BloostonLaw Telecom Update
Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP
[Portions reproduced here with the firm's permission.]
| Vol. 13, No. 24 || June 9, 2010 |
CALL FOR ACTION
Rural Wireless Carriers Urged to Support Automatic Roaming Obligation for Commercial Wireless Carriers; Comments Due Monday, June 14th
As we recently reported (BloostonLaw Telecom Update, April 21, April 28) the FCC has adopted an Order on Reconsideration and Second Further Notice of Proposed Rulemaking in its CMRS roaming docket (WT Docket No. 05-265). The Further Notice solicits comment on broadband roaming and thus provides our clients with an opportunity to rectify the broadband data roaming situation. We have prepared comments that urge the FCC to adopt a rule for broadband data roaming that applies to all commercial services (i.e., not just CMRS) and that largely mirrors the circuit switched data and voice roaming rule. We also ask the FCC to ensure carriers offer reasonable and nondiscriminatory broadband data roaming rates, so that rural carriers can obtain sufficient revenues from the provision of broadband data roaming service to more fully develop their broadband data networks and capabilities. By way of background, the current CMRS automatic roaming rule does NOT include non-interconnected services, such as wireless broadband internet access services. Many of our firm’s clients have complained about the difficulty they have had in securing broadband data roaming arrangements with nationwide carriers. Indeed, with consumers increasingly expecting seamless access to broadband data, the lack of roaming options has left small and mid-sized carriers at a significant competitive disadvantage. Access to broadband data roaming will only become more important with the build out of wireless 4G networks.
We are circulating draft comments this week and urge broad participation to ensure that the Commission’s staff gives due consideration to the viewpoint of rural carriers. We are holding the cost to $375 per company. Please let us know if your company wishes to participate.
BloostonLaw contacts: Hal Mordkofsky, Cary Mitchell, and Bob Jackson.
INSIDE THIS ISSUE
- FWCC asks FCC to improve interference protection in 3650-3700 MHz band.
- FWCC also seeks backhaul channel flexibility for mobile broadband services.
- FCC provides new BRS licensees 4 years to meet construction requirement.
- Deadline for annual Lifeline surveys and certifications is August 31.
- FCC finds that AMTS service is subject to USF contributions.
FWCC Asks FCC To Improve Interference Protection In 3650-3700 MHz Band
The Fixed Wireless Communications Coalition (FWCC) has filed a rulemaking petition asking the FCC to improve interference protection in the 3650-3700 MHz band. Specifically, FWCC is asking the Commission to provide licensees and end users with greater assurance that their investment will not be jeopardized by unexpected interference over which they have no control and no recourse. On the other hand, the Coalition does not seek the high levels of protection available with mandatory prior frequency coordination, as under Part 101 of the FCC’s rules. FWCC prefers the speed and flexibility built into the present 3650-3700 MHz rules. Without seeking to disturb that basic scheme, it asks only that the Commission rephrase certain advisory language into mandatory terms. Doing so will clarify the rights of licensees while retaining all the benefits of the present rules, FWCC said. Statements opposing or supporting FWCC’s RM-11604 Petition for Rulemaking are due within 30 days of the June 4 notice date (i.e., by July 6).
(FWCC is a coalition of microwave equipment manufacturers, licensees of terrestrial fixed Microsystems and their associations, communications service providers and their associations. The membership also includes railroads, public utilities, petroleum and pipeline entities, public safety agencies, cable TV and private cable providers, backhaul providers, and/or their respective associations.)
In its petition, FWCC said that service rules for the 3650-3700 MHz band uniquely combine much of the flexibility of unlicensed operation with some of the interference protection associated with traditional licensing:
- Each user must obtain a non-exclusive, nationwide license.
- Prior to operating a fixed or base station, the licensee must register it in a Commission-maintained database.
- Before doing so, the licensee is asked to examine existing entries and make every effort to ensure that the new station will operate at a location and under technical parameters that minimize the potential to cause and receive interference to and from previously registered users.
- As a further (and important) precaution, stations are required to incorporate a contention-based protocol that automatically facilitates the sharing of frequencies.
- If interference occurs nonetheless, all affected licensees, whether causing or suffering harmful interference, are expected to cooperate and to resolve the problem by mutually satisfactory arrangements.
In responding to several reconsideration petitions, FWCC said, the Commission turned aside requests for conventional, exclusive licensing and left the regulatory scheme intact. The FCC also rejected several “modifications that would effectively infuse the non-exclusive licensing scheme with some of the rights and protections of a traditional, exclusively licensed regime.”
NEED FOR RULE CHANGE
FWCC said its petition was prompted, in part, by the decision of the Wireless Telecommunications Bureau in World Data PR Inc., the only published interpretation to date of the 3650-3700 MHz interference protection rules.
According to FWCC, Neptuno Networks, the petitioner in the case, complained of harmful interference from another licensee in the band, World Data PR Inc. Neptuno alleged that World Data operated transmitters without first checking the database, failed to register its own transmitters in the database, failed to coordinate its operations with Neptuno, and failed to cooperate in resolving the harmful interference. World Data countered that it had indeed consulted the database, and had taken certain technical steps toward sharing the band, but it did not seriously dispute Neptuno’s remaining allegations, FWCC said.
The Bureau denied Neptuno’s requests for relief. Its decision rejected the notion of a first-in-time priority among licensees, reiterated the absence of a coordination requirement, and emphasized all licensees’ equal rights to the spectrum, with a mutual obligation to cooperate and avoid harmful interference to one another, FWCC said.
FWCC said it takes no position on whether the Bureau’s reading is consistent with the terms of the rule. But it noted that the Bureau’s interpretation of terms such as (1) “Licensees should examine [the registration] database before seeking station authorization, and [should] make every effort” to minimize interference; and (2) “Licensees of stations suffering or causing harmful interference are expected to cooperate and resolve this problem by mutually satisfactory arrangements” allows for the construction of systems that cause harmful interference.
PROPOSED RULE CHANGE
What FWCC wants the Commission to do is to convert the advisory language in the rules into mandatory requirements:
“Licensees must examine this database before seeking station authorization, and must make every effort to ensure that their fixed and base stations operate at a location, and with technical parameters, that will minimize the potential to cause and receive interference. Licensees of stations suffering or causing harmful interference must cooperate in good-faith to resolve this problem by mutually satisfactory arrangements.”
FWCC Also Seeks Backhaul Channel Flexibility For Mobile Broadband Services
FWCC has also filed a rulemaking petition asking the FCC to allow an operator to combine adjacent 30 and 40 MHz channels in the lower 6 and 11 GHz bands and treat them as a single 60 or 80 MHz channel, respectively, to promote high-capacity backhaul in support of mobile broadband services. Statements opposing or supporting FWCC’s Backhaul Petition for Rulemaking (RM RM-11602) are also due within 30 days of the June 4 notice date (i.e., by July 6).
According to FWCC, the Commission's National Broadband Plan (NBP) predicts steep growth in demand for mobile broadband capacity; data points include a 268% compound annual growth rate in AT&T mobile data traffic (driven in part by the iPhone), and a projected 44-fold increase in North American wireless network traffic between 2009 and 2014. FWCC said these increases in mobile broadband use will inevitably raise demand for point-to-point microwave backhaul, and a shortage of backhaul capacity can inhibit speed at the handset, even if adequate last-mile spectrum is available. The coalition notes that the NBP discusses regulatory changes needed to improve flexibility and cost-effectiveness in deploying wireless backhaul, but an important element is missing: The ongoing shift in end-user activity from voice and low-speed data (such as text and email) to high-speed data (such as video and web browsing) will add to the loads on individual backhaul links.
FWCC said the Commission's Rules limit link capacity by capping channel bandwidth. Accordingly, FWCC said: “The workhorse bands for long backhaul links, the Lower 6 GHz band (5925-6425 MHz) and the 11 GHz band (10.7-11.7 GHz), have maximum authorized bandwidths of 30 MHz and 40 MHz, respectively. Operators are required to carry at least 89.4 megabits/second (30 MHz channels at 11 GHz) or 134.1 Mb/s (30 MHz channels at 6 GHz and 40 MHz channels at 11 GHz). Most operators do better, typically around 155 Mb/s at 6 GHz. But there is a practical maximum on a single polarization of about 180-200 Mb/s. That is generally adequate for voice and low-speed data services. The strong growth in mobile broadband, however, will soon push backhaul requirements beyond those numbers, toward 360 Mb/s per channel. Achieving that capacity under the present rules would entail running separate signals on separate 30 or 40 MHz channels. That requires complex electronics to coordinate the transmissions, with the additional disadvantage of intermodulation products due to multiple RF signals sharing the same antenna. These show up as unwanted emissions in other channels.”
To help meet emerging broadband backhaul needs, FWCC is asking the Commission to amend the rules to allow an operator to combine adjacent 30 and 40 MHz channels and treat them as a single 60 or 80 MHz channel, respectively. “This simplifies the electronics, lowers costs, improves reliability, and eliminates intermodulation issues. We are not aware of any negative effects on any spectrum user. Combining channels also puts into productive use the frequency space near the adjacent channel edges, where signal must otherwise be attenuated,” FWCC said. “Permitting Fixed Service operators to combine adjacent 30 and 40 MHz channels in the Lower 6 and 11 GHz bands will promote high-capacity backhaul in support of mobile broadband services, with no downside to any spectrum user,” FWCC said.
The FCC also seeks comments on the following FWCC rulemaking petition, with the same comment deadline (i.e., July 6):
RM-11606. Federal and non-Federal sharing of the 7125-8500 MHz band. The FWCC is asking the Commission to launch a rulemaking, in collaboration with National Telecommunications and Information Administration (NTIA), on shared non-Federal fixed use in the 7125-8500 MHz band, particularly for wireless broadband backhaul. FWCC has selected this band because it believes it is the only spectrum available for this purpose.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell.
FCC Provides New BRS Licensees 4 Years To Meet Construction Requirement
The FCC has adopted a Third Report and Order, in which it provides Broadband Radio Service (BRS) licensees that are awarded new initial licenses on or after November 6, 2009, four years from the date of initial license grant to meet the Commission’s construction requirement. In addition, the FCC revised its construction rule to conform the text to previous decisions made in this proceeding. The FCC said these revisions will provide greater clarity to BRS and Educational Broadband Service (EBS) licensees in complying with the construction requirement. While new licensees get the benefit of the four-year build out period, existing BRS licensees must still meet the May 1, 2011 deadline for demonstrating substantial service.
When adopting performance obligations for licensed services, the Commission said its general practice has been to require that such obligations be met at a deadline measured in some period of time from the issue of the license (e.g., a licensee may have to demonstrate substantial service within five years from issue of the license). Under the rules formerly applicable to the Multipoint Distribution Service (MDS), which became the BRS in 2004, holders of incumbent BRS licenses were required to complete construction within 12 months of the date of license grant. These former rules also provided that “within five years of the grant of a BTA [Basic Trading Area] authorization, the authorization holder must construct MDS stations to provide signals . . . that are capable of reaching at least two-thirds of the population of the applicable service area.” When the Commission sought comment on the rules for BRS and EBS in 2003, it suspended performance requirements applicable to the band. Subsequently, in April 2006, the Commission adopted May 1, 2011 as the uniform date by which all BRS BTA authorization holders and incumbent BRS and EBS licensees must demonstrate substantial service.
On April 24, 2009, the FCC announced Auction 86, in which it intended to auction 78 BRS BTA licenses, 75 of which were originally offered in Auction 6 and became available as a result of default, cancellation, or termination. Three additional licenses were created by the Commission in the BRS/EBS Fourth MO&O, when the Commission amended its rules to establish three Gulf of Mexico Service Areas for BRS. The auction of these 78 BRS licenses began on October 27, 2009, and on November 6, 2009, the Wireless Telecommunications Bureau announced the closing of the auction. Under the rules adopted by the Commission in 2006, winners of licenses in Auction No. 86 would be required to demonstrate substantial service on or before May 1, 2011. Comments to the Auction Public Notice raised the issue of whether the May 1, 2011 substantial service deadline should be applied to winners of licenses in Auction 86. Thus, the Commission released the BRS/EBS Third Further Notice of Proposed Rulemaking (FNPRM) seeking comment on this issue.
In the Third Report and Order, the FCC adopted its proposal to require a demonstration of substantial service within four years for new initial BRS licenses. It believes that the substantial service deadline should ensure that spectrum is promptly placed in use while allowing licensees a reasonable opportunity to construct. The FCC said it agrees with most commenters that, with respect to new initial BRS licenses, a four year term strikes the appropriate balance in serving these goals. The FCC recognizes that the May 1, 2011, deadline adopted in 2006 does not provide adequate time to build out new initial BRS licenses, particularly since licenses for the recently-completed Auction 86 have not yet been issued. However, the fact that existing licensees are rapidly deploying service in this band demonstrates that new licensees also should be able to deploy rapidly. WCA’s representations concerning the availability of equipment and the nearly complete status of the transition to the new band plan provide further assurance that new licensees can deploy service in a relatively expedited manner. Moreover, given the high demand for wireless broadband services spectrum noted by the parties, the FCC believes it is appropriate to set a relatively aggressive buildout schedule to ensure that licensees promptly place the spectrum in use and provide advanced broadband services.
In light of these considerations, the FCC rejected arguments from commenters that six years is a more appropriate time frame for demonstrating substantial service. The FCC said it believes that allowing six years would unduly delay placing this spectrum in use. Most significantly, the FCC said the argument that additional time is needed because the wireless broadband industry is in a “transitional state” is contradicted by the rapidly increasing number of deployments in the band. The FCC also disagreed with the argument that BRS is similarly situated to LMDS, WCS, and AWS. Those services faced equipment, technical, or federal relocation issues that made buildout more difficult and that BRS does not face. While the FCC agreed that some of the new licenses will be highly encumbered, it said bidders for those licenses were warned about the existence of incumbent licenses and were directed to be familiar with the status of incumbent operations. Furthermore, the Commission said it has established a separate substantial service safe harbors for heavily encumbered licenses. Moreover, as explained in the BRS/EBS 3rd FNPRM, when the Commission adopted May 1, 2011 as the demonstration of substantial service deadline, the FCC said it gave current BRS licensees five years to demonstrate substantial service and transition to the new band plan and technical rules. At this time, the FCC said, the transition of the 2.5 GHz band is nearly complete.
BloostonLaw contacts: Hal Mordkofsky and Cary Mitchell.
DEADLINE FOR ANNUAL LIFELINE SURVEYS & CERTIFICATIONS IS AUGUST 31: The FCC has issued a reminder that each year, eligible telecommunications carriers (ETCs) are required to verify the continued eligibility of a statistically valid sample of their Lifeline subscribers. Under the terms of the Lifeline Order, States that have their own state-based low-income programs are required to establish state-specific verification procedures. These state procedures should include methods that ETCs should use to verify continued eligibility and should specify to whom the results should be submitted. States that do not have state-based low-income programs are designated “federal default states.” ETCs in federal default states must verify annually the continued eligibility of a statistically valid sample of their Lifeline subscribers. The FCC’s public notice “reminder” notes that an ETC in a state with its own state-based low-income program must submit a certification, signed by an officer of the company, to the Universal Service Administrative Company (USAC) by August 31, 2010, and ensure that USAC receives the certification by that date, attesting that the ETC has complied with the state verification procedures. In addition, all ETCs in federal default states must submit their annual Lifeline verification survey results to USAC and must ensure that these results are received by USAC by August 31, 2010. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC FINDS THAT AMTS SERVICE IS SUBJECT TO USF CONTRIBUTIONS: The FCC has denied a request by Maritime Communications/Land Mobile, LLC, seeking reconsideration of the Wireline Competition Bureau’s decision to deny a request for review Maritime had filed on behalf of Waterway Communication System, LLC, and Mobex Network Services, LLC regarding Universal Service Fund (USF) contributions. Under Section 254(d) of the Communications Act, every telecommunications carrier that provides interstate telecommunications services is required to contribute to the USF. This includes commercial mobile radio service (CMRS) providers. Between 2001 and 2006, Watercom and Mobex made universal service contributions based on, among other things, revenues from their provision of Automated Maritime Telecommunications Service (AMTS). AMTS is a CMRS usually interconnected to the public switched telephone network that offers telecommunications to tugs, barges, and other commercial vessels on inland waterways. On May 8, 2006, Maritime, as the successor in interest of Watercom and Mobex, filed a demand for refund with the Universal Service Administrative Company (USAC) regarding the contributions Watercom and Mobex had made based on their AMTS revenues. USAC denied Maritime’s demand on November 15, 2006. On January 9, 2007, Maritime filed on behalf of Watercom and Mobex a request for review of USAC’s decision. The Bureau denied Maritime’s request for review on August 26, 2008, in the Watercom/Mobex Order. Accordingly Maritime filed its instant petition for reconsideration, in which it argued that it could not offer AMTS to a substantial portion of the public and thus should have been exempt from contribution obligations; and that Watercom and Mobex could not have been classified as CMRS operators under the Act. In denying Maritime’s petition, the FCC said the question of whether an offering is a telecommunications service that is subject to universal service assessments under the Act, does not turn upon whether a substantial portion of the public desires to use a particular service; rather, the question is whether the provider offers its service indiscriminately to all users that might seek to purchase it. Accordingly, because Maritime offered its service indiscriminately, the FCC concluded that the Bureau correctly held in the Watercom/Mobex Order that Watercom and Mobex were telecommunications carriers required to contribute to the universal service fund. Moreover, Watercom and Mobex would be required to contribute even if they had offered AMTS on a private-carriage basis. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, John Prendergast, and Richard Rubino.
CONSUMER CELLULAR FORBEARANCE PETITION EXTENDED UNTIL SEPTEMBER 28: The FCC has extended by 90 days the date by which Consumer Cellular, Inc.’s forbearance petition would be deemed granted without action by the Commission. On June 30, 2009, Consumer Cellular filed a petition requesting that the Commission forbear from applying the requirements of section 214(e)(1)(A) of the Act, to the extent that those provisions require a common carrier designated as an eligible telecommunication carrier (ETC) to offer services supported by the federal universal service support mechanisms using either its own facilities or a combination of its own facilities and another carrier’s services. As a result, the deadline in this CC Docket No. 96-45 proceeding has been extended until September 28. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
RUS PROPOSES TO AMEND REGULATIONS FOR BURIED PLANT: The Rural Utilities Service (RUS) has proposed to amend its regulations on Telecommunications Standards and Specifications for Materials, Equipment and Construction, by revising RUS Bulletin 1753F-150, Specifications and Drawings for Construction of Direct Buried Plant (Form 515a). The revised specification will include new construction units for Fiber-to-the-Home, remove redundant or outdated requirements, and simplify the specification format. Comments in this Docket No. RUS-2010-Telecom-0003 proceeding are due August 9. RUS issues contracts, standards and specification for construction of telecommunications facilities financed with RUS loan funds. RUS is proposing to revise the specifications for buried plant construction contained in RUS Bulletin 1753F-150 (RUS Form 515a). The current outside plant specifications are used by borrowers to secure the services of a contractor for the construction of telecommunications facilities. Because of Fiber-to-the-Home construction and advancements made in construction installation methods and materials, the present specifications have become outdated. To allow borrowers and contractors to take advantage of these improved construction installation methods and materials, the current specification will be revised. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC SETS COMMENT DATES FOR FNPRM ON ELIGIBILITY OF E-RATE PRODUCTS & SERVICES: The FCC has set comment dates for its Further Notice of Proposed Rulemaking (FNPRM) addressing matters related to the eligibility of products and services under the schools and libraries universal service support mechanism, also known as the E-rate program. Comments in this CC Docket No. 02-6 proceeding are due July 9, and replies are due July 26. Specifically, this FNPRM proposes that the following services should not be eligible for funding under the E-rate program—separately priced firewall services, anti-virus/anti-spam software, scheduling services, wireless Internet access applications, and web hosting. The FCC proposes to revise its rules to establish that the Commission should not be required to list individual products and services (e.g., voice mail) in the rules, but that such products and services will be listed in the Eligible Services List (ESL). The FCC proposes to require the Universal Service Administrative Company (USAC) to submit any proposed changes to the ESL to the Commission no later than March 30 of each year. Finally, the FCC proposes to eliminate the requirement that the ESL be released by public notice. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC SETS COMMENT CYCLE FOR NPRM ADDRESSING POTENTIAL E-RATE REFORMS: The FCC has established a comment cycle for its Notice of Proposed Rulemaking (NPRM) regarding several potential reforms to the E-rate program that would cut red tape by eliminating rules that have not effectively served their intended purpose, while continuing to protect against waste, fraud, and abuse. Comments in this CC Docket No. 02-6 proceeding are due July 9, and replies are due July 26. The Commission also seeks comment on how to provide stability and certainty for the funding of internal connections that are necessary to deliver higher bandwidth services to the classroom and how to expand access to funding for internal connections for schools and libraries serving impoverished populations. Finally, the Commission seeks comment on indexing the funding cap to inflation, which would make additional funding available to support current and new services to deliver the full benefits of the Internet to all. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
This newsletter is not intended to provide legal advice. Those interested in more information should contact the firm.