Federal Communications Commission (FCC) Announcements

  • The FCC's Consumer and Governmental Affairs Bureau will host a forum tomorrow, October 1, 2013, to discuss cybersecurity and children’s online safety. The forum will be held from 10:00 am to 3:00 pm Eastern in the FCC Meeting Room. Space is limited; to register, send your name, organization and contact information to cybersecuritynextgen@fcc.gov. To learn more or to register, click here.
  • The next two FCC Open Meetings are scheduled for October 22 and November 14, 2013. 

The Mobile Market

  • On September 19, 2013, Senator Al Franken, D-Minn., sent a letter to Apple asking a series of privacy-related questions about the fingerprint sensor embedded in the iPhone 5S. While acknowledging that it is “clear...that Apple has worked hard to secure this technology and implement it responsibly,” Sen. Franken posed 15 questions about how Apple protects the user’s fingerprints, how it shares that information with law enforcement and other third parties, and what steps have been taken to prevent the fingerprint file from being accessed by hackers. “Passwords are secret and dynamic; fingerprints are public and permanent,” wrote Sen. Franken. “If you don’t tell anyone your password, no one will know what it is. If someone hacks your password, you can change it – as many times as you want. You can’t change your fingerprints. You have only 10 of them. And you leave them on everything you touch; they are definitely not a secret. What’s more, a password doesn’t uniquely identify its owner – a fingerprint does. Let me put it this way: if hackers get a hold of your thumbprint, they could use it to identify and impersonate you for the rest of your life.” More information about Sen. Franken’s questions, including a copy of the letter, is available here.
  • The FCC’s Public Safety and Homeland Security Bureau will host a public workshop on October 2, 2013, to discuss the use of wireless technology to contact emergency services. Among the topics to be discussed are the quality of 911 location information delivered to Public Safety Answering Points (PSAPs), including concerns raised in an ex parte filing by the California chapter of the National Emergency Number Association (CALNENA) about the percentage of wireless 911 calls in California being delivered without required location information. Details regarding the workshop participants, panels, and times will be announced by the Bureau in a further public notice. The Bureau will accept comments from interested parties in advance of the Workshop until September 25, 2013. The public notice is available here.
  • Oppositions to Petitions to Deny the application of AT&T, Inc. for approval of its purchase of Leap Wireless are due to the FCC on October 7, 2013. Petitioners may file Replies by October 15, 2013. WT Docket 13-193. The Public Notice is available here.
  • Reply Comments on the FCC Notice of Proposed Rulemaking seeking input on proposals to allow commercial use of spectrum in the 1695-1710 MHz, 1755-1780 MHz, 2020-2025 MHz, and 2155-2180 MHz bands are due October 16, 2013. The full NPRM is available here. GN Docket No. 13-85. 

Federal Trade Commission (FTC) and Privacy Regulation

  • On September 25, 2013, the FTC announced that it settled its first case involving a debt collector who allegedly violated federal law by sending text messages for debt collection. According to the FTC, the Glendale-based debt collector – Archie Donovan and two companies he controls, National Attorney Collection Services, Inc., and National Attorney Services LLC – used both text messages and phone calls to collect debts from consumers, but failed to disclose that they were debt collectors and thus violated both the Fair Debt Collections Practices Act and the FTC Act. The debt collectors also falsely portrayed themselves as law firms. The settlement requires the defendants to pay $1 million, to stop sending text messages that do not include the disclosures required by law, and to obtain a consumer’s express consent before contacting them by text message. It also bars them from claiming to be law firms and from threatening to sue or take any action – such as seizure of property or garnishment of wages. More information regarding the settlement is available here.
  • The FTC will hold a consumer privacy workshop on November 19, 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.

Developments in Intercarrier Compensation

  • On September 17, 2013, the South Dakota Public Utilities Commission (SDPUC) denied the motion of Sprint Communications Company for summary judgment on its complaint filed against Native American Telecom LLC (NAT). Sprint filed its complaint on May 4, 2010, seeking a declaratory ruling that NAT was billing Sprint for high-volume access services unlawfully, having failed to obtain a certificate of authority from the SDPUC and to file a switched access tariff. Sprint also sought a declaration that the SDPUC has sole authority to regulate Sprint’s intrastate long distance services that Sprint is not subject to the jurisdiction of the Crow Creek Sioux Tribe Utility Authority. NAT argued that Sioux Tribal Court had primary jurisdiction over the dispute, but the United States District Court for the District of South Dakota enjoined the Sioux Tribal Court from hearing the matter. In denying Sprint’s motion for summary judgment, the SDPUC ruled that Sprint has failed to demonstrate the absence of any genuine issue of material fact, because “NAT has disputed a number of Sprint’s stated undisputed material facts. The commission finds Sprint has failed to show that it is entitled to judgment as a matter of law.” Docket No. TC10-026.

Compliance Notes

  • Form 499-Q is due November 1, 2013, for all filers that are not considered de minimis for Universal Service filing purposes. This filing encompasses historical revenues from the third quarter of 2013 and projected revenues for the first quarter of 2014. A copy of the current FCC Form 499-Q can be found here.

Voice over Internet Protocol (VoIP) providers and Commercial Mobile Radio Service (CMRS) providers who rely on traffic studies to report interstate revenues on FCC Form 499-Q must submit these studies by November 1, 2013, to the Universal Service Administrative Company (USAC) and the Chief, Industry Analysis and Technology Division of the FCC.

  • The Universal Service Fund proposed contribution factor for the Fourth Quarter of 2013 is 15.6%. A copy of the Public Notice can be found here. (DA 13-1880).

In the Courts

  • On September 24, 2013, the U.S. District Court for the Northern District of California partially granted a motion to enlarge the claims asserted by putative class action plaintiffs against Wise Media and various mobile industry aggregators, including Motricity, mBlox, and Mobile Messenger. Plaintiffs allege that Wise Media, in concert with the aggregator defendants, engaged in “cramming” by sending unauthorized text messages in violation of the federal Telephone Consumer Protection Act (TCPA) and caused unauthorized charges to be placed on plaintiffs’ mobile phone bills. According to the court, Plaintiffs obtained new information in discovery from Wise Media’s court-appointed receiver and various government agencies that prompted them to seek to add new defendants, including Mobile Messenger Australia Pty Ltd., M-Qube, and the Winley Group, and assert additional claims for negligence (which the court had dismissed from the plaintiff’s original complaint), joint venture liability, trespass to chattels, and intentional interference with contract. The court held that the additional defendants may be added, but that only the negligence claim was sufficiently pled. The court found the joint venture claim deficient, because plaintiffs failed to allege that the defendants actually shared in the profits of the alleged cramming. The court also held that the alleged cramming did not give rise to an interference-with chattels claim, because the alleged injury was purely financial and did not involve any harm to the mobile phone itself which is the chattel protected under such a claim. Finally, the court found the interference-with-contract claim defective, because “imposing a twenty cent fee [for a text message] does not, as a matter of law, make performance under a contract more costly or burdensome.” Plaintiffs must file a conforming amended complaint by October 1, and the defendants have until October 22 to file their respective answers. Fields v. Wise Media, LLC, No. C 12-05160 (N.D. Cal. Sept. 24, 2013).

Legislative Outlook

  • The House Communications Subcommittee will hold a hearing tomorrow, October 1, 2013, titled “Challenges and Opportunities in the 5 GHz Spectrum Band”. It will begin at 10:30 am Eastern in 2123 Rayburn. Witnesses have not been announced. The hearing notice is available here.
  • The House Energy and Power Subcommitee will conduct a hearing on October 2, 2013, on the discussion draft of HR __, the “North American Energy Infrastructure Act”, at 10:00 am Eastern in 2123 Rayburn. For more information, including the draft bill, click here.