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. 47|| December 1, 2010 |
HAC Reporting Deadline Is January 17, 2011
The next Hearing Aid Compatible (HAC) reporting deadline for all cellular, PCS, AWS and other digital commercial mobile radio service (CMRS) providers (now expanded to also include carriers that provide service using AWS-1 spectrum, and resellers of cellular, broadband PCS and/or AWS services) is January 17, 2011. The information provided in reports must be current through the end of the calendar month preceding the filing date (i.e., through December 31), and include historical data for the period since the entity filed its last report. The January 2011 HAC reports must include historical (month-to-month) data relating to compliant and noncompliant handset models for the 2010 reporting period, i.e., January–December 2010 (NOTE: Our last Update erroneously referenced 2008 instead of 2010).
We have prepared a HAC reporting template to assist our clients in keeping track of their HAC handset offerings, and other regulatory compliance efforts. ALL SERVICE PROVIDERS SUBJECT TO THE COMMISSION’S HAC RULES – INCLUDING COMPANIES THAT HAVE HERETOFORE QUALIFIED FOR THE DE MINIMIS EXCEPTION – MUST PARTICIPATE IN RECORDKEEPING AND ANNUAL HAC REPORTING. To the extent that your company is a provider of broadband PCS, cellular and/or interconnected SMR services, if you are a CMRS reseller and/or if you have plans to provide CMRS using newly licensed (or partitioned) AWS or 700 MHz spectrum, you and your company will need to be familiar with the Commission’s revised rules. The FCC’s HAC rules increased the required number of compliant handsets starting last year, and will continue to require the addition of compliant handsets through next year. It is important that your report show that you offered the correct number (or %) of compliant HAC devices during each month of the year. The FCC has been very active in fining licensees for HAC violations, even for short periods of non-compliance. BloostonLaw contacts: Cary Mitchell, and Bob Jackson.
INSIDE THIS ISSUE
- FCC to explore wireless access to TV spectrum; improved research licenses.
- FCC puts net neutrality, next-generation 9-1-1 on December 21 agenda.
- FCC sets comment dates for “bill shock” proposal.
- FCC promises to open “9-1-1” to texting.
- FCC extends deadline to Sept. 30, 2011, to comply
FCC To Explore Wireless Access To TV Spectrum; Improved Research Licenses
At its November 30 open meeting, the FCC launched three proceedings on spectrum-related issues: (1) a Notice of Proposed Rulemaking (NPRM) seeking comment on rules to facilitate the most efficient use of the UHF and VHF TV bands, and proposing that wireless broadband providers have equal access to TV spectrum via auctions; (2) an NPRM on steps to promote innovation and efficiency in spectrum use under Part 5 Experimental Radio Service (ERS); and (3) a Notice of Inquiry (NOI) seeking comment on promoting more intensive and efficient use of the radio spectrum.
In the first item, the FCC adopted an NPRM proposing that wireless broadband providers have equal access to television broadcast frequencies that could become available in spectrum auctions. The NPRM seeks comment on establishing new allocations for both fixed and mobile wireless services in the TV broadcast bands. The NPRM also explores enabling TV stations to voluntarily combine their operations and distinct programming lineups on a single TV channel. The Notice requests comment on the proposed rules that would enable TV broadcasters to opt to share channels by further tapping the technical capabilities that became available following the nation’s transition to digital television (DTV) in 2009.
Finally, the NPRM seeks comment on steps that would improve TV reception on the VHF channels (2-13), such as by increasing transmitting power and establishing minimum performance standards for indoor antennas. These improvements could provide better VHF reception for consumers and encourage broadcasters to use valuable VHF channels in the future.
At the same time, the approach the FCC is proposing is consistent with the goal set forth in the National Broadband Plan to repurpose up to 120 megahertz from the broadcast television bands for new wireless broadband uses through, in part, voluntary contributions of spectrum to an incentive auction. Reallocation of this spectrum as proposed, the FCC said, will provide the necessary flexibility for meeting the requirements of these new applications.
The specific bands under consideration are the low VHF spectrum at 54-72 MHz (TV channels 2-4) and 76-88 MHz (TV channels 5 and 6), the high VHF spectrum at 174-216 MHz (TV channels 7-13), and the UHF bands at 470-608 MHz (TV channels 14-36) and 614-698 MHz (TV channels 38-51); for purposes of this article, we will refer to this spectrum as the “U/V Bands.” The Notice proposes three actions that will establish the underlying regulatory framework to facilitate wireless broadband uses of the U/V Bands, while maintaining current license assignments in the band. First, the FCC is proposing to add new allocations for fixed and mobile services in the U/V Bands to be co-primary with the existing broadcasting allocation in those bands. The additional allocations would provide the maximum flexibility for planning efforts to increase spectrum available for flexible use, including the possibility of assigning portions of the U/V Bands for new mobile broadband services in the future. Second, the FCC is proposing to establish a framework that, for the first time, permits two or more television stations to share a single six-megahertz channel, thereby fostering efficient use of the U/V Bands. Third, the FCC intends to consider approaches to improve service for television viewers and create additional value for broadcasters by increasing the utility of the VHF bands for the operation of television services.
Commissioner Robert McDowell tossed out a few questions to the industry: “I would like commenters to tell us more about the feasibility of alternatives that may be used in lieu of, or in conjunction with, channel sharing. For example, broadcasters already are empowered under Section 336 of the Communications Act to offer a flexible range of “ancillary or supplemental” wireless services in addition to their “primary” broadcast program stream. I’ve been a longtime proponent of encouraging broadcasters to lease some of their spectrum for wireless broadband purposes, and now is the time to dig into this concept seriously. How would this approach work in the context of increasing the availability of wireless broadband? What are the technical issues, as well as the business feasibility issues? Would this approach be a faster means of getting more spectrum for broadband into the marketplace than the channel-sharing concept? What are the relative strengths and weaknesses of the plan for channel sharing, eventual spectrum-clearing and repacking versus the concept of allowing broadcasting and broadband uses to be interwoven throughout the existing TV band?”
The proposals in this rulemaking are expected to pave the way for future actions that will propose service, licensing and auction rules for new broadband service operators to utilize voluntarily vacated TV spectrum.
Comments in this ET Docket No.10-235 proceeding will be due 45 days after publication of the item in the Federal Register, and replies will be due 30 days thereafter.
Revising Experimental Radio Rules
In the second NPRM, the Commission seeks to expand the FCC’s existing Experimental Radio Service rules to promote research and foster development of new wireless technologies, devices, and applications. Specifically, the Commission proposed a new type of license, called a “program license,” which would give qualified entities broad authority to conduct research without the need to seek new approval for each individual experiment.
The Commission proposed three types of program licenses:
- Research license: This would allow universities, laboratories, and other qualified research institutions to conduct experiments over a wide variety of frequencies and other operating parameters.
- Innovation Zone license: This would identify discrete geographic areas — generally relatively remote locations — where researchers could conduct a wide range of experiments.
- Medical license: This would allow medical institutions to innovate and develop new devices that can save lives, have a significant impact on reducing medical costs for consumers, and provide new treatment options for wounded service men and women.
The Commission also proposed ways to streamline and clarify the existing rules that support conventional experimentation. Among other things, these changes would expand opportunities for researchers and manufacturers to conduct market trials as part of product development.
“Dynamic Access” Inquiry
The third action is an NOI to promote wireless innovation by examining how “dynamic access” radios and techniques — which use technology to squeeze the most use out of available spectrum — can provide more intensive and efficient use of spectrum. The Commission seeks comment on how to advance these technologies, whether by creating testbeds or modifying spectrum management practices and policies for future uses of both licensed and unlicensed devices and services.
Of importance to our clients, the FCC is asking for comments on what bands might be candidates for dynamic use and what additional steps the FCC might take to increase spectrum use and spur new technologies when spectrum is idle. This may pose a threat (wrapped in an opportunity) for our clients with existing licenses, if their spectrum is targeted for rule changes.
The NOI specifically seeks feedback on the usefulness of the model recently adopted for television white spaces devices for providing access to other spectrum bands. The Commission also asks whether spectrum sensing is, or could become, a viable technology for providing dynamic access in certain frequency bands. The NOI seeks comment on whether dynamic access technologies and techniques can be used in conjunction with current FCC secondary market policies to increase spectrum use.
Specifically, the FCC seeks comment on the variety of ways in which dynamic spectrum access radios and techniques can promote more intensive and efficient use of the radio spectrum, and the potential that these technological innovations have for enabling more effective management of spectrum. The Commission first explores the current state of development of dynamic spectrum access technologies, including the technical developments that affect the design and operation of dynamic radios. In particular, the FCC examines the development of spectrum sensing and other dynamic spectrum sharing capabilities and techniques. Next the FCC explores ways in which it can help promote the development of these technologies for use on both a licensed and an unlicensed basis.
The FCC also asks whether there are additional steps it should take to improve its “Spectrum Dashboard,” a web-based access tool that enables users to determine how spectrum is being used, who holds spectrum licenses around the country, and what spectrum is available in a particular geographic area. In addition, the FCC seeks comment on how spectrum used through secondary market arrangements could employ dynamic spectrum access radios and techniques. It also seeks comment on the establishment of dynamic access radio test beds and on spectrum bands that might be suitable for dynamic spectrum access. The Commission also examines whether the database access model applicable to unlicensed Television Band Devices might be deployed in other spectrum bands.
Comments on the ET Docket No. 10-236 NPRM will be due 30 days after publication of the item in the Federal Register, and replies will be due 30 days thereafter. Comments on the ET Docket No. 10-237 NOI will be due 60 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.
FCC Puts Net Neutrality, Next-Generation 9-1-1 On December 21 Agenda
The FCC has released its tentative agenda for its rescheduled December 21 open meeting: (1) an Open Internet Order adopting basic rules of the road to preserve the open Internet as a platform for innovation, investment, competition, and free expression; and (2) a Next-Generation 9-1-1 Notice of Inquiry (NOI) seeking public input on how to transition the current, voice-only 9-1-1 system to broadband-enabled, next-generation 9-1-1.
In a Washington, D.C., speech today, FCC Chairman Julius Genachowski outlined the net neutrality proposal as follows:
“First, consumers and innovators have a right to know basic information about broadband service, like how networks are being managed. The proposed framework therefore starts with a meaningful transparency obligation, so that consumers and innovators have the information they need to make smart choices about subscribing to or using a broadband network, or how to develop the next killer app. Sunshine can help solve problems early, reducing the number of issues that even come to the FCC.
“Second, consumers and innovators have a right to send and receive lawful Internet traffic — to go where they want and say what they want online, and to use the devices of their choice. Thus, the proposed framework would prohibit the blocking of lawful content, apps, services, and the connection of non-harmful devices to the network.
“Third, consumers and innovators have a right to a level playing field. No central authority, public or private, should have the power to pick which ideas or companies win or lose on the Internet; that’s the role of the market and the marketplace of ideas. And so the proposed framework includes a bar on unreasonable discrimination in transmitting lawful network traffic.
“The proposed framework also recognizes that broadband providers must have the ability and investment incentives to build out and run their networks. Universal high-speed Internet access is a vital national goal that will require very substantial private sector investment in our 21st century digital infrastructure. For our global competitiveness, and to harness the opportunities of broadband for all Americans, we want world-leading broadband networks in the United States that are both the freest and the fastest in the world.
“To this end, broadband providers need meaningful flexibility to manage their networks — for example, to deal with traffic that’s harmful to the network or unwanted by users, and to address the effects of congestion. Reasonable network management is an important part of the proposal, recognizing that what is reasonable will take account of the network technology and architecture involved.”
Regarding mobile broadband, he said the proposal called for transparency and a basic no blocking rule. He said the FCC would closely monitor the mobile broadband market, and take steps when appropriate. And nothing in the Order would preclude Congress from acting on its own.
Commissioner Robert McDowell said: “Minutes before midnight last night, Chairman Genachowski announced his intent to adopt sweeping regulations of Internet network management at the FCC’s open meeting on December 21. I strongly oppose this ill-advised maneuver. Such rules would upend three decades of bipartisan and international consensus that the Internet is best able to thrive in the absence of regulation. Pushing a small group of hand-picked industry players toward a ‘choice’ between a bad option (Title I Internet regulation) or a worse option (regulating the Internet like a monopoly phone company under Title II) smacks more of coercion than consensus or compromise. This ‘agreement’ has been extracted in defiance of not only the courts, but a large, bipartisan majority of Congress as well. Both have admonished the FCC not to reach beyond its statutory powers to regulate Internet access. By choosing this highly interventionist course, the Commission is ignoring the will of the elected representatives of the American people.”
BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
FCC Sets Comment Dates For “Bill Shock” Proposal
Comments Due Dec. 27; Replies Due Jan. 25
The FCC has set comment dates for its “bill shock” Notice of Proposed Rulemaking (NPRM) that proposes rules that would require mobile service providers to provide usage alerts and information that will assist consumers in avoiding unexpected charges on their bills. The Commission believes its proposals will allow consumers to understand the costs associated with use of their mobile service plans and take advantage of safeguards against bill shock by providing them with timely information to better manage those costs and thereby avoid incurring unexpected charges on their bills (BloostonLaw Telecom Update, October 20). Comments in this CG Docket Nos. 10-207 and 09-158 proceeding are due December 27, 2010; and replies are due January 25, 2011.
Our clients should participate in this rulemaking to make sure that any procedures adopted to guard against “bill shock” do not impose unrealistic and unjustified accounting and notification expenses on small and rural carriers, at a time when they can ill afford more costs.
The Commission’s data, including both complaint and survey results, indicates that many mobile consumers experience sudden, unexpected increases in their monthly bills that are not caused by intentional changes in their service plans. The Commission’s recent survey confirms that as many as 30 million Americans have experienced such unexpected increases in their wireless bills, commonly referred to as “bill shock.” Bill shock can result from a number of causes such as an unexpected increase that comes from high roaming fees or exceeding a monthly allotment of voice minutes, texts, or data consumption. This type of bill shock can be prevented by timely and easily accessible usage information. As mobile service is the fastest growing segment of the communications market, with more and more consumers taking advantage of the convenience and capabilities of mobile services, these unexpected charges result in significant expenditures of time, effort, and money for many American consumers each year.
The record developed in response to the Consumer Information NOI and Bill Shock PN and Bill Shock Survey persuaded the FCC that consumers face significant challenges in monitoring mobile usage and protecting themselves from substantial roaming charges or overage charges for exceeding their monthly allotments of voice minutes, text and data. In addition, the FCC has found that usage alerts offered by mobile providers vary widely between service providers and by type of service covered. For example, the FCC said, AT&T offers no alerts for voice usage and provides alerts only after text overages are incurred. Data usage alerts are provided by AT&T before or after overages depending upon the service plan. As another example, the FCC said, Sprint will send text or e-mail alerts to certain subscribers on data plans before they reach their data limits, but will call subscribers by phone only after they “significantly” exceed their voice or text allotments. Verizon Wireless provides alerts if a consumer is trending or has exceeded an allotment on or about the 20th day of a billing cycle. Other service providers have similar inconsistencies. Thus, the FCC said, providers are not consistent in the kinds of alerts they offer, or in the types of overages that are covered by these alerts. While several mobile providers offer voluntary tools for consumers to set limits on their usage, the FCC said, consumers are often unaware of how to access these tools, or even that such tools are available. As a result, the protections against bill shock that are currently afforded by providers have proven insufficient for many consumers. That conclusion is evidenced by the record compiled in this proceeding and the Commission’s own complaint data which indicate that large numbers of mobile consumers continue to experience bill shock each month. The FCC noted, for example, that approximately 10 percent of all wireless billing rate complaints filed at the Commission relate to voice, text, or data overages, along with overages due to roaming. In addition, the U.S. Government Accountability Office (GAO) found that 34 percent of wireless subscribers had experienced unexpected charges on their wireless bills.
The costs to consumers resulting from these unexpected charges can be significant. For example, the FCC said, two-thirds of bill shock complaints received by the Commission in the first half of 2010 were for amounts of $100 or greater, and a few bill shock complaints even exceeded $10,000 in disputed charges.
BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
FCC Chairman Promises To Open “9-1-1” To Texting
FCC Chairman Genachowski last week announced that the Commission will take steps to revolutionize America’s 9-1-1 system by harnessing the potential of text, photo, and video in emergencies. In a speech to public safety officials in Arlington, Virginia, Genachowski noted the following:
The FCC’s National Broadband Plan laid out a vision for Next-Generation 9-1-1 that uses cutting-edge technologies to help save lives. 9-1-1, which was established as the national emergency number in 1968, has been a wildly successful lifeline to those in distress. Americans place more than 237 million 9-1-1 calls every year — 650,000 per day.
Seventy percent of 9-1-1 calls come from mobile phones. But increasingly, consumers are using their mobile phones less to make calls, and more for texting and sending pictures and videos. These new technologies have the potential to revolutionize emergency response by providing public safety officials with critical real-time, on-the-ground information.
Today’s 9-1-1 system is not equipped to take advantage of new technologies. 9-1-1 call centers lack the technical capability to receive texts, photos, videos, and other data. Many 9-1-1 call centers don’t have access to broadband, which makes it difficult to receive incoming data, particularly in large volume. Finally, call center operators have not been trained how to effectively communicate using these new technologies.
The technological limitations of 9-1-1 can have tragic, real-world consequences. During the 2007 Virginia Tech campus shooting, students and witnesses desperately tried to send texts to 9-1-1 that local dispatchers never received. If these messages had gone through, first responders may have arrived on the scene faster with firsthand intelligence about the life-threatening situation that was unfolding.
Bringing 9-1-1 into the 21st century is one of the FCC’s key public safety priorities. The FCC Chairman announced that in December he will launch a proceeding, as recommended in the National Broadband Plan, to get public input on how to transition the current system to broadband-enabled, next-generation 9-1-1. This action builds on the FCC’s recent order beefing up 9-1-1 location-accuracy requirements so that first responders can quickly find people who reach out for help on their mobile phones, Genachowski said.
Benefits of Next-Generation 9-1-1
Text for Help: Many Americans, particularly those with disabilities, Genachowski said, rely on texting as their primary means of communication. In some emergency situations — especially in circumstances where a call could further jeopardize someone’s life and safety — texting is the only way to reach out for help. Next-Generation 911 would allow call centers to receive texts and put them to use.
RealTime Rapid Response: Mobile video and photos provide first responders with on-the-ground information that helps them assess and address the emergency in real-time. These technologies also help report crime as it is happening. Next-Generation 911 would expand the multimedia capabilities of 9-1-1 call centers.
Automatic Alerting: Next-Generation 9-1-1 would enable emergency calls to be placed by devices, rather than human beings. Examples of such devices include environmental sensors capable of detecting chemicals, highway cameras, security cameras, alarms, personal medical devices, telematics, and consumer electronics in automobiles.
It is expected that more formal action will be taken to initiate the 911 update proceeding by the end of the year.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell.
FCC EXTENDS DEADLINE UNTIL SEPT. 30, 2011, TO COMPLY WITH NEXT-GENERATION EMERGENCY ALERTS: The FCC recently took action to extend the deadline for broadcasters, cable companies, satellite radio and television operators, and wireline video service providers to implement the new federal common messaging protocol adopted by the Federal Emergency Management Agency (FEMA) for the transmission of next generation emergency alerts and warnings to the public. In 2007, the FCC required all Emergency Alert System (EAS) participants to have the capability to receive Common Alerting Protocol (CAP)-formatted EAS messages within 180 days of FEMA’s adoption of a CAP standard (i.e., March 29, 2011). The deadline for all EAS participants to implement the new technology has been extended to September 30, 2011. The FCC’s decision to provide an extension was based on public comment and a specific recommendation by the FCC’s Communications Security, Reliability and Interoperability Council (CSRIC), a federal advisory committee, calling for an extension of the CAP-compliance deadline. CSRIC and others from the public cited multiple factors in their call for an extension of the deadline, including the need for more time for the development, testing and potential certification of the new equipment and the costs associated with purchasing the CAP-compliant equipments by EAS participants. The FCC took these factors into consideration and extended the deadline from 180 days to 360 days for EAS participants to come into compliance. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC SEEKS COMMENT ON REQUEST FOR CONFIDENTIALITY ON REVISED E-RATE FORMS: Funds for Learning, a company that advises organizations about compliance with the regulations of the schools and libraries universal service support or E-rate program, has petitioned the FCC for clarification regarding information that will be required on revised versions of the E-rate program FCC Forms 470 and 471. The Commission has recently revised its FCC Forms 470 and 471 and those forms now require applicants to identify any consultant the applicant is using to assist them with their application. However, the forms will not be available for actual use by E-rate participants until they are posted on the Universal Administrative Company’s (USAC’s) website by January 11, 2011, before the opening of the 2011 application filing window. The petition filed by Funds for Learning seeks clarification regarding the public availability of the consultant the applicant is using and urges the Commission not to make that information publicly available. Funds for Learning also seeks clarification regarding the definition of consultant. Comments in this CC Docket No. 02-6 proceeding are due December 23, 2010, and replies are due January 7, 2011. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC RELEASES BUSINESS BROADBAND SURVEY RESULTS: The FCC’s survey of 3,506 American managers, owners or IT directors at businesses with 5 or more employees finds that nearly all businesses report having at least one broadband Internet connection (95%). For those businesses with 11 or more locations, 86% report all of their offices have Internet access. 95% of all businesses report having a broadband connection to at least one location.
Businesses subscribe to a range of technologies, with most businesses reporting DSL (73%) or dedicated line connections (15%). Small businesses (defined as companies with five to 25 employees) are more likely to have DSL connections and less likely to have dedicated lines than their larger counterparts:
- 76% of small businesses compared with 50% of largest businesses (defined as businesses with over 501 employees) have DSL.
- 12% of small businesses compared with 42% of largest businesses connect via dedicated lines (a T-1, DS-3, OC-3 or other type of dedicated inter-net connection).
Similar to residential consumers, almost half (54%) of businesses do not know their purchased Internet connection speed. The survey also queried businesses about their satisfaction with their broadband service and future plans to upgrade:
- 63% of businesses report that they are very satisfied with their current service.
- For those businesses planning to upgrade their service, running new applications and improving communication with customers were the most cited reasons for doing so.
The survey asked respondents about barriers to getting a faster Internet connection:
- Most businesses (85%) were not planning to upgrade their service in the next 12 months, citing adequacy of their current connection, a skepticism that increased speed would improve productivity and concerns about cost as the major reasons not to upgrade.
- Cost of service was a barrier to upgrading for 50% of businesses: 30% cited it as a major reason, while 20% cited it as a minor reason.
Respondents were asked about their common uses of broadband. The most cited purposes were buying products or supplies, researching and advertising online. Finally, businesses were asked about their monthly spending on various telecommunications services:
- Overall, the median for spending on broadband was $125 per month, while the mean was $2,198.
- The median for small business spending on broadband was $95 per month.
- Medium-sized businesses (defined as companies with 26 to 100 employees) spent a median of $150 per month, with large businesses spending $600 per month and the largest businesses surveyed spending a median of $950 and a mean of $93,573.
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.