BloostonLaw Telecom Update
Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP
| Vol. 11, No. 28|| July 16, 2008 |
FCC Adopts Recon Order On Commercial Mobile Alerts
On April 9, the FCC released the Commercial Mobile Alert System (CMAS) First Report and Order, in which it adopted technical requirements necessary to enable participating Commercial Mobile Service (CMS) providers to offer a CMAS to their customers, as required by section 602(a) of the WARN Act. Under the WARN Act, CMS providers are the same as Commercial Mobile Radio Service (CMRS) providers. The CMAS is a voluntary program in which carriers may elect to participate.
In an Order on Reconsideration and Erratum adopted yesterday, the FCC took two actions relating to the CMAS First Report and Order. First, on its own motion, it reconsidered and clarified the timeline under which the CMAS First Report and Order required CMS providers to implement the CMAS technical requirements, standards, and protocols. Second, it corrected the effective date of the rules it adopted in the CMAS First Report and Order.
In its recommendations, the Commercial Mobile Service Alert Advisory Committee (CMSAAC) recommended a 12 month period from the date of submission of the CMSAAC recommendations for CMAS participants to complete an industry standardization process. Subsequent to that standardization period, the CMSAAC recommended that participating CMS providers be provided an additional 18 to 24 months to test and deploy the CMAS.
In the CMAS First Report and Order, the Commission adopted a timeline for compliance with the rules adopted therein. In the new section 10.11 of the rules, the Commission required that:
“Notwithstanding anything in this part to the contrary, a Participating CMS provider shall comply with the rules in this part no later than 10 months from the date of announcement by the FCC of an entity or entities to provide the Alert Aggregator and Federal alert gateway functions.”
Upon further review of section 10.11 of the rules, the FCC said it is concerned that it may lead electing CMS Providers to the erroneous conclusion that they must begin delivering CMAS alerts to consumers at the end of the ten-month period discussed in the rule. “This was not our intention,” the FCC said. “Rather, we intended that our rules would be implemented in a manner consistent with the CMSAAC recommended timeline.”
To ensure that the date by which electing CMS Providers must comply with the technical rules adopted in the CMAS First Report and Order is clear, the FCC clarified the manner in which the CMAS First Report and Order implements the CMAS deployment timeline. Accordingly, it revised paragraph 95 of the CMAS First Report and Order to read as follows:
“The Federal Alert Aggregator and Alert Gateway will make the Government Interface Design specifications timeline, CMS providers must begin development and testing of the CMAS in a manner consistent with the rules adopted in this CMAS First Report and Order no later than 10 months from the date that the Alert Aggregator/Alert Gateway makes the Government Interface Design specifications available. This time period is consistent with the 10 months the CMSAAC proposed timeline indicates would elapse between the availability of the Aggregator/Gateway interface design specification and the beginning of CMAS development and testing. We believe that this will give the government and industry stakeholders sufficient time to begin development, including the federal government's role. It will also give electing CMS providers adequate time to come into compliance with the rules adopted herein.”
For the same reasons the FCC revised section 10.11 of its new part 10 to read as follows:
“Notwithstanding anything in this part to the contrary, a Participating CMS provider shall begin development and testing of the CMAS in a manner consistent with the rules in this part no later than 10 months from the date that the Federal Alert Aggregator and Alert Gateway makes the Government Interface Design specifications available.”
The FCC said it will address issues concerning the timing of CMAS testing and deployment, including the CMSAAC's recommendation for up to an additional 24 months for initial deployment, in a subsequent order.
In its Erratum, the FCC said the last sentence of paragraph 100 of the CMAS First Report and Order is corrected to read as follows:
“The Order shall become effective 60 days after publication in the Federal Register, except that any new or modified information collection requirements contained in Appendix C will not become effective prior to OMB approval. We will publish a notice in the Federal Register announcing the effective date of any information collections.”
Last week, we reported that the FCC had adopted a Second Report and Order and Further Notice of Proposed Rulemaking regarding CMAS requirements for non-commercial educational (NCE) and public broadcast station licensees and permittees (BloostonLaw Telecom Update, July 9).
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell.
BUSH SIGNS FISA AMENDMENTS, GIVING CARRIERS IMMUNITY FROM SURVEILLANCE LAWSUITS: President Bush has signed H.R. 6304, the amendments to the 1978 Foreign Intelligence Surveillance Act (FISA), passed by the Senate last week and the House last month (BloostonLaw Telecom Update, June 25). The new law (Public Law No. 110-261) effectively grants retroactive immunity to AT&T, Verizon, and Sprint Nextel in connection with their participation in the National Security Agency’s warrantless wiretap program. The spying initiative began shortly after the September 11, 2001, terrorist attacks and was kept secret until The New York Times revealed its existence in late 2005. The two presidential contenders, Sens. Barack Obama (D-Ill.) and John McCain (R-Ariz.), voted for the bill. Obama previously promised to filibuster any FISA bill with a telecom immunity provision. Bush signed the measure in a Rose Garden ceremony a day after the Senate sent it to him, following nearly a year of debate in the Democratic-led Congress over surveillance rules and the warrantless wiretapping program. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
COURT HOLDS CASE CHALLENGING FCC’s BACKUP POWER RULE IN ABEYANCE: Following Hurricane Katrina, the FCC promulgated a rule requiring all commercial mobile radio service (CMRS) providers to maintain a minimum amount of emergency backup power to ensure communications normally powered by local commercial power. The rule thus requires a backup power source (e.g., batteries or generators) for every cell site or paging transmitter unless an exemption is provided. CTIA—The Wireless Association, et al., opposed the emergency backup rule on the grounds that the FCC adopted it without statutory authority, that the parties lacked notice, and that the agency acted arbitrarily and capriciously. The U.S. Court of Appeals of the District of Columbia Circuit declined to address those issues in CTIA v. FCC because it said the case was not ripe for review. Rather, the court said, the backup power rule’s provisions do not take effect until the Office of Management and Budget (OMB) approves the information collection requirements contained in the rule’s extensive reporting mechanism. The Commission has not yet submitted the information collection requirements to OMB for review, and so OMB has not yet reached a decision, the court said. As a result, the D.C. Circuit decided to hold the case in abeyance, pending OMB review. BloostonLaw contacts: Hal Mordkofsky and John Prendergast.
LAWMAKERS QUESTION MANAGEMENT OF DIGITAL TELEVISION COUPON PROGRAM: Key lawmakers are questioning why the agency charged with distributing coupons for digital television converter boxes is running out of administrative funding and will have difficulty reissuing coupons that have not been redeemed. In a letter to the National Telecommunications and Information Administration (NTIA), Reps. John D. Dingell (D-Mich.), the Chairman of the Committee on Energy and Commerce, and Edward J. Markey (D-Mass.), the Chairman of the Telecommunications and the Internet Subcommittee, said that the NTIA had planned only for the distribution of 33.5 million coupons, when the reissuing of additional coupons could mean administrative costs for the addition of millions of more coupons. “The digital television transition is now seven months away and millions of consumers are counting on NTIA to ensure they don’t lose their local television signals,” said Dingell. “Now, we find that NTIA has not adequately planned for reissuing expired coupons. The Committee intends to determine whether and where there have been shortcomings in the administration of this program, why they were allowed to occur, who was involved and, most importantly, how these problems will be corrected without penalizing consumers.” Markey said, "The coupon program is the key to ensuring that consumers who rely on analog over-the-air TV signals are not left in the dark come next February. The NTIA has long been aware that redistributing expired coupons in a timely fashion would be key to ensuring everyone who needs a coupon receives one. The NTIA’s apparent lack of planning is a serious oversight, one that they must correct promptly and without dipping into the funds marked to help consumers purchase converter boxes." In their letter, Dingell and Markey asked NTIA to explain why NTIA’s Request for Proposal for the DTV Converter Box Program and NTIA’s contract with IBM, which is under contract to administer the coupon program, only accounted for 33.5 million coupons. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
Private Users Update
Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP
| Vol. 9, No. 7|| July 2008 |
FCC To Host Summit On Pandemic Preparedness
The FCC’s Public Safety and Homeland Security Bureau has announced that it will host a Summit on Pandemic Preparedness: Enhancing Communications Response for Health Care and First Responders, to be held on Tuesday, September 16, 2008, 9:00 a.m. – 1:15 p.m., in the Commission Meeting Room (TW-C305).
The Summit will focus on communications and coordination between the health care sector, first responders, government and industry in preparation for a pandemic. The panel discussions will also highlight ways that communications may be expanded and enhanced in response to a pandemic and how the communications industry will serve an instrumental role in such a response.
The Summit will be open to the public; admittance however will be limited to the seating available. Those individuals who are interested in attending may pre-register on-line at: http://www.fcc.gov/pshs/summits/pandemic. Those who pre-register will be asked to provide their name, title, organization affiliation, and contact information. Individuals may also contact Sue Gilgenbach at 202-418-0639 regarding pre-registration. The deadline for pre-registration is Friday, September 12, 2008. Audio/Video coverage of the meeting will be broadcast live with open captioning over the Internet from the FCC's web page at www.fcc.gov/realaudio. The FCC’s web cast is free to the public and does not require pre-registration.
Reasonable accommodations for persons with disabilities are available upon request. Please, include a description of the accommodation you will need. Individuals making such request must include their contact information should FCC staff need to contact them for more information. Requests should be made as early as possible. Please send an e-mail to firstname.lastname@example.org or call the Consumer & Governmental Affairs Bureau: 202-418-0530 (voice), 202-418-0432 (TTY).
Calhoun County Granted Waiver For TARS System
The FCC has granted a waiver request, in which Calhoun County, Alabama, seeks permission to continue operating its Tone Alert Radio System (TARS) on pre-rebanding 800 MHz National Public Safety Planning Advisory Committee (NPSPAC) frequencies rather than rebanding TARS to the new NPSPAC band. The Tone Alert Radio System is an 800 MHz emergency notification network licensed to Calhoun County in the NPSPAC band that operates in both Calhoun and Talladega Counties. TARS is a highly specialized paging-type system designed to alert county residents in the event of a chemical accident at the U.S. Army’s Anniston Army Depot Chemical Weapons Incinerator, which is located in Calhoun County. This system is part of the Chemical Stockpile Emergency Preparedness Program, required by Congress, which protects the general public and the environment from the hazard of accidental or unauthorized release of lethal chemicals or munitions. In the absence of a waiver, Calhoun County would be required to reconfigure TARS to operate in the new NPSPAC band, with Sprint Nextel required to pay the cost of reconfiguration. In its waiver request, however, Calhoun County contends that rebanding TARS would be highly costly, time-consuming, and complex, and would yield limited benefit because the chemical weapons destruction program at Anniston Army Depot is scheduled to end by 2013. Under these circumstances, Calhoun County asserts that the public interest would be better served by allowing continued operation of TARS on its pre-rebanding channels, subject to protection from harmful interference by Sprint.
The County states that Sprint supports its waiver request, and states that Sprint has cooperated with the County in testing whether the TARS system could remain on its current frequencies rather than move to the new NPSPAC band. In that connection, Sprint agreed to pay the testing costs and to pay for future monitoring of TARS performance and susceptibility to interference from commercial operations. Calhoun County states that it is satisfied with the test results, which show that TARS can continue to operate on its present frequencies without significant likelihood of harmful interference or other consequences.
To obtain a waiver of the Commission’s rules, a petitioner must demonstrate either that: (i) the underlying purpose of the rule(s) would not be served or would be frustrated by application to the present case, and that a grant of the waiver would be in the public interest; or (ii) in view of unique or unusual factual circumstances of the instant case, applications of the rule(s) would be inequitable, unduly burdensome, or contrary to the public interest, or the applicant has no reasonable alternative. The FCC concluded that Calhoun County’s request satisfies the waiver standard.
First, Calhoun County has shown that attempting to reconfigure TARS would be unusually complex due to unique logistical and regulatory requirements associated with the system. Rebanding would require the County to replace or reprogram 50,000 warning receivers purchased by the State of Alabama, most of which are installed in individual homes and businesses. The County would also have to comply with Federal Emergency Management Agency and Alabama requirements regarding radio installation, record keeping, and inventory control. Additionally, Warning Systems, Inc., the company responsible for the initial design and ongoing maintenance of the TARS system, downsized after the initial installation and currently lacks enough personnel to support the rebanding effort.
Calhoun County has also shown that reconfiguring TARS would be unusually costly and time-consuming, and would yield only short-term public benefit. Calhoun County estimates that rebanding TARS would cost over $15.8 million and would require until December 2011 to complete. Yet Calhoun County points out that the chemical weapons destruction program for which TARS provides alert capability is scheduled to end by 2013. Once this occurs, continued operation of TARS will no longer be necessary and the system will be decommissioned.
In sum, the FCC found that the cost and disruption associated with rebanding TARS outweighs the potential benefit, particularly in light of the fact that TARS is only scheduled to be active until 2013. The FCC also found that allowing TARS to continue operation on its current channels with full interference protection will serve the public interest.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino.