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’s Office of Communications Business Opportunities will hold an Access to Capital Conference and Workshop on July 11, 2013, from 9:00 am to 4:30 pm Eastern. The morning session will feature a panel discussion, and the afternoon session will consist of one-on-one meetings where small businesses can discuss funding opportunities with the panelists. To register for one of these sessions, send a company profile via email by June 21, 2013, to Karen.Beverly@fcc.gov. For more information, click here.
  • The next FCC Open Meeting is June 27, 2013. We will provide the Tentative Agenda when it is released. The following Open Meetings presently are scheduled for August 9 and September 26.

The Mobile Market

  • The mHealth Summit, the world’s largest tradeshow and conference focused on all aspects of mobile health, has announced that the 2013 Call for Presentations is now open. Proposals may be submitted through June 7, 2013. This year’s event is expected to attract 5,000 attendees from 60 countries and will take place at the Gaylord National Resort and Convention Center in Washington, DC on December 8-11, 2013. Sessions will focus on how wireless technologies and healthcare providers can collaborate to improve the delivery of services, and how the implementation and integration of new mobile and wireless technologies are improving workflow efficiencies while reducing the cost of healthcare. For more, click here.
  • The next FirstNet Workshops will be in St. Louis (June 12-13), Boston (June 19-20), and Memphis (June 26-27). FirstNet is the organization charged with building a nationwide public safety broadband network. (See May 20 edition of This Week in Telecom.) For more information, click here.
  • On May 1, 2013, the FCC released a Notice of Proposed Rulemaking on measures it may adopt to prevent the use of cellphones by incarcerated persons. In the NPRM, the FCC states that “[p]risoners’ use of contraband wireless devices to engage in criminal activity is a serious threat to the safety of prison employees, other prisoners, and the general public.” The proposed rules would make it easier for correctional facilities to enter into leases or spectrum management agreements, allowing them to control which wireless devices were able to access the network. In addition, the proposed rules would “require wireless providers to terminate service, if technically feasible, to a contraband wireless device if an authorized correctional facility official notifies the wireless provider of the presence of the contraband wireless device”. The Commission also invites comment on “other technological approaches for addressing the problem of contraband wireless device usage in correctional facilities.” Comments on the NPRM are due 30 days after Federal Register publication, and Reply Comments are due 45 days after publication. The NPRM is available here. GN Docket No. 13-111; ET Docket No. 08-73; WT Docket No. 10-4.

Federal Trade Commission (FTC) and Privacy Regulation

  • The FTC will host a one-day public forum tomorrow, 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.” More information regarding the one-day forum is available here.
  • The Federal Trade Commission is seeking public comment on proposed amendments to strengthen the Telemarketing Sales Rule (TSR) protections against fraudulent charges and services. In particular, the FTC seeks to curtail the use of a number of payment methods favored by unscrupulous entities, including (i) “stop[ping] telemarketers from dipping directly into consumer bank accounts by using unsigned checks and ‘payment orders’ that have been ‘remotely created’” and (ii) “bar[ring] telemarketers from getting paid with traditional ‘cash-to-cash’ money transfers, as well as ‘cash reload’ mechanisms.” Public comments on the proposed amendments to the TSR will be accepted until July 29, 2013. More information is available here.
  • The FTC has announced a public workshop to be held on November 21, 2013, in Washington, DC to address the consumer privacy and security issues raised by the growing connectivity of consumer devices such as smart phones, cars, appliances, and medical devices, also commonly referred to as “The Internet of Things”. More information regarding the “Internet of Things” workshop and comments is available here.

New Markets: Smart Grid and E-Health

  • On May 29, 2013, the FCC released an Order on Reconsideration that clarifies some of the rules it adopted earlier this year in the Experimental Licenses docket. The modifications were made on the Commission’s own motion after it concluded that the rules regarding the transfer of certain experimental licenses were vague. The Order on Reconsideration concludes that it is “in the public interest” to impose a complete prohibition on “the transfer of program, medical testing, and compliance testing experimental radio licenses.” The Commission will, however, continue to “permit conventional experimental authorizations to be transferred with the written approval of the Commission.” It reasoned that this prohibition on transfer is appropriate due to the specialized nature of medical testing and compliance testing licenses, each of which are available only to specialized organizations such as universities or hospitals. In addition, many of these new experimental licenses allow the experimentation to occur only at a designated location, making transfer of the license to another entity largely impractical. The full Order on Reconsideration (FCC 13-76) is available here.

Developments in Intercarrier Compensation

  • On May 28, 2013, the New Hampshire Public Utilities Commission (NHPUC) affirmed its 2011 decision that Comcast Phone of New Hampshire’s provision of cable voice service is subject to NHPUC regulation. The decision followed the 2012 enactment of a New Hampshire law that restructured telephone regulation within the state and prohibits regulating the market entry, market exit, transfer of control, rates, terms, or conditions of any VoIP service or IP-enabled service. The New Hampshire Supreme Court instructed the NHPUC to reevaluate its previous decision in light of the new law, and Comcast and other VoIP providers argued that the NHPUC’s previous order was unenforceable as a result of the new regulatory regime. The NHPUC found, however, that Comcast’s cable voice service “constitutes the conveyance of telephone messages to the public.” As such, Comcast is operating as a public utility even within the new regulatory structure and it is subject to the minimal regulation associated with the “excepted local exchange carriers” as defined in the new law. The NHPUC further found that the minimal regulation to be imposed on Comcast is not preempted by federal law. Docket Nos. 09-004, 12-308.

Compliance Notes

  • The FCC requests comment on its proposed methodologies for allocating and collecting its annual regulatory fees from its licensees. Initial Comments are due June 19, 2013, and Reply Comments are due June 26, 2013. The FCC proposes to maintain its current rate of $0.00375 per assessable dollar for Fiscal Year 2013 for interstate telecommunications service providers (ITSPs), and $0.17 per subscriber for each Commercial Mobile Radio Service Provider (CMRS). As part of this proceeding, the FCC is proposing to change how it calculates the revenues needed to regulate all of its licensees in Fiscal Year 2014. The FCC also proposes to combine the wireless and ITSP categories, and having this combined category of providers pay their annual regulatory fees based upon their revenues, as the ITSPs do currently.

The FCC will no longer accept checks and hardcopy forms (such as FCC Form 159-W) beginning October 1, 2013, for payment of regulatory fees. This change is made in accordance with the Office of Management and Budget’s Open Government Directive, which requires the US Treasury to move towards paperless payment processes. A copy of this Notice of Proposed Rulemaking (FCC 13-74) can be found here. (MD Docket No. 12-201, MD Docket No. 13-58, MD Docket No. 08-65).

  • The FCC Wireline Competition Bureau has announced its proposed funding requirements for the North American Numbering Plan (NANP) Administration for Fiscal Year 2013. Every telecommunications carrier and interconnected Voice over Internet Protocol (VoIP) provider is required to contribute to numbering administration on a competitively neutral basis, as follows: either a minimum of $25; or the product of the carrier’s end user telecommunications revenue, as reported on the filer’s FCC Form 499-A, multiplied by the contribution factor proposed to be 0.0000302. This contribution factor will become effective June 12, 2013, if the FCC takes no action regarding the proposed fund size before then. A copy of the Public Notice (DA 13-1215) can be found here. (CC Docket No. 92-237).
  • 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

  • On May 22, 2013, the FCC released an order allocating $300 Million for the second round of funding for Connect America Phase I. The FCC previously allocated $300 Million for the first round. The money is intended “to further leverage private investment in rural America and accelerate the availability of broadband to consumers who lack access.” Connect America Fund, WC Docket No. 10-90, Report and Order, FCC 13-73, available here.

In the Courts

  • On May 28, 2013, the US of Appeals for the DC Circuit Court overturned the FCC’s ruling that Comcast discriminated against the Tennis Channel by refusing to place it on the same tier as its own Versus (now NBC Sports Network) and Golf sports channels. The court of appeals did not discuss Comcast’s procedural and constitutional challenges, but went straight to the merits, holding that “the Commission could not lawfully find discrimination because Tennis offered no evidence that its rejected proposal would have afforded Comcast any benefit.” After sifting through the record, the court agreed with Comcast that neither the FCC nor the Tennis Channel could point to any benefit that Comcast would have received by discriminating against Tennis’s content in favor of its own. The court also noted that “neither Tennis nor the Commission has invoked the concept that an otherwise valid business consideration is here merely pretextual cover for some deeper discriminatory purpose. Instead, both Tennis and the Commission challenge Comcast’s cost-benefit analysis as insufficiently rigorous.” The Court also rejected the argument that “Comcast’s haste” in deciding to exclude the Tennis Channel evidences discrimination, finding that fact “irrelevant”. Judge Edwards wrote separately to note that “the FCC’s current interpretation of subsection 76.1302(f)(3) [concerning the timing for filing discrimination complaints like Tennis Channel’s here] is not only incomprehensible but it fails to credit the sanctity of the parties’ contractual commitments,” and expressed his hope that the FCC will address that issue in the pending rulemaking. Comcast Cable Commc’ns, LLC v. FCC, No. 12-1337 (D.C. Cir. May 28, 2013).

Legislative Outlook

  • The Senate Communications Subcommittee will hold a hearing titled “State of Wireless Communications” tomorrow, June 4, 2013, at 2:30 pm Eastern in 253 Russell. For more information, click here.
  • Also on June 4, the House Subcommittee on Emergency Preparedness, Response, and Communications will hold a hearing titled “Emergency MGMT 2.0: How SocialMedia & New Tech are Transforming Preparedness, Response, & Recovery” at 10:00 am Eastern in 311 Cannon. More information is available here.