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.

Federal Communications Commission (FCC) Announcements

  • The FCC has released the Tentative Agenda for its next Open Meeting to be held April 18, 2013, at 10:30 am Eastern. It contains three items: a Second Report and Order on streamlining foreign ownership policies for certain radio and aeronautical licenses; a Notice of Inquiry and Proposed Rulemaking on granting VoIP providers direct access to numbers; and a status report from the Consumer and Governmental Affairs Bureau on carrier compliance with the voluntary Code of Conduct to combat “bill shock” that becomes effective April 17, 2013. To read the Tentative Agenda, click here.

The Mobile Market

  • The FCC Consumer and Governmental Affairs Bureau will hold a workshop on bill shock and cramming on April 17, 2013, from 9:00 am to 12:15 pm Eastern. “Bill shock” refers to the sudden and unexpected appearance of overage charges on wireless bills, and “cramming” refers to placing unauthorized or misleading charges on telephone bills. The “workshop will educate consumers about how to protect themselves from both of these problems, and include a discussion of policies addressing these issues.” Panel discussions will include experts from industry, consumer organizations, and the states. For more information, click here.
  • Reply Comments on the remaining issues in the FCC’s Text-to-911 Further Notice of Proposed Rulemaking are due April 9, 2013. The Federal Register notice on the item is available here.

Federal Trade Commission (FTC) and Privacy Regulation

  • The FTC will host a “Cramming Roundtable” on May 8, 2013, to examine unauthorized third-party charges, also known as “cramming,” on mobile phone bills. The roundtable will bring together consumer advocates, industry representatives, and government regulators to explore various issues, including how mobile cramming occurs and how to protect consumers from this practice. The roundtable is free and open to the public and will be held at the FTC’s satellite building conference center, located at 601 New Jersey Avenue, NW, Washington, DC. More information is available here.
  • The FTC has announced that it will host a one-day public forum on June 4, 2013 addressing malware, viruses and similar threats facing users of smartphones, tablets and other mobile technologies. According to the press release, the one-day forum “will focus on the security of existing and developing mobile technologies and the roles various members of the mobile ecosystem can play in protecting consumers from these types of security threats.” Technology researchers and other interested parties are invited to recommend topics for discussion and to submit requests to serve as panelists at the forum, which topics and requests should be submitted electronically to mobilethreats@ftc.gov by March 28, 2013. More information regarding the one-day forum is available here.

New Markets: Smart Grid and E-Health

  • The Department of Energy’s Office of Electricity Delivery and Energy Reliability issued a new Funding Opportunity Announcement (FOA) titled “Innovation for Increasing Cybersecurity for Energy Delivery Systems”. The announcement is seeking applications to conduct research, development and demonstrations leading to next-generation tools and to accelerate deployment of cybersecurity capabilities for the U.S energy infrastructure, including cyber secure integration of smart grid technologies. Approximately $20 million is expected to be available for awards. Applications are due by April 5, 2013. More information is available here.

Developments in Intercarrier Compensation

  • On March 27, 2013, the Missouri Public Service Commission (MPSC) dismissed the complaint of Big River Telephone Company against AT&T Missouri and ordered Big River to pay approximately $352,000 in access charges associated with VoIP traffic it sent to AT&T. Big River filed its complaint on March 2, 2012, alleging that AT&T was violating the parties’ interconnection agreement (ICA) by imposing access charges on traffic that Big River represented as enhanced service traffic. Big River also sought injunctive relief after AT&T threatened to cut off service to Big River. AT&T filed a counterclaim, asserting that the traffic fell outside of the parties’ ICA and Big River was liable for access charges for all interexchange traffic, whether such traffic was sent in VoIP or TDM formats. The MPSC found that Big River represented itself as a VoIP provider to the FCC and other state regulatory commissions, but that it failed to register as a VoIP in Missouri as required by law. The MPSC further ruled that “Big River’s system requires a broadband connection for all its customers and, therefore, should be classified as a VoIP service provider and liable for exchange access charges.” Docket No. TC-2012-0284.

Compliance Notes

  • Companies that provide telecommunications and Voice over Internet Protocol (VoIP) service are reminded that completed FCC Forms 499-A are due today, April 1, 2013. These forms report annual revenue to the Universal Service Administrative Company (USAC) and the Federal Communications Commission (FCC), as well as other fund administrators. This form must be filed by all interstate telecommunications carriers, interconnected VoIP providers, providers of interstate telecommunications that offer service for a fee on a non-common carrier basis (including stand-alone audio bridging companies), and payphone providers that are aggregators. In addition, non-interconnected VoIP providers are now required to file this form for the assessment of fees to support the Telecommunications Relay System (TRS).

A copy of the form may be found here. The instructions for completing Form 499-A may be found here.

The revenues reported on Form 499-A provide the basis for true-up of a company’s Universal Service contributions and serve as the basis for assessing annual fees for the TRS, Local Number Portability (LNP) fund, the North American Numbering Plan Administration fund, and the FCC’s annual fee.

Companies may submit FCC Form 499-A electronically, if they have registered with USAC. If a company submits its FCC Form 499-A to USAC in hard copy, it must contain an officer’s original signature.

  • Certificates regarding disabled persons’ access to services are due today, April 1, 2013. Telecommunications carriers, equipment manufacturers, Voice over Internet Protocol (VoIP) providers, including non-interconnected VoIP providers, wireless carriers, and advanced communications service providers are required to file a certificate with the FCC stating that they maintain records of any and all efforts undertaken to ensure their products and services are accessible to those with disabilities. Specifically, companies must maintain records of:
    • Their efforts to consult with individuals with disabilities;
    • Descriptions of the accessibility features of its products and services; and
    • Information about the compatibility of these products and services with peripheral devices or other equipment typically used to gain access to the company’s services, such as hearing aids.

The certificate has a look-back period to January 30, 2013, and also will be required to be filed annually on a going-forward basis.

The certificate must identify both a contact within the company who is authorized to resolve complaints, as well as an agent to receive any informal complaints that may be received by the FCC regarding the company alleging violations of the Commission’s accessibility rules, or Sections 255, 716, and 718 of the Communications Act of 1934, as amended (the Act). These sections of the Act requires providers to ensure that their services and equipment are accessible by the disabled, including that any Internet browsers included on mobile telephones are accessible by those who are visually disabled (unless doing so is not achievable), and to maintain the records described above. In addition, the certificate must be supported by a declaration or affidavit signed under the penalty of perjury by an officer of the company who has personal knowledge of the company’s recordkeeping policies and procedures.

The FCC has established a filing portal for this certificate, which can be found here. More information can be found in the Public Notice found here. (DA 13-114)

  • The Universal Service contribution factor for the second quarter of 2013 is 15.5%. A copy of the Public Notice announcing the rate can be found here. (DA 13-422)

Broadband News

  • Sen. Al Franken, D-Minn., and Sen. Deb Fischer, R-Neb., have co-authored an amendment to the Senate Budget Resolution that would require increased federal investment in broadband infrastructure for rural areas. The amendment was approved by voice vote last week.

In the Courts

  • On March 25, 2013, the U.S. Court of Appeals for the Ninth Circuit affirmed a ruling that the nation’s four largest wireless carriers cannot be held liable for copyright infringement when their customers infringe an owner’s works via their networks. The plaintiff/appellant alleged that it sells various multimedia content designed to be transmitted via the carriers’ multimedia messaging services, such as mobile greeting cards that the purchaser can forward to the intended recipient. The plaintiff’s terms indicate that the purchaser may share the content only once. But, the plaintiff alleged, such terms were routinely flouted, and the carriers took no action when the plaintiff asked them to protect the copyrighted material. The court of appeals agreed that plaintiffs’ “failure to allege that the Carriers have at least something like a capacity to supervise [the alleged copyright violations of its users] is fatal to a claim of vicarious liability.” On the issue of contributory liability, plaintiff fared no better. The court found that plaintiff’s notice of infringement to the carriers was insufficient. “These notices do not identify which of these titles [listed in the notice] were infringed, who infringed them, or when the infringement occurred,” the court noted. The court concluded that this claim also failed because the plaintiff did not allege that the carriers “had the necessary specific knowledge of infringement.” Ludvarts, LLC v. AT&T Mobility, LLC, No. 11-55497 (9th Cir. Mar. 25, 2013).

Legislative Outlook

  • Sen John “Jay” Rockefeller, IV, D-W.Va., Chair of the Senate Commerce Committee, sent letters to several billing aggregators in the wireless industry requesting information about alleging “cramming” on wireless bills. He asks OpenMarket, Motricity, Mobile Messenger, mBlox, and Ericcson to identify the companies for whom they perform bill aggregation, the billing vendors they use, and their processes for vetting billing vendors and preventing cramming. The letters are available here.