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. 13|| March 31, 2010 |
INSIDE THIS ISSUE
- NBP proposals for D Block, AWS spectrum bands.
- FCC proposes to extend jurisdictional separations freeze for one year.
- Joint Board seeks comment on certain interim proposals.
- FCC seeks comments on proposed changes to “ex parte” rules.
- FCC seeks comments on proposed changes to procedural rules.
NBP Proposals For D Block, AWS Spectrum Bands
The FCC’s National Broadband Plan (NBP) makes a number of proposals regarding wireless communications. Here we address only two: the recommendations regarding the Upper 700 MHz D Block, and the Advanced Wireless Service (AWS) bands.
Based on the Plan’s recommendations, there should be multiple broadband spectrum auctions held within the next few years (including the D Block and AWS 2 and 3 band auctions), with at least one occurring perhaps as early as next year. Our clients will want to make sure that the license sizes and other auction rules are designed to allow realistic participation by small businesses, including rural telephone carriers. Our clients may also want to advocate that equipment developed for the D Block and the AWS bands be subject to requirements that will prevent some of the issues facing the 700 MHz A Block winners.
D Block: The Task Force recommends that the FCC auction the 10 megahertz Upper 700 MHz D Block for commercial use that is technically compatible with public safety broadband services.
According to the Task Force, the FCC should auction the Upper 700 MHz D Block for commercial use with limited technical requirements that would ensure technical compatibility between the D Block and the adjacent public safety broadband spectrum block and would enable, but not obligate, the licensee to enter into a spectrum-sharing partnership with the neighboring Public Safety Broadband Licensee (PSBL). Due to its favorable propagation characteristics and the emergence of a 4G technology ecosystem in the 700 MHz band, the D Block is likely to have high value for the delivery of commercial mobile broadband services. The recommendation is intended to unlock this value while supporting the simultaneous development of public safety broadband capability through equipment development, roaming and priority access.
The D Block consists of 10 megahertz (2x5 megahertz) that did not receive a winning bid in the 700 MHz auction held in 2008. The original rules required the D Block licensee to enter into a public-private partnership with the PSBL to build a public safety broadband network. The absence of meaningful bidding activity indicated that the public safety obligations as designed were not commercially viable. The approach recommended in Chapter 16 would allow for a voluntary partnership between public safety broadband spectrum holders and commercial partners, including the D Block licensee(s). Limited technical requirements on the D Block are supposed to help maximize the number of partners available to public safety, while also maximizing the commercial potential of the spectrum.
Specifically, the Task Force believes the D Block should be auctioned with the following rules:
- The D Block licensee(s) must use a nationally standardized air interface. The emerging consensus in the public safety community is that the Long Term Evolution (LTE) family of standards is most appropriate. A standardized air interface will ensure that the D block will be technically capable of supporting roaming and priority access by public safety users of the neighboring public safety broadband block.
- The FCC should initiate a proceeding to enable authorized state, local and federal public safety users to have rights to roaming and priority access for broadband service on commercial networks subject to compensation, as described in Chapter 16. Before the D Block is auctioned, it must be clear that D Block licensee(s) are required to provide such roaming and priority access to public safety users.
- D Block licensee(s) must develop and offer devices that operate both on the D Block and the neighboring public safety broadband block, with a path toward scale production of components
and devices that can utilize both blocks, in order to stimulate the public safety broadband equipment “ecosystem.
- The D Block license should be subject to commercially reasonable buildout requirements. The Commission should also consider the use of incentives to promote additional deployment by the D Block licensee(s) for the benefit of rural citizens and for public safety agencies.
AWS Bands: The Task Force recommends that the FCC make up to 60 megahertz of spectrum available by auctioning Advanced Wireless Services (AWS ) bands, including, if possible, 20 megahertz from federal allocations.
The FCC should move expeditiously to resolve the future of the spectrum already allocated for AWS. The AWS-2 and AWS-3 allocations consist of the following bands:
- AWS-2 “H” Block. Total of 10 megahertz at 1915–1920 MHz paired with 1995–2000 MHz.
- AWS-2 “J” Block. Total of 10 megahertz at 2020–2025 MHz paired with 2175–2180 MHz.
- AWS-3 Band. Twenty megahertz unpaired at 2155–2175 MHz.
The FCC proposed rules for AWS-2 spectrum in 2004 and sought comment on AWS-3 spectrum in 2007. Potential synergies exist between the AWS-3 band and spectrum currently allocated to federal use at 1.7 GHz. There are a number of countries that have allocated spectrum in the 1710–1780 MHz band for commercial use and devices already exist in the international market for that spectrum. Consequently, pairing the AWS-3 band with spectrum from the 1755–1780 MHz band has the potential to bring benefits of a global equipment ecosystem to this band.
NTIA, in consultation with the FCC, should conduct an analysis, to be completed by October 1, 2010, of the possibility of reallocating a portion of the 1755–1850 MHz band to pair with the AWS-3 band. NTIA has commented that, “the Administration supports exploring both commercial and government spectrum available for reallocation. If there is a strong possibility of reallocating federal spectrum to pair with the AWS-3 band, the FCC, in consultation with NTIA, should immediately commence reallocation proceedings for the combined band. If, at the end of this inquiry, there is not a strong possibility of reallocation of federal spectrum, the FCC should proceed promptly to adopt final rules in 2010 and auction the AWS-3 spectrum on a stand-alone basis in 2011.
The AWS-2 “J” block also has potential synergies with AWS-3 and with the adjacent MSS S-Band. If developments in those other bands warrant, the FCC should integrate the J Block into one or the other of the band plans in order to maximize the broadband potential of the spectrum. For example, it may make sense to group the J Block with contiguous S-Band spectrum if the AWS-3 band is paired with federal spectrum, or to group the J Block with the AWS-3 band if there is no reallocation of federal spectrum.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell.
FCC Proposes To Extend Jurisdictional Separations Freeze For One Year
The FCC has issued a Notice of Proposed Rulemaking (NPRM), seeking comment on whether it should extend for one year, until June 30, 2011, the current freeze of jurisdictional separations category relationships and cost allocation factors in Part 36 of our rules. Jurisdictional separations is the process by which incumbent local exchange carriers (LECs) apportion regulated costs between the intrastate and interstate jurisdictions. Historically, one of the primary purposes of the separations process has been to prevent incumbent LECs from recovering the same costs in both the interstate and intrastate jurisdictions.
In this NPRM, the FCC notes that although the Federal-State Joint Board on Separations is in the process of preparing a recommended decision, the scope and complexity of the referral makes it unlikely that the process will be completed prior to the current expiration of the freeze on June 30, 2010. As the Commission has previously observed, if the Commission does not extend the separations freeze and instead allows the earlier separations rules to return to force, incumbent LECs would be required to reinstitute their separations processes that have not been used since the inception of the freeze almost nine years ago.
The FCC seeks comment on whether incumbent LECs would have adequate time to reinstitute their separations processes prior to the expiration of the freeze on June 30, 2010, and whether such reinstitution would constitute an undue burden. The FCC seeks comment on the effect its proposal to extend the freeze will have on small entities, and whether any rules that we adopt should apply differently to small entities. The FCC seeks comment on the costs and burdens of an extension on small incumbent LECs and whether the extension would disproportionately affect specific types of carriers or ratepayers.
The FCC tentatively concludes that extending the jurisdictional separations freeze on an interim basis provides incumbent LECs a reasonable method to apportion costs.
The FCC notes that, as the Supreme Court found in Smith v. Illinois, extreme precision is not required in the separations process. The FCC tentatively concludes that the extended freeze will be implemented as described in the 2001 Separations Freeze Order. Specifically, price cap carriers will use the same relationships between categories of investment and expenses within Part 32 accounts and the same jurisdictional allocation factors that have been in place since the inception of the current freeze on July 1, 2001.
Rate-of-return carriers will use the same frozen jurisdictional allocation factors, and will use the same frozen category relationships if they had opted previously to freeze those. The FCC seeks comment on these tentative conclusions.
Comments in this CC Docket No. 80-286 proceeding will be due 14 days after publication of the item in the Federal Register, and replies will be due seven days thereafter.
Joint Board Seeks Comment On Certain Interim Proposals
In a related matter, the FCC’s Federal-State Joint Board on Separations seeks comment on a proposal by the State Members of the Joint Board for an interim adjustment of separations allocation factors and category relationships pending comprehensive separations reform. In addition to general comments regarding the State Members’ Interim Proposal, the Joint Board seeks specific comment regarding:
1. whether and to what extent the State Members’ Interim Proposal would improve the accuracy of the apportionment of regulated costs between the intrastate and inter-state jurisdictions;
2. whether and to what extent any refinements to the State Members’ Interim Proposal or alternatives to the State Member proposal should be made in light of the recently released recommendations in the National Broadband Plan;
3. whether the procedures set forth in the State Members’ Interim Proposal raise implementation or operational issues that would have a significant adverse impact on carriers;
4. the time-frame in which companies could reasonably be expected to comply with the procedures in the State Members’ Interim Proposal;
5. the impact on the universal service fund and other federal programs expected to result from the potential changes in the ratio of intrastate to interstate costs; and
6. what changes in rules, regulations, or policies affecting jurisdictional separations, rate regulation, intercarrier compensation, or universal service would be necessary to implement the State Members’ Interim Proposal. Please be as specific as possible.
Further, the Joint Board seeks comment on issues related to comprehensive permanent separations reform referred to the Joint Board by the Commission in the 2009 Separations Extension Freeze Order. Commenters are encouraged to submit reform proposals as part of their comments and to address whether and how separations reform should be coordinated with potential reforms in broadband policy. Commenters are also instructed to clearly delineate whether their comments refer to the State Member Interim Proposal, long-term reform, or both. Comments in this CC Docket No. 80-286 proceeding are due by April 29, and replies are due by June 1.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC SEEKS COMMENTS ON PROPOSED CHANGES TO “EX PARTE” RULES: The FCC has established a comment cycle on its Notice of Proposed Rulemaking (NPRM) requesting comment on proposed changes to its ex parte rules (BloostonLaw Telecom Update, February 24). The ex parte process allows parties in most Commission proceedings to speak directly (or have written communications) with Commission staff and decision makers, providing a way to have an interactive dialogue that can root out areas of concern, address gaps in understanding, identify weaknesses in the record, discuss alternative approaches, and generally lead to more informed decision-making. Oral ex parte presentations are by their nature inaccessible to people who are not present at the meeting unless the presentations are publicly documented in some way. In this proceeding, the FCC seeks comment on proposals to improve its ex parte and other procedural rules to make the Commission's decision-making processes more open, transparent, and effective. Comments in this GC Docket No. 10-43 proceeding are due May 10, and replies are due June 8. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
FCC SEEKS COMMENTS ON PROPOSED CHANGES TO PROCEDURAL RULES: In conjunction with the Ex Parte NPRM above, the FCC has set comment dates for its companion Notice of Proposed Rulemaking on proposed revisions to the Commission's procedural rules and organizational rules (BloostonLaw Telecom Update, February 24). The proposals are intended to increase efficiency and modernize FCC procedures, enhance the openness and transparency of Commission proceedings, and clarify certain procedural rules. The FCC seeks comment on the proposed rule language, as well as the other proposals contained in this document. Comments in this GC Docket No. 10-44 proceeding are due May 10, and replies are due June 8. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
COMMENTS SOUGHT ON ALLOWING PUBLIC TO USE E-RATE SCHOOLS FOR INTERNET ACCESS AFTER HOURS: The FCC has established a comment cycle for its Notice of Proposed Rulemaking (NPRM), accompanying its order to enable schools that receive funding from the E-rate program (more formally, the schools and libraries universal service support program) to allow members of the general public to use the schools’ Internet access during non-operating hours. The Commission waived, on its own motion, through funding year 2010 (which ends June 30, 2011), rules that currently discourage public use of resources funded under the E-rate program. In the NPRM, the Commission seeks comment on revising its rules to make this change permanent. This change will leverage universal service funding to serve a larger population at no increased cost to the E-rate program. The general public will be able to use the Internet access already present in schools, at the schools’ discretion, for purposes such as job searches and applications, digital literacy programs, and online access to governmental services and resources. Comments in this CC Docket No. 02-66 proceeding are due April 5, and replies are due April 19. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC SEEKS COMMENT ON EAS RULE CHANGES TO ACCOMMODATE COMMON ALERTING PROTOCOL: In its Emergency Alert System rules, the FCC mandated that all EAS participants must accept Common Alerting Protocol (CAP)-based EAS alerts 180 days after the date on which the Federal Emergency Management Agency (FEMA) publishes the applicable technical standards for its adoption of CAP as the basis for FEMA-generated alerts. FEMA has announced that it may adopt a version of CAP as early as the third quarter of 2010. Such action would trigger the Commission’s 180 day requirement.
CAP is an open, interoperable, data interchange format for collecting and distributing all-hazard safety notifications and emergency warnings to multiple information networks, public safety alerting systems, and personal communications devices. In conjunction with appropriate alert transmission architectures, CAP will allow FEMA, the National Weather Service (NWS), a State Governor, or any other authorized initiator of a public alert and warning to automatically format and geo-target a particular alert simultaneously to the public over multiple media platforms such as television radio, cable, cell phones and electronic highway signs. CAP will also allow an alert initiator to send alerts specifically formatted for people with disabilities and for non-English speakers.
The Commission’s EAS rules were not written to accommodate a CAP-based EAS and will likely require significant revision or replacement once CAP is adopted and implemented, even if CAP-formatted messages continue to be utilized in connection with the alert transmission architectures of the current or “legacy” EAS. In advance of any rulemaking that may need to be conducted by the Commission once FEMA announces its adoption of standards for CAP, the Public Safety and Homeland Security Bureau (PSHSB) seeks informal comment regarding what, if any, Part 11 changes might be necessitated by the introduction of CAP. The FCC asks commenters to identify, with specificity, those rules that need to be modified or deleted, and to suggest new rules for Part 11 — or a new rules framework to replace Part 11 rules. Accordingly, commenters should feel free to address the entirety of Part 11 rules in this regard. Comments in this EB Docket No. 04-296 proceeding will be due 30 days after publication of the item in the Federal Register, and replies will be due 30 days thereafter. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell.