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 Open Internet Advisory Committee will meet on January 17, 2013, from 10:00 am to 12:00 pm Pacific in Paul Brest Hall-East, Stanford University. The meeting is open to the public and available via live webcast. The Public Notice of the meeting is available 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.

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 December 18, 2012, the FCC, together with public and private sector partners, released a new online tool called the “Smartphone Security Checker” to help consumers protect their mobile devices. It is described as a free online tool with a 10-step smartphone action plan to help consumers protect their mobile devices from smartphone-related cybersecurity threats. The FCC worked with smartphone security experts from the U.S. Department of Homeland Security, the Federal Trade Commission, the National Cyber Security Alliance, CTIA, Lookout, and other public and private sector partners to derive these security best practices. Consumers can access the “Checker” at www.fcc.gov/smartphone-security.
• At its Open Meeting earlier this month, the FCC adopted a Further Notice of Proposed Rulemaking that could clear the way for Americans to send text messages to 911 centers in emergency situations. The FNPRM proposes that all wireless carriers, as well as providers of certain Internet-based text messaging applications, should be required to enable their customers to send text messages to 911. The Commission seeks comment on whether a May 15, 2014 deadline is achievable, and whether it is feasible for the industry to provide consumers with “bounce back” texts by June 30, 2013, if text-to-911 is not yet available. The pleading cycle is bifurcated: Comments on automated “bounce back” messages are due 20 days after the FNPRM is published in the Federal Register, and Reply Comments are due 10 days thereafter. Comments on the remaining proposed rules are due 60 days after Federal Register publication, and Reply Comments are due 30 days thereafter. Filings should be submitted in PS Dockets 11-153 and 10-255. The FNPRM is available here.
• Petitions to deny the application of Softbank Corp. to acquire 70% of SprintNextel 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.

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

Federal Trade Commission (FTC) and Privacy Regulation

• On December 19, 2012, the FTC announced that it had adopted amendments to the Children’s Online Privacy Protection Act (COPPA) Rule to strengthen kids’ privacy protections and give parents greater control over the personal information that websites and online services may collect from children under 13. Among the changes to the COPPA Rule, the FTC expanded the list of personal information that cannot be collected by websites without parental notice and consent, including geolocation information, photographs, and videos. The amendments also extend the COPPA Rule to cover persistent identifiers that can recognize users over time and across different websites or online services, such as IP addresses and mobile device IDs. Perhaps the most controversial change, however, is that the revised COPPA Rule closes a loophole that allowed apps and websites that are directed toward children to permit third parties to collect personal information from children through plug-ins without parental notice and consent. Many in the industry are concerned that this new rule could be interpreted to include third-party plug-ins such as Facebook’s “like” and Google’s “+1” buttons. More information regarding the new COPPA Rules is available here.
• On December 14, 2012, the FTC issued orders to nine data brokerage companies requiring them to file Special Reports providing the FTC with information on how they collect and use consumer data. The Special Reports will contain the following: (i) the nature and sources of the data collected; (ii) how the data is used, maintained and disseminated; and (iii) the extent to which consumers are allowed to access and correct their information or to opt out of having their personal information sold. The FTC will use the Reports to prepare a study and set forth recommendations “on whether, and how, the data broker industry could improve its privacy practices.” 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 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 18, 2012, the Texas Public Utility Commission (TPUC) dismissed a complaint filed by several Texas rural local exchange carriers (RLECs) against Halo Wireless. The RLECs filed their petition for compulsory arbitration pursuant to 47 U.S.C. § 332 on December 22, 2011, demanding an interconnection agreement (ICA) for the exchange of wireless traffic with Halo and to receive interim intercarrier compensation. The RLECs also asserted that Halo was masking the nature of its traffic to make the traffic appear to be wireless traffic when it was in fact landline traffic routed through AT&T for delivery to the RLECs, and thus subject to the RLECs’ switched access tariffs. During the course of the proceeding, Halo declared Chapter 11 bankruptcy and sought a stay of the proceeding from the U.S. Bankruptcy Court for the Eastern District of Texas. That court ruled, however, that the federal bankruptcy code’s automatic stay provisions do not apply to state commission proceedings and remanded the RLECs’ petition back to the TPUC. After the remand, Halo declared Chapter 7 bankruptcy and began the liquidation process, mooting the RLECs’ request for a going-forward ICA. With respect to intercarrier compensation for previously exchanged traffic, an arbitration panel ruled in favor of the RLECs. The TPUC then requested briefing on whether it retained jurisdiction to decide the intercarrier compensation issue when the petition to arbitrate had become moot. In dismissing the complaint, the TPUC ruled that, because there is “no longer any live controversy regarding petitioners’ claim for an interconnection agreement,” the TPUC does not retain jurisdiction to issue a decision with respect to intercarrier compensation owed on previously exchanged traffic. Docket No. 40032.

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

• Comments on proposed changes to the FCC Form 499-A and Form 499-Q, along with accompanying instructions, for use in 2013 are due January 11, 2013. (DA 12-2010, WC Docket 06-122) A list of the proposed changes can be found here.
  
  A redline of the proposed changes to FCC Form 499-A can be found here, with the redline of its instructions found here.
  
  A redline of the proposed changes to FCC Form 499-Q can be found here.
  
  The proposed changes to the Form 499-Q instructions can be found here.
• 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 first quarter of 2013 is 16.1%. A copy of the Public Notice announcing the rate can be found here. (DA 12-2014)

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 19, 2012, the FCC explained to the Supreme Court that it deserves deference when it is reviewing its own authority to issue rules and orders. The case arises out of the FCC’s “shot-clock” rules which deal with how long municipalities have to act on tower-siting applications. The Supreme Court agreed to resolve whether “a court should apply Chevron to review an agency’s determination of its own jurisdiction.” The FCC argued that it should get Chevron deference when deciding the scope of its own powers, reasoning that an “agency’s interpretation of provisions defining the scope of its authority is based on an implied delegation by Congress, and can involve the same complex regulatory considerations and rest on the same competing policy concerns that govern any other exercise in statutory construction.” The FCC also asserted that applying the requested limit to Chevron deference “would be inadministrable in practice.” Verizon Wireless and AT&T, among others, submitted amicus briefs arguing that agencies should not receive deference on such questions. Verizon briefed the separation-of-powers argument: “Courts defer to an agency’s exercise of policymaking authority, but only if that authority has been properly delegated. Allowing agencies to decide in the first instance the limits of their policymaking power would improperly transfer legislative authority from Congress to the Executive, and override the Judiciary’s exclusive authority to construe legislative delegations, as well as its duty to police the constitutional boundaries between the branches.” The Court is scheduled to hear argument in the case on January 16, 2013. City of Arlington v. FCC, Nos. 11-1545, 11-1547 (S. Ct.).

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

Legislative Outlook

• On December 19, 2012, Senator John “Jay” Rockefeller IV, D-W.Va., Chair of the Senate Commerce Committee, released a statement praising the FTC’s new COPPA rule (see FTC and Privacy above). He summarized that, “(t)he new Rule puts all online companies on notice, no matter who they are, that they are required to comply with the law,” and noted that “(w)hether you are a Democrat or Republican, a consumer or business, protecting the privacy of children should be an absolute priority. This should be a universal issue.” To read the full statement, click here.

Please contact Stephanie Joyce (contact information below) for further information.

Upcoming Events

• The next Broadband Breakfast Club will be held January 15, 2013, from 8:00 to 10:00 am Eastern at Clyde’s Restaurant, 707 7th Street, NW (Chinatown/Gallery Place Metro). The title is “The President-Elect's and Congress’ New Broadband Agenda”. To learn more or to register, 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.