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,
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
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.
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.)
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)
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
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.
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
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
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
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
For further information, please contact any of our attorneys in the Arent Fox
Telecommunications Group, including:
Ross A. Buntrock
Jonathan E. Canis
Alan G. Fishel
Michael B. Hazzard
Stephanie A. Joyce
Jeffrey E. Rummel
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