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. 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 Mobile Market
- The European Commission recently announced that it will open an anti-dumping investigation to determinate whether any fair trade standards were violated by China in its export of mobile telecommunications network equipment to Europe. In a statement, European Union Trade Commissioner Karel De Gucht stated that the Commission had “taken a decision in principle to open an ex officio anti-dumping and an anti-subsidy investigation” concerning the imports. The Commissioner also indicated that the formal investigation will not get underway until the EU and China have first engaged in negotiations on the issues. For more, click here.
- FirstNet, the organization charged with building a nationwide public safety broadband network, will hold six regional workshops that it will hold with states, tribes, territories, and localities to discuss the nationwide network. The first workshop will be held May 15-16 in the Washington, DC area. The other workshops will be in Denver (May 21-22), San Francisco (May 29-30), St. Louis, (June 12-13), Boston, (June 19-20), and Memphis (June 26-27). The official press release is available here.
- At its May 9 Open Meeting, FCC approved a joint Notice of Proposed Rulemaking (NPRM) and Notice of Inquiry (NOI) aimed at facilitating the use of spectrum by the budding commercial space launch industry for communications services that control, monitor, and track launch vehicles. According to a Commission press release, the “proposal represents an important first step towards enabling commercial space launch operators to directly acquire licenses needed for use during launches” and also inquires about “future spectrum requirements of the commercial space industry.” Comments will be due 60 days after Federal Register publication with Reply Comments due 90 days after publication. The NPRM/NOI is available here. Docket ET No. 13-115.
- 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 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.” More information regarding the one-day forum 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”. In advance of the workshop, the FTC is inviting comments on these issues and will accept submissions through June 1, 2013. More information regarding the “Internet of Things” workshop and comments is available here.
New Markets: Smart Grid and E-Health
- Reply Comments on the USTelecom for reconsideration and clarification of the FCC’s Healthcare Connect Fund (HCF) Order are due today, May 20, 2013. The petition asks the FCC to reconsider its decisions to permit health care providers participating in the HCF to install and resell excess capacity, and to receive support for dark fiber. USTelecom also asks the Commission to clarify several parts of the order. To read the Public Notice, click here. WC Docket No. 02-60.
Developments in Intercarrier Compensation
- On May 13, 2013, the competitive LEC entity of Sprint filed its reply brief to an Illinois Commerce Commission (ICC) administrative law judge (ALJ) in an arbitration proceeding against Illinois Bell Telephone Company d/b/a AT&T Illinois. Sprint had petitioned the Illinois Commerce Commission (ICC) on October 4, 2012, to arbitrate several disputes with AT&T regarding the parties’ interconnection agreement (ICA), such as whether Sprint can terminate traffic to AT&T over local interconnection facilities if the traffic did not originate from a Sprint end user. The ALJ’s recommended decision states that AT&T’s interconnection obligations under Section 251 of the 1996 Telecom Act extend only to traffic originated by Sprint’s end users, and thus AT&T has no obligation to provide interconnection to terminate this transit traffic. In its reply brief, Sprint argues that the ALJ’s ruling improperly imposes “an end user limitation on Section 251(c)(2) that is not found within the statute, the FCC’s rules, or the FCC’s orders.” Sprint is requesting that the ICC hold oral argument before voting on the proposed decision. Docket No. 12-0550.
- 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)
- The Federal Register has published the FCC’s Notice of Proposed Rulemaking in PS Docket No. 12-94 regarding the use of broadband in the public safety network. Initial Comments are due May 24, 2013, and Reply Comments are due June 10, 2013. To read the Public Notice announcing these dates, click here. To read the NPRM, click here.
In the Courts
- On May 15, 2013, the FCC filed its opposition with the D.C. Circuit Court of Appeals to the petition for a writ of mandamus filed by Legacy Communications and others. The petition demands that the FCC refund filing fees that Legacy and other petitioners tendered with their FCC Form 301 broadcast license construction applications or, alternatively, that the FCC take action on their challenges to the Staff’s decisions denying their request for refunds. The controversy arose in March 2011 when the FCC refunded certain applicants’ fees with the note “not required to pay fee,” which prompted various refund requests from other applicants, including the petitioners in this case. Two years later, the FCC’s Office of Managing Director denied the refund requests. The FCC attacks the mandamus petition on two grounds. First, it argues that the DC Circuit lacks jurisdiction to hear what is effectively a challenge of FCC “staff rulings denying their requests for refunds.” The Communications Act makes full Commission review a condition precedent to judicial review, the FCC argued. And, in fact, the petitioners filed applications for review to the full Commission three weeks ago. Second, as to the merits of its refusal to give refunds, the FCC argues that the “Commission’s reasonable construction of its own rules deserves deference,” notwithstanding the increasing scrutiny of so-called Auer deference. In re Legacy Commc’ns, LLC, No. 13-1013 (D.C. Cir. May 15, 2013).
- The full House Commerce Committee will hold a hearing titled “Cyber Threats and Security Solutions” on May 21, 2013, at 10:00 am Eastern in 2123 Rayburn. For more information, click here.
- The House Communications Subcommittee will hold a hearing titled “Cybersecurity: An Examination of the Communications Supply Chain” on May 21, 2013, at 2:00 pm Eastern in 2123 Rayburn. More information is available here.