I understand that the main goal of this report is to make policy recommendations, the core of the Inquiry remains the illegal and unethical practices of newspapers owned by the News Corporation. I remain deeply concerned that these companies may have violated U.S. laws and injured U.S. citizens. I hope that Lord Leveson’s new report and other ongoing investigations will continue to clear the air and hold the companies accountable for their deplorable conduct.” That press release 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.