BloostonLaw Telecom Update
Vol. 10, No. 35
September 19, 2007
Reminder That Ownership Changes May Require FCC Approval
We want to remind our clients that many types of reorganizations and other transactions require prior FCC approval; and given the frequent need to implement such transactions by the end of the year, companies engaging in such transactions should immediately evaluate whether they must file an application for FCC approval, and obtain a grant, before closing on a year-end deal. Transactions requiring prior FCC approval include (but are not limited to): *Any sale of a company that holds FCC licenses;
- Any transfer of stock that results in a shareholder attaining a 50% or greater ownership level, or a shareholder relinquishing a 50% or greater ownership level;
- Any transfer of stock, partnership or LLC interests that would have a cumulative affect on 50% or more of the ownership.
- The creation of a holding company or trust to hold the stock of an FCC license holder;
- The distribution of stock to family members, if there are changes the control levels discussed above;
- The creation of new classes of stockholders that affect the control structure of an FCC license holder.
- Certain minority ownership changes can require FCC approval (e.g., transfer of a minority stock interest, giving the recipient extraordinary voting rights or powers through officer or board position).
Fortunately, transactions involving many types of licenses can often be approved on an expedited basis. But this is not always the case, especially if microwave licenses are involved. Also, in some instances Section 214 authority is required, especially in the case of wireless and other telephony services. Clients planning year-end transactions should contact us as soon as possible to determine if FCC approval is needed.
BloostonLaw Private Users Update
Vol. 7, No. 9
FCC Sets New Benchmarks For 800 MHz Rebanding
The FCC, at its September 11 open meeting, adopted a Memorandum Opinion and Order and a companion Public Notice to expedite the 800 MHz rebanding process. In the Order, the Commission determined that Sprint Nextel did not meet the interim 18-month rebanding benchmark established by prior orders, and set additional benchmarks to ensure that the rebanding process proceeds expeditiously. The Order also requires Sprint to complete clearing of all Channel 1-120 incumbents in non-border areas, other than Sprint and SouthernLINC, by December 26, 2007. In addition, Sprint must clear its own Channel 1-120 facilities, and those of SouthernLINC, within 90 days of a request by a public safety licensee to use those channels. For any public safety request made on or after January 1, 2008, Sprint will be required to clear the necessary spectrum within 60 days of the request.
The Commission also affirmed that at the end of the 36- month transition period on June 26, 2008, Sprint must vacate its remaining spectrum in Channels 1-120, as well as other portions of the 800 MHz band that are to be made available to public safety in accordance with prior Commission orders. Under limited circumstances, Sprint may petition to remain on Channel 1-120 channels.
Finally, the Order granted requests by six National Public Safety Planning Advisory Committee (NPSPAC) licensees in Georgia and Pennsylvania for additional time through March 2009 to complete rebanding because of their close proximity to incumbent analog broadcasters using TV Channel 69. The Commission allowed the petitioners to postpone their base station infrastructure retuning until after these broadcasters have vacated the spectrum as part of the nationwide digital television transition.
In the companion Public Notice, the Commission set forth new procedures and guidance to expedite the rebanding process for all parties involved, including public safety, Sprint, equipment vendors, and the 800 MHz Transition Administrator (TA).
The new procedures and guidelines are intended to expedite: (1) rebanding planning activities undertaken by NPSPAC licensees; (2) negotiation of Frequency Reconfiguration Agreements (FRAs) with Sprint; and (3) physical implementation of rebanding.
FCC Chairman Kevin Martin said: “As the companion Public Notice makes clear, the obligation to complete the rebanding process does not fall on Sprint alone, but requires all stakeholders to redouble their efforts. The Commission will continue to do its part to ensure that the 800 MHz rebanding process is completed in a timely and efficient manner, minimizing the burden on public safety, and preserving public safety’s ability to operate during the transition. To do otherwise would abdicate our responsibility at a time when it is more important than ever to ensure that first responders have the communications capabilities they need to provide for the safety of our nation and its citizens.”
In his separate statement, Commissioner Michael Copps said: “The two items … make clear that both sides of the table in the ongoing negotiations—industry and public safety—bear equal measures of responsibility to move forward expeditiously. We will not tolerate commercial users remaining in their existing section of the band too long, nor will we grant requests for extension from public safety users that have not acted diligently and expeditiously to move this process along.”
According to the Public Notice, certain time limits shall apply to planning activities for NPSPAC licensees that have negotiated a Planning Funding Agreement (PFA) with Sprint or are engaged in planning without a PFA. All NPSPAC licensees must complete planning (either with or without a PFA) and submit a cost estimate to Sprint in accordance with the following timelines: NPSPAC licensees with systems of up to 5,000 subscriber units must complete planning and submit a cost estimate within 90 days of TA approval of the PFA. NPSPAC licensees with 5,001-10,000 units must complete planning and submit a cost estimate in 100 days; and those with more than 10,000 units must complete planning and submit a cost estimate in 110 days.
NPSPAC licensees in Waves 1-3 that are already engaged in planning their transition on the release date of this Public Notice must complete planning and submit a cost estimate to Sprint as follows: Wave 1– by October 15, 2007; Wave 2 – by November 15, 2007; and Wave 3 – by December 15, 2007.
Sprint has been instructed to cooperate with and fully support NPSPAC licensee planning efforts in accordance with these time limits. The FCC discourages licensees from requesting extensions of time for planning that assert delays by Sprint as the basis. Requests for extension based on delay caused by Sprint will not be routinely granted.
Frequency Reconfiguration Agreement Negotiations: The following time limits shall apply to FRA negotiations between NPSPAC licensees and Sprint: Following completion of planning and submission of a cost estimate to Sprint by the licensee, parties have 30 days to negotiate an FRA. Licensees shall complete their cost estimate in accordance with the Cost Estimate guidance provided by the TA. Negotiations shall be subject to monitoring by the TA mediator, who shall confirm the date on which a cost estimate was submitted to Sprint, but the mediator is not required to participate in negotiations.
If the parties are unable to negotiate an FRA within 30 days, the parties shall participate in mediation for 20 days. The TA shall refer any remaining disputed issues to PSHSB within 10 days of the close of the mediation period, during which time the parties will complete the briefing of such issues. In referring such disputes, the TA mediator shall provide a record summary to the Public Safety and Homeland Security Bureau (PSHSB), and shall provide a Recommended Resolution unless the Bureau notifies the mediator that a mediator recommendation is not required.
Change Notice Process: The Change Notice process is designed to address unanticipated changes in cost, scope, or schedule that occur during implementation or in the case of an emergency. Some NPSPAC licensees have expressed concern that uncertainty regarding the Change Notice process has prolonged initial planning and FRA negotiations. The FCC therefore offers the following guidance with respect to the Change Notice process:
- The Change Notice process is subject to the Commission’s Rebanding Cost Clarification Order. Accordingly, the negotiation and approval of Change Notice requests should take into account the overall goals of this proceeding, not just the issue of minimum cost.
- Licensees may not use the Change Notice process to recover costs that were reasonably foreseeable during planning or FRA negotiations but were not raised in negotiations, or that were considered and rejected. However, licensees that comply with the planning and FRA time limits discussed above may seek to recover costs incurred that could not reasonably be anticipated within such time limits.
- Licensees should submit Change Notice requests concurrently to Sprint and the TA. To facilitate Change Notice review and approval, both Sprint and the TA should have requests reviewed by personnel that are already familiar with the licensee’s FRA and rebanding requirements wherever possible.
- Sprint shall respond to all Change Notices requests within 10 working days of receipt. If negotiations are unsuccessful, either party may request mediation from the TA and parties shall participate in mediation for 15 working days, with any remaining disputes referred to PSHSB at that time. If parties agree to an amendment to their FRA, the TA shall review all such amendments within 10 working days from the date submitted by the parties for approval.
Rebanding Implementation: Rebanding implementation consists of: (1) replacement and retuning of subscriber equipment; (2) retuning of base stations to the licensee’s new channel assignments and commencement of system operations on the new channels (sometimes referred to as the system “cutover”); and (3) additional post-cutover system modifications (e.g., disposal of temporary or legacy equipment, removal of pre-rebanding channels from subscriber units). NPSPAC licensees should initiate specific tasks and activities associated with these implementation steps as early in the rebanding process as possible. Some of these tasks can be initiated prior to the conclusion of FRA negotiations, and licensees should be prepared to proceed rapidly with implementation once the FRA is finalized. The FCC encourages NPSPAC licensees to take the following steps:
- Use the resources offered by the TA to prepare for and expedite system reconfiguration. Guidance on key processes and procedures is available on the TA’s website at http://www.800TA.org/org/reconfig_phase/reconfi g1.asp.
- Provide for early replacement/retuning of equipment. Engage vendors and consultants in reconfiguration implementation and begin to replace or retune equipment as early as possible.
- Finalize contracts with vendors and consultants to ensure that equipment will be delivered and implementation work completed in accordance with the FRA rebanding schedule and FCC requirements.
- Create and distribute lists of key licensee personnel and contacts, as well as contacts for vendors, consultants, Sprint, and the TA. Designate an internal or vendor contact who will respond to requests from the TA for status updates regarding the implementation schedule and progress.
- Maintain an inventory of all subscriber and infrastructure equipment affected by rebanding, and verify the receipt of all loaner and replacement equipment.
- Notify Sprint when channels in the new NPSPAC band need to be made available to allow system testing or operation on the licensee’s new channel assignments. Coordinate with Sprint regarding filing license modifications needed to add the new frequencies to the licensee’s authorizations.
- For systems that use mutual aid channels, have a plan in place to maintain mutual aid operations during reconfiguration. Coordinate efforts to ensure continuity of mutual aid interoperability arrangements with neighboring licensees.
- Notify the TA if an issue affecting implementation is identified that vendors, consultants, or Sprint cannot quickly resolve, or that materially affects the implementation schedule.
Regional Implementation Planning: NPSPAC licensees and Sprint are encouraged to define implementation schedules, including the clearing of necessary frequencies for licensee reconfiguration and filing of license modifications, in the FRA wherever feasible. For licensees in areas with few, if any, other NPSPAC licensees; or licensees without significant interoperability dependencies, this should be a specific goal of the FRA negotiation. This will help reduce the amount of additional time and planning resources required from all parties for subsequent efforts.
As part of implementation preparation in certain (but not all) areas, the TA is conducting a series of NPSPAC rebanding implementation planning sessions for NPSPAC licensees on a regional or state-wide basis. NPSPAC licensees in such areas are expected to participate in these sessions, regardless of whether they have executed an FRA with Sprint. The purpose of the sessions is to develop a comprehensive implementation schedule, including proper identification of issues, risks, dependencies and next steps. The FCC provides the following guidance to NPSPAC licensees attending planning sessions:
- Licensees should be prepared to discuss their overall timelines and implementation plans for reconfiguration, as well as interoperability, vendor commitments, and other dependencies, key assumptions, and open issues.
- Licensees are encouraged to proceed with all possible reconfiguration implementation activities for their own systems while the regional planning process is under way.
- Licensees that have executed an FRA without an implementation schedule that can reconfigure their infrastructure in advance of the regional planning process and independently of other systems (such as a statewide mutual aid network) should notify both Sprint and the TA concurrently of the date by which channels in the new NPSPAC band need to be made available. Sprint shall respond to all such requests with a schedule for making new NPSPAC channels available to the licensee within 15 working days.
- Multiple licensees that propose to reconfigure as a coordinated group may present a single timeline and plan (even if they have separate FRAs).
- For licensees in mediation with Sprint, discussions at regional planning sessions will not be treated as part of the official mediation record. Wave 4 Border Area Planning: The negotiation periods for border area licensees in Wave 4 have been extended pending resolution of ongoing international discussions on US-Canada and US-Mexico border issues. During this extended period, Wave 4 border area licensees are not required to engage in planning or negotiation prior to receipt of frequency designations from the TA. However, the FCC encourages licensees to engage in such activities to the extent that they are not frequency-dependent and would not result in unnecessary duplication of costs. For example, border area licensees may conduct system inventories and develop plans for replacement and retuning of equipment. If licensees choose to engage in such activities, Sprint shall pay licensees’ reasonable costs in accordance with the requirements of the Commission’s orders in this proceeding.
Public Safety Licensee Requests for Extension of 36- Month Deadline: Some public safety licensees have expressed concern that they will be unable to complete their system rebanding by the June 26, 2008 deadline established by the Commission. The FCC offers the following guidance for public safety licensees who anticipate that they may need to file requests to extend the deadline:
- In general, the FCC discourages public safety licensees from filing extension requests at this time. Requests that are filed may be held in abeyance pending further review of progress in rebanding implementation.
- Requests for extension will be subject to a high level of scrutiny. Licensees will be expected to demonstrate that they have worked diligently and in good faith to complete rebanding expeditiously, and that the amount of additional time requested is no more than is reasonably necessary to complete the rebanding process.
- Factors that will be considered in evaluating requests will include system size and complexity, degree of interoperability with other systems, and level of effort required to complete rebanding implementation.
- The FCC clarifies that public safety licensees do not need to file extension requests in order to be assured of continued funding by Sprint in the event that their rebanding activities extend past the 36-month deadline. Sprint is required to pay all licensee rebanding expenses that are reasonable, prudent, and necessary regardless of when such costs are incurred. The FCC directs the TA to approve FRAs that provide for recovery of rebanding costs incurred after June 26, 2008, provided such costs are otherwise recoverable under the TA’s standards.
FCC Proposes BRS Regulatory Fees
The FCC has established comment dates for its Further Notice of Proposed Rulemaking (FNPRM) addressing the methodology for calculating regulatory fee payments in the Broadband Radio Service (BRS). Pursuant to an earlier decision in the FY 2006 Decision, BRS licensees will pay a fee in one of three categories based on their Basic Trading Area (BTA) size as ranked by population instead of the flat fee now assessed. The FCC is proposing to use a weighted average approach based on its 2006 Decision to establish three tiers of regulatory fees using a 3:2:1 ratio (i.e., 3x for Tier 1, 2x for Tier 2 and 1x for Tier 3) where Tier 1 would be the top 60 markets, Tier 2 would be markets 61 – 200 and Tier 3 would be markets 201 to 493 (which have populations of less than 250,000). The comment cycle in this MD Docket No. 07- 81 proceeding will close October 15.
FCC Launches Automated Disaster Reporting System
The FCC has launched a newly designed and automated Disaster Information Reporting System (DIRS). DIRS is a voluntary, efficient, web-based system that communications companies, including wireless, wireline, broadcast, and cable providers, can use to report communications infrastructure status and situational awareness information during times of crisis. This will better streamline the reporting process and enable communications providers to share network status information with the Commission quickly and efficiently, the FCC said. It also noted that establishment of this database addresses many of the recommendations submitted by the Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks regarding the collection of disaster-related outage and other situational awareness information. DIRS includes data templates for different communications sectors (i.e. wireless, wireline, broadcast, and cable). Participating communications providers will initially log onto the system to input their emergency contact information. Once this is done, participating communications providers that serve areas affected by disasters will be able to voluntarily submit information regarding, inter alia, the status of their communications equipment, restoration efforts, power (i.e., whether they are using commercial power, generator or battery), and access to fuel.