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

• The FCC has released the Final Agenda for its next Open Meeting to be held December 12, 2012, at 1:00 pm Eastern. It contains the same three items previously noticed, plus two additional items. The initial three items are: 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. The newly added items are a Report and Order adopting service rules for Advanced Wireless Services in the 2 GHz band, and a Notice of Proposed Rulemaking to establish competitive bidding for the award of initial licenses in the 1915-1920 MHz and 1995-2000 MHz bands. To read the Final Agenda, click here.
• The next two FCC Open Meetings will be held January 31, 2013, at 10:30 am Eastern, and February 20, 2013, at 10:30 am Eastern.
• On December 19, 2013, the FCC will honor innovation in technologies that increase the accessibility to communications for those with disabilities. Eight projects will be recognized during the ceremony at which Chairman Julius Genachowski will present the awards. This effort is part of the FCC’s Accessibility and Innovation Initiative that was established in the 2010 National Broadband Plan. To read more, 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 FCC has established a pleading cycle with regard to the plan of SoftBank Corp., a Japanese holding company, to buy a 70% stake in Sprint Nextel Corp. for $20.1 billion. The companies seek authorization to transfer various licenses and facilities, as well as a declaratory ruling that the transaction is consistent with the public interest under the 25% foreign-ownership benchmarks in the Communications Act. By virtue of Softbank’s 70% interest in Sprint, SoftBank would indirectly acquire Sprint’s interest in Clearwire Corporation, a wireless broadband internet provider. Petitions to deny the merger are due January 4, 2013, oppositions to the petitions to deny are due January 22, 2013, and replies are due February 1, 2013. Those filing petitions to deny become parties to the proceeding and may participate fully in the proceeding, including seeking access to any confidential information filed under a protective order, seeking reconsideration of decisions, and filing appeals of a final decision to the courts. Filings should be made in IB Docket No. 12-343. The Public Notice is available here.
• Arent Fox was recognized as a leader in the emerging mHealth market this past week, being the only law firm named a Strategic Affiliate for the 2012 mHealth Summit held at the Gaylord Hotel in National Harbor from December 3rd through 5th. Combining strengths in the Health Care, Communications, Technology and Mobile, FDA, Government Relations, IP and Corporate law practice areas, a team of 11 attorneys, including several from our Telecom Group, participated in the Summit which drew over 5,000 attendees.
  
  Jamie Ravitz, a Partner in our FDA Group, was a speaker for the session titled “Policy and Regulatory Environments: A Mobile Perspective.” The session focused on how various agencies that share jurisdiction over mHealth devices are exercising their authority and what regulatory challenges are confronting the industry. The panelists agreed that agencies must do a better job in communicating with entrepreneurs in “plain English” in order to avoid stymieing innovation. The panel also discussed a new piece of legislation, HR 6626, the Healthcare Innovation and Marketplace Technologies Act (HIMTA). Introduced by Rep. Michael Honda, D-Cal., the bill is aimed at providing more certainty to this emerging industry. It would establish an “Office of Mobile Health” within FDA to provide recommendations on mobile health app issues.
  
  The Summit also included “office hours” for mHealth start-up companies during which Arent Fox attorneys provided insight into the various regulations that apply to mHealth services.

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.

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 National Institute of Standards and Technology (NIST) has announced federal funding to enable entities to participate in a program aimed at the harmonization and advancement of the interoperability and security of smart grid systems. The funded entities will work with NIST in its standards coordination activities. The funding will be approximately $750,000 for the first partial year of 2013 and can continue in two subsequent fiscal years at up to $1,000,000 per year, subject to availability of funds, for a total of up to $2,750,000. All applications must be received no later than 5:00 PM Eastern Time on January 3, 2013, and awards are expected to be made in the January to March 2013 time frame. 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, 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 December 4, 2012, the Colorado Public Utilities Commission (CPUC) issued a recommended order that would permit Windstream Corp. to disconnect service to MJ Communications, Inc., d/b/a Telenet Telephone for failure to pay required interconnection charges. In its investigation of Telenet, the CPUC found that although it provides telephone service to rural fire departments, a large healthcare provider, a federal government agency, and a residential neighborhood, it has not obtained a certificate of public convenience and necessity to provide retail telephone service in the state. In its recommended order, the CPUC stated that it is “clear that Telenet is no longer willing or able to provide reliable telecommunications services to its customers,” and directed Telenet to notify its customers that they will have their service disconnected. The CPUC also ordered its Staff to prepare a notice of the pending disconnection, expressing doubt that Telenet will comply with the recommended order. Windstream may disconnect service to Telenet on January 4, 2013. Docket No. 12M-638T.

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 FCC announced that outage reporting requirements will be applied to interconnected Voice over Internet Protocol (VoIP) providers effective December 16, 2012, pursuant to its VoIP Outage Order adopted February 15, 2012 (FCC 12-22). In the VoIP Outage Order, the FCC stated that all interconnected VoIP providers must electronically notify the FCC within 4 hours of discovering any outage of 30 minutes or more that potentially affects any 911 facility. In addition, the VoIP provider must notify the official designated as the contact person for that 911 facility and provide any information that may be helpful to mitigate the effects of the outage. If the VoIP provider experiences an outage of 30 minutes or more that does not impact a 911 facility, but rather either (a) potentially affects at least 900,000 user minutes of interconnected VoIP service and results in complete loss of service, or (b) potentially affects any special offices and facilities, the VoIP provider must notify the FCC electronically within 24 hours.
  
  In either instance, VoIP providers that experience an outage must follow up on the notification by submitting a Final Communications Outage Report within 30 days.
  
  More information can be found in the FCC’s Public Notice announcing the effective date of the rules, available here.
  
  The VoIP Outage Order can be found here.
• 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

• Comments in the Incentive Auctions proceeding are due January 25, 2013, and Reply Comments are due March 12, 2013. To read the order setting these deadlines, 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 December 4, 2012, the U.S. Court of Appeals for the D.C. Circuit affirmed the FCC’s 2011 data roaming rules against a challenge from Verizon. The rules require Verizon and other wireless carriers to execute data roaming agreements with other carriers on “commercially reasonable” terms. The court rejected Verizon’s argument that the FCC lacked authority to issue the rules, finding that Title III of the Communications Act provides the requisite authority. It also rejected Verizon’s argument that FCC did not deserve Chevron deference for the FCC’s interpretation of its own authority. (This issue will be presented to the Supreme Court next month in City of Arlington v. FCC.) Finally, the court disagreed with Verizon that the FCC’s rules treat Verizon and other wireless carriers as common carriers under Title II of the Act for purposes of mobile data services and thus do not exceed the FCC’s authority. Unlike the highly defined parameters applicable to common carriage, the court found that “the ‘commercially reasonable’ standard largely leaves the terms of that agreement up for negotiation.” Thus, the court left open the possibility that Verizon could still mount an “as applied” challenge if the FCC applies the rules in a way that treats Verizon as a common carrier. Cellco Partnership v. FCC, No. 11-1135 (D.C. Cir.).

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

Legislative Outlook

• TIME AND LOCATION ANNOUNCED: The House Communications Subcommittee will hold a hearing titled “Keeping the New Broadband Spectrum Law on Track” on December 12, 2012, at 10:00 am Eastern in 2123 Rayburn House Office Building. Chairman Genachowski and all four Commissioners are expected to appear and testify. To see the 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.