Federal Communications Commission Announcements

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					                                                                                September 14, 2009


Welcome to this week's 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.


Federal Communications Commission Announcements


      FCC Chairman Julius Genachowski appointed Paula Michele Ellison as Chief of the
      Enforcement Bureau on September 9, 2009. Ms. Ellison will take the post on September
      28, 2009. She has been Deputy General Counsel for 12 years.


      The next FCC Open Meeting is scheduled for Tuesday, September 29, 2009. The only
      item slated is a presentation on the status of the FCC's National Broadband Plan which
      must be delivered to Congress by February 17, 2010.


Developments in Intercarrier Compensation


      The Iowa Utilities Board is considering a Motion for Stay of Proceedings filed by Great
      Lakes Communication Corp. and Superior Telephone Cooperative, clients of the Arent
      Fox Telecommunications Group, in Qwest's complaint case against several LECs
      regarding terminating access charges assessed on conference and chat line calls. The
      Motion requests that the Board stay the release of the order it voted on August 14,
      2009, pending the Federal Communication Commission's consideration of their Petition
      for Declaratory Ruling and Contingent Preemption. Comments on the Petition are due
      September 21, 2009. Please contact Ross Buntrock, Jon Canis, Mike Hazzard, or
      Stephanie Joyce (contact information below) for further information regarding these
      proceedings or for assistance with filing comments.


      On September 8, 2009, Verizon filed an ex parte letter with the FCC to urge the
      Commission to include the ongoing intercarrier compensation reform proceedings (CC
      Docket 01-92) with the Commission's National Broadband Plan for Our Future docket
      (GN Docket 09-51). Verizon stated that the existing regime of intercarrier
      compensation generates inefficient arbitrage opportunities and is in need of
      fundamental reform. Verizon also urged the commission to reform the universal service
      system, arguing that the current revenue-based system was rooted in a wireline world
      that is no longer a reality.


      On September 9, 2009, the US Court of Appeals for the DC Circuit ordered the
      Commission, on its own motion, to file a status report regarding Featuregroup IP's
      Motion for Reconsideration of the denial of its Petition for Forbearance from section 251
      (g) of the Communications Act and related portions of the Commission's rules.
      Featuregroup IP had requested that the Commission forbear from applying access
      charges to voice-embedded Internet communications. The Commission, however, found
      that such communications fell under the pre-1996 Act compensation obligations. By the
      Court's order, the Commission is required to file a status report of the reconsideration
      proceedings by October 8, 2009 and at 90-day intervals until the proceedings are
      completed. Feature Group IP Petition West LLC, et al., v. FCC, No. 09-1070.


Defense/Homeland Security Communications


      The FCC has released a comprehensive report on the agency's ability to respond to
      natural disasters, terrorist attacks, public health emergencies, and other large-scale
      events. The report, titled FCC’s Preparedness for a Major Public Emergency,
      was prepared by the Public Safety and Homeland Security Bureau in coordination with
      the Department of Homeland Security (DHS), Federal Emergency Management Agency
      (FEMA), and Department of Health and Human Services (HHS). The report identifies a
      number of areas in which the FCC can improve its emergency planning and response:
      education and training, outreach and collaboration, emergency operations and alerts,
      and network.


      The FCC has appointed Chairman Julius Genachowski as Defense Commissioner for the
      agency. The Defense Commissioner “directs the homeland security, national security
      and emergency preparedness, and defense activities of the Commission.” The duties
      and responsibilities of the Defense Commissioner include: (1) representing the
      Commission in interagency matters pertaining to public safety, homeland security,
      national security, emergency preparedness, disaster management, and defense and
      related matters, including matters pertaining to continuity of the essential functions of
      the Commission under emergency conditions; (2) serving as the principal point of
      contact for the Commission on all matters pertaining to the Department of Homeland
      Security; (3) serving as a member of the Joint Telecommunications Resources Board
      (JTRB); (4) developing emergency programs covering service provision by wireless and
      wireline telecommunications carriers and broadcast, cable, and satellite facilities, as
      well as radio frequency assignment, investigation, and enforcement; and (5) assuming
      the duties of the Commission under certain emergencies. Commissioner Michael J.
      Copps was appointed Alternate Defense Commissioner.


      The FCC has granted to L-3 Communications SafeView, Inc. an extension until August
      3, 2010, of a prior waiver to permit the marketing and operation of the company's
      ProVision 100 imaging device under Part 15 of the Commission’s rules. The ProVision
      100 uses imaging technology to detect weapons or contraband carried on a person,
      including non-metallic objects or explosives.


Please contact Jeffrey Rummel (contact information below) for further information on these
latest developments.


Stimulus This Week


      The National Telecommunications and Information Administration (NTIA) and the
      Department of Agriculture's Rural Utilities Service (RUS) have launched an on-line
      database through their joint Web site www.broadbandusa.gov. The database allows the
      public to review a summary of each project that applied for funding during the first
      round of applications by state, applicant, the type of project, source of funding or
     keyword. Applicants were given the option of redacting proprietary information from
     their executive summaries prior to the inclusion in the database and have until
     September 14, 2009 to provide NTIA/RUS with the redacted versions. In these few
     instances, the database will indicate that the information relating to the project is
     unavailable at this time.


New Wireless Notice of Inquiry


     The FCC has launched a proceeding on innovation occurring in the wireless industry
     with a focus on emerging applications and services within the mobile wireless market.
     Among other aspects, the FCC has asked for comment on the state of openness of
     wireless networks for application development and deployment, and the economic
     arrangements associated with such applications. Comments are due on September 30,
     2009, and reply comments are due on October 15, 2009 (Docket No. GN 09-157).
     Please contact Alan Fishel, Michael Hazzard, or Jeffrey Rummel (contact
     information below) for further information regarding this proceeding or for assistance
     with filing comments.


Appellate Courts


     On Thursday, September 17, 2009, the US Court of Appeals for the Ninth Circuit will
     hear argument on Cingular Wireless's appeal from a decision denying its motion to
     compel arbitration of a customer's complaint for breach of contract and violations of
     California consumer protection law. The consumer alleges that he was induced to renew
     his service contract with Cingular based on advertising that Cingular's service had the
     fewest dropped calls, a premise the customer disputes. The US District Court for the
     Northern District of California denied AT&T's motion to compel arbitration on the ground
     that the provision was both procedurally and substantively unconscionable under
     California law, and thus not binding under the Federal Arbitration Act. Kaltwasser v.
     Cingular Wireless, LLC, No. 08-15962 (9th Cir.)


Compliance Notes


     The FCC has announced that communications providers have until 11:59 p.m. on
     Tuesday, September 22, 2009, to pay their FCC Annual Fee. Payments received after
     that date are subject to a 25 percent late payment penalty. For telecommunications
     providers, the fee is $0.00342 per assessable dollar. For CMRS providers, the fee is
     $0.17 per unit. The Commission will use a company's 2009 Form 499A, which reports
     2008 revenues, in order to determine the amount to be assessed. Companies are
     required to log into the Commission's Fee Filer system in order to obtain a copy of the
     invoice and may select the method of payment at that time. Please note that the FCC
     will not be sending out reminders via hard copy mail. (FCC 09-62, DA 09-1837, DA 09-
     1839 and DA 09-1841)


Broadband News


     FCC Chairman Julius Genachowski posted what promises to be the first of many video
     blogs. In it, he discusses the importance of broadband deployment. The video is
     available at http://blog.broadband.gov.


     The Federal Trade Commission filed comments on September 4, 2009, with the FCC
     regarding the FTC's role in developing the national Broadband Plan. The FTC cited its
     own consumer protection work as relevant to encouraging competition as part of the
     plan and ensuring broadband providers safeguard consumer privacy. The FTC pledged
     to continue devoting resources to law enforcement and consumer education “to protect
     consumers and encourage competition in these markets.” Docket No. GN 09-51.


     The Communications Workers of America recently released their annual Speed Matters
     survey, which compares US broadband speeds with the rest of the world and compares
     each state's speeds. This year, the U.S. ranked 28th in the world, with South Korea
     holding the top spot, followed by Japan, Sweden, and the Netherlands. At the current
     rate of improvement in the United States, it would take 15 years to match the
     speeds South Korea has today. Puerto Rico, the Virgin Islands, Montana, and Alaska
     were among the slowest states and territories, while Delaware, Rhode Island, and New
     Jersey were the fastest. The entire Speed Matters report may be read by clicking
     here.


     On Tuesday, September 8, 2009, the American Consumer Institute held a seminar on
     Capitol Hill on the future of broadband. Timothy Horan, a telecommunications analyst
     with Oppenheimer & Co. expressed concerns that the regulatory ideas being proposed
     were already outdated given the fast-changing nature of the technology involved.
     Debbie Goldman of the Communications Workers of America identified the overall
     benefits on the economy that continued investment in broadband would have, to the
     tune of 97,500 jobs for every $5 billion invested in broadband. Despite the
     international comparisons invited by the “Speed Matters” report identified above, Hal
     Singer, president of analytical research firm Empiris, LLC, did not believe that the U.S.
     should compare its broadband speeds to other countries.


     The FCC is taking comments on October 2, 2009, pursuant to a provision in the
     American Recovery and Reinvestment Act of 2009, on technologies that can mechanize
     the utilization of energy, called Smart Grid technology. DA 09-2017; GN Docket Nos.
     09-47, et al. Please contact Ross Buntrock, Jon Canis, Alan Fishel, Mike Hazzard,
     or Jeffrey Rummel (contact information below) for further information or for
     assistance in filing comments.


     The FCC has scheduled two new Broadband Workshops to be held in the Commission
     Meeting Room at 445 12th Street, SW, in Washington, DC. On September 30, at 9:00
     a.m. EST, will be a workshop on Cybersecurity, and on October 9, at 10:00 a.m. EST,
     will be a workshop on the economics of broadband.


Legislative Outlook


     During the hearing conducted by the House Communications Subcommittee on
     September 10, 2009, titled Oversight of the American Recovery and
     Reinvestment Act: Broadband, Part 2, Larry Strickling, NTIA Assistant Secretary for
     Communications, testified that NTIA will award $1.6 billion in the first round of grants
       for which it has received $38 billion worth of applications. Recipients will be chosen
       according to a scoring system that evaluates several criteria including “the proposed
       project's purpose, benefits, viability, budget, and sustainability.” Mr. Strickling also
       stated that NTIA is considering whether to make only two rounds of funding rather than
       three as was previously discussed. Jonathan Adelstein, former FCC Commissioner and
       now the Administrator of the Rural Utilities Service, testified that RUS will grant an
       additional $2.4 billion from its allotted ARRA funds, and noted that disbursement
       decisions are “not a static process” and that the agency's criteria, such as the
       definitions of “rural" and “remote” areas, may evolve over time. Subcommittee Chair
       Rick Boucher, R -Va., noted that the ARRA “presents an historic opportunity for
       increasing the availability of broadband,” but expressed concerns that funds must be
       allocated properly to rural areas in order to ensure that “truly isolated communities” are
       covered.


       The House Commerce Committee will hold a hearing regarding FCC oversight on
       September 17, 2009, at 10:00 a.m. EST, in 2123 Rayburn House Office Building.


       The Senate Homeland Security Committee will hold a hearing at 10:00 a.m. EST today,
       September 14, in 342 Dirksen Senate Office Building, on protecting against cyber
       attacks. Witnesses scheduled to appear include Robert Carr, CEO of Heartland Payment
       Systems, and Philip Reitinger, Deputy Undersecretary of the National Protection and
       Programs Directorate at the Department of Homeland Security.


In The News


       Arent Fox's Stephanie Joyce was interviewed by Communications Daily for the article
       “Prison Telcos Say Discount Inmate Calling Poses Security Risks.” In the article,
       Stephanie discusses a petition filed with the FCC by Arent Fox client Securus
       Technologies urging the Commission to ban call diversion schemes that reduce the cost
       of prisoner phone calls. The complete article may be found on Page 5 of the September
       2 edition of Communications Daily (Vol. 29, No. 169)*, which can be accessed by
       clicking here.


       Arent Fox's Michael Hazzard was interviewed by Communications Daily (Vol 29, No.
       168) for an article on HyperCube's August 31 petition to the California Public Utilities
       Commission in which the networking company updates its arguments for the
       Commission to require Level 3 which sells toll-free 8YY services, to put money in
       escrow for tariffed switched access services it gets from Hypercube. The complete
       article may be found on page 8 of the September 1 edition of Communications Daily
       (Vol. 29, No. 168)*, which can be accessed by clicking here.

*Reproduced by permission of Warren Communications News, Inc., 800-771-9202, www.warren-news.com


Upcoming Events


       Comments on the FCC Broadband Workshops held August 6-20, 2009, are due
       tomorrow, September 15, 2009.
      Annual Fees to the FCC are due September 22, 2009.


      On September 24, 2009 at the Fall 2009 Channel Partners Conference and Expo in
      Miami Beach, Florida Ross Buntrock and Mike Hazzard will present “Bullet Proofing
      Your Business,” an educational program for agents, carriers, integrators, enterprises,
      MVNOs, consultants or dealers buying or selling telecommunications-related products
      and services. For more information about this event, please click here.


      The FCC's next Open Meeting will be Tuesday, September 29, 2009.


      The FCBA will hold its Fall Reception to welcome the FCC Commissioners on the evening
      of September 30, 2009, at The Newseum, 555 Pennsylvania Ave, NW, Washington, DC.


      On November 3, 2009, Jeffrey Rummel will speak on FCC licensing requirements at
      the Annual Symposium for the Antenna Measurement Techniques Association (AMTA) in
      Salt Lake City, Utah. Jeff is co-chair of AMTA's Committee on FCC Compliance and
      Licensing, and has spoken before the organization at several prior events. Attendees
      will include defense contractors and antenna and telecom manufacturers from around
      the world.


For further information, please contact any of our attorneys in the Arent Fox
Telecommunications Group, including:


Ross A. Buntrock
buntrock.ross@arentfox.com
202.775.5734


Jonathan E. Canis
canis.jonathan@arentfox.com
202.775.5738


Alan G. Fishel
fishel.alan@arentfox.com
202.857.6450


Michael B. Hazzard
hazzard.michael@arentfox.com
202.857.6029


Stephanie A. Joyce
joyce.stephanie@arentfox.com
202.857.6081


Jeffrey E. Rummel
rummel.jeffrey@arentfox.com
202.715.8479
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