BloostonLaw Telecom Update
Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP
[Reproduced here with the firm's permission.]
| Vol. 14, No. 39 || October 26, 2011 |
USF/ICC Reform Tops FCC Agenda for Tomorrow’s Open Meeting
The FCC’s “Sunshine Agenda” for tomorrow’s open meeting (October 27) includes the Commission’s long-awaited decision on Universal Service Fund (USF) and intercarrier compensation (ICC) reform:
Connect America Fund (WC Docket No. 10-90) ; A National Broadband Plan for Our Future (GN Docket No. 09-51); Establishing Just and Reasonable Rates for Local Exchange Carriers (WC Docket No. 07-135); High-Cost Universal Service Support (WC Docket No. 05-337); Developing a Unified Intercarrier Compensation Regime (CC Docket No. 01-92); Federal-State Joint Board on Universal Service (CC Docket No. 96-45); Lifeline and Linkup (WC Docket No. 03-109) and Mobility Fund (WT Docket No. 10-208). The Commission will consider a Report and Order and Further Notice of Proposed Rulemaking (FNPRM) to comprehensively reform and modernize the USF and ICC systems to ensure that all Americans have access to affordable broadband and mobile services.
Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest Obligations (MM Docket No. 00-168) ; Extension of the Filing Requirement For Children's Television Programming Report (FCC Form 398) (MM Docket No. 00-44). The Commission will consider an Order on Reconsideration of the 2007 Enhanced Disclosure Report and Order and a Further Notice of Proposed Rulemaking proposing to replace television broadcast stations' public files with online public files to be hosted by the Commission.
The Public Safety and Homeland Security Bureau will provide a brief update on the status of preparations for the nationwide test of the Emergency Alert System to be held on November 9, 2011, at 2 p.m. EST
NOTICE TO CLIENTS: The FCC’s Open Internet/Net Neutrality policies require each fixed and mobile broadband carrier to have a policy in place by November 20. To assist our clients with compliance, we are preparing a template that will address the new requirements, in a fashion similar to our CPNI template. The Open Internet template will cost $375. Please let us know by November 9 if you are interested in obtaining the template. We are also available to help our clients tailor the template as necessary, at our usual hourly rates. Additional information is attached. Contact Gerry Duffy (202) 828-5528 ( email@example.com ) or Mary Sisak (202) 828-5554 ( firstname.lastname@example.org ) with any questions or to order the template.
INSIDE THIS ISSUE
- BloostonLaw in the News: Ben Dickens cited in “Fortune” article on xG Technology.
- Rural associations write Obama about concerns with FCC’s USF/ICC order.
- Cell Phone study finds no increased cancer risks.
- Bryson confirmed as Commerce Secretary.
- Randy Houdek reelected to NECA board.
BloostonLaw in the News
Ben Dickens Cited in “Fortune” Article on xG Technology
BloostonLaw Senior Partner Ben Dickens has been quoted in a Fortune Magazine article about xG Technology’s “Super Wi-Fi,” which transmits long-range signals using the empty "white spaces" that exist between local TV stations. The article, titled Rural America’s (Other) Great Broadband Hope, also appears in CNN Money online.
Dickens commented on the unique features of xG’s wireless technology and its utility in rural areas. xG is testing its technology in a trial with Townes Telecommunications, an Arkansas local exchange carrier (LEC) and provider of Internet service. By mounting antennas on schools and water towers, the companies hope to build a flexible network that will be able to link a farmhouse to the Internet or a cell phone to the phone network, according to Fortune.
The ability to have the network also support cell phone calls is particularly appealing to Townes, which like every other LEC has been losing landline customers to cellular competitors. Until now, there has not been a cost effective way to fight back.
In the past, Fortune noted, companies that have attempted to build wireless networks to circumvent existing wired networks have not fared well. The earlier "fixed wireless" companies, such as Winstar and Teligent, spent billions before filing for bankruptcy protection. Clearwire, which was supposed to finally popularize fixed wireless, is unprofitable and its stock is down 80% in the past year, according to Fortune. It added that efforts to create "mesh networks" that would blanket cities in Wi-Fi coverage have also failed to turn profits despite the backing of companies such as Earthlink.
However, xG's Rick Rotondo told Fortune that there is reason to believe that this time will finally be different. He says xG has overcome what was supposed to be one major limitation of the free white spaces, the low power limits that the FCC placed on phones and other "personal communications devices," according to Fortune. Mobile devices using the white spaces may transmit using at most a tenth of a watt of power, while a cell phone can blast out a full watt or more when it needs to.
Nevertheless, Rotondo says that xG can get such phones to transmit 3 megabits per second to the towers. xG accomplishes this by using multiple antennas and smarter signal processing in its towers. Download speeds will be twice as fast, Rotondo told Fortune. In rural areas he says xG can reliably hit those speeds at distances of four miles.
The company recently completed trials with the U.S. Army at Fort Bliss, Oklahoma. Results have not yet been released.
xG is a client of the Firm, and Ben Dickens serves on its Advisory Board. BloostonLaw contacts: Hal Mordkofsky and Ben Dickens.
Rural Associations Write Obama With Concerns About FCC’s USF/ICC Order
The National Telecommunications Cooperative Association (NTCA), Organization for the Promotion and Advancement of Small Telephone Companies (OPASTCO), and the Western Telecommunications Alliance (WTA) have written President Obama regarding the FCC’s forthcoming Universal Service Fund (USF)/intercarrier compensation (ICC) order (see separate story in Page 1 box).
In their October 21 letter, the associations applauded the President’s efforts to ensure that every American has a broadband connection and can benefit from the economic, job and marketplace opportunities that advanced communications technology provides. Likewise, they fully supported the President’s initiative to scale back unnecessary regulations that are burdensome on entrepreneurs and otherwise impair the nation’s economic health. However, the associations expressed concern that the FCC may not share that same commitment.
They said the FCC’s direction with the USF/ICC proceeding is inconsistent with the White House’s vision and direction. Whereas the Administration has announced its commitment to broadband deployment and regulatory reforms that will spur job creation and overall economic expansion, the associations said, the FCC is preparing reform measures that will completely undercut such investment and growth by sidestepping the broadband issue while simultaneously cultivating an environment of continuing regulatory and economic uncertainty throughout much of rural America.
“Mr. President, the hundreds of rural telecom providers represented by our associations want to ensure their communities are part of the broadband fabric of our global world. These small businesses are dedicated to not only maintaining their networks, but also to evolving them to make sure they meet the technological and competitive challenges of the era in which we live. The well thought out USF/ICC reform proposals the rural telecom industry put forward as part of the Consensus Framework to the FCC during its proceeding must be given consideration. These proposals, unlike the FCC’s theories and hypotheses, align with your administration’s goals for job creation and the economic recovery of our country. They also provide the assurance that all rural consumers have affordable access to broadband,” the associations wrote.
The associations pointed to recent remarks made by U.S. Department of Agriculture (USDA) Undersecretary for Rural Development Dallas Tonsager, and an October 21 letter from Rural Utilities Service (RUS) Administrator Jonathan Adelstein to FCC Chairman Julius Genachowski that “suggested that USDA and RUS were hopeful that the FCC would get USF/ICC reform right but that if they do not, the USDA and RUS stand ready to help ensure rural telcos ultimately receive the support they need to adequately serve their rural consumers. Aren't we all on the same team here? The FCC’s independent status notwithstanding, the agency has an obligation and a responsibility to respectfully work with the rest of the government and the public sector alike in the pursuit of policies that are in the best interest of the nation, and not the mere fulfillment of the agency’s own agenda.”
In conclusion, the associations said: “Mr. President, your administration has been visible and vocal about the need for broadband deployment and job creation and why they are essential for ensuring America’s economic health and leadership. We cannot afford to let one agency derail these laudable goals and all the good that has already been accomplished in this regard.”
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
Cell Phone Study Finds No Increased Cancer Risks
A study of nearly 360,000 cellphone users in Denmark found no increased risk of brain tumors with long-term use of cell phones, according to the New York Times and ABC News. But the results are not likely to end the debate over the health effects of wireless handsets because the study focused on cellphone subscriptions rather than actual use, and did not count people who had corporate subscriptions or who used cellphones without a long-term contract. According to the Times, a small to moderate increase in risk of cancer among heavy users of cellphones for 10 to 15 years or longer still “cannot be ruled out,” the investigators wrote.
The Times reported that the findings, published in the British medical journal BMJ as an update of a 2007 report, come nearly five months after a World Health Organization (WHO) panel concluded that cellphones are “possibly carcinogenic.” Last year, a 13-country study called “Interphone” also found no overall increased risk but reported that participants with the highest level of cellphone use had a 40% higher risk of glioma, an aggressive type of brain tumor. However, the Times said, even if the elevated risk of glioma is confirmed, the tumors are relatively rare, and thus individual risk remains minimal.
The Danish study is important because it matches data from a national cancer registry with mobile phone contracts beginning in 1982, the year the phones were introduced in Denmark, until 1995, according to the Times. Because it used a computerized cohort that was tracked through registries and digitized subscriber data, the study avoided the need to contact individuals and thus eliminated problems related to selection and recall bias common in other studies.
The Times said that an accompanying editorial to the study noted that although the results are “reassuring, they must be viewed in the context of about 15 previous studies on cellphones and cancer risk, including those that did detect an association between heavy cellphone use and certain brain tumors.”
Last June, ABC News asked 92 physicians about their own cell phone use. According to ABC, 65% said they hold their handsets up to their ears, and 27% said they use hands-free devices to minimize cancer risks.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell.
BRYSON CONFIRMED AS COMMERCE SECRETARY: The U.S. Senate last week confirmed John Bryson to be Secretary of Commerce. He was sworn in on Friday. He succeeds Gary Locke, who stepped down to become U.S. Ambassador to China. Bryson is a former CEO of the power company, Edison International, parent of Southern California Edison; and a former president of the California Public Utilities Commission. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, and Gerry Duffy.
RANDY HOUDEK REELECTED TO NECA BOARD: The National Exchange Carrier Association (NECA) has announced the results of elections for its board of directors. Randy Houdek, general manager at Venture Communications Cooperative in Highmore, South Dakota, was reelected to a Subset 3 director seat at the association’s 28th annual member meeting in Kansas City, Missouri. Houdek’s new term begins in January 2012. He has been a board member since July 2005. The 15-member NECA board includes two representatives of Bell Operating Companies (Subset 1), two representatives of companies with greater than $40 million in annual revenues (Subset 2), six representatives from all telephone companies with less than $40 million in revenues (Subset 3), and five outside directors who represent all subsets. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
COMMENT DATES SET FOR NPRM TO STREAMLINE REVIEW OF FOREIGN OWNERSHIP OF CERTAIN WIRELESS LICENSES: The FCC has established a comment cycle for its Notice of Proposed Rulemaking (NPRM) initiating a review of policies and procedures that apply to foreign ownership of common carrier, aeronautical en route and aeronautical fixed radio station licensees. (Note: the NPRM does not address foreign ownership of broadcast licensees.) Comments in this IB Docket No. 11-133 proceeding are due December 5, 2011, and replies are due January 4, 2012. The Commission said it seeks to reduce to the extent possible the regulatory costs and burdens imposed on common carrier, aeronautical en route and aeronautical fixed radio station applicants, licensees, and spectrum lessees; provide greater transparency and more predictability with respect to the Commission's foreign ownership filing requirements and review process; and facilitate investment from new sources of capital, while continuing to protect important interests related to national security, law enforcement, foreign policy, and trade policy (BloostonLaw Telecom Update, September 7). Section 310(b)(4) of the Communications Act establishes a 25% benchmark for foreign investment in U.S. companies that directly or indirectly control a U.S. broadcast, common carrier, or aeronautical radio station licensee. It also grants the Commission discretion to allow higher levels of foreign ownership unless such ownership is inconsistent with the public interest. The NPRM seeks comment on proposed measures to revise and simplify the process for reviewing requests for higher levels of foreign ownership in wireless common carrier and aeronautical licensees, and spectrum lessees. The proposed changes would purportedly provide greater transparency and more predictability as to what information the Commission needs to carry out its statutory duties under the Act, and would reduce costs for U.S. wireless carriers seeking approval of foreign ownership above the 25 percent benchmark. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell.
REPLY DATE EXTENDED FOR NPRM REGARDING CLOSED CAPTIONING FOR CERTAIN IP-DELIVERED VIDEO PROGRAMMING: The FCC has extended until November 1 the deadline for reply comment on its MB Docket No. 11-154 Notice of Proposed Rulemaking (NPRM) to implement provisions of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA) that mandate rules for closed captioning of certain video programming delivered using Internet protocol (IP). The Commission seeks comment on rules that would apply to the distributors, providers, and owners of IP-delivered video programming, as well as the devices that display such programming. The NPRM seeks comment on proposals that would better enable individuals who are deaf or hard of hearing to view IP-delivered video programming, by requiring that programming be provided with closed captions if it was shown on television with captions after the effective date of the rules adopted pursuant to this proceeding. The FCC also seeks comment on requirements for the devices that are subject to the CVAA's new closed captioning requirements. The Commission said its goal is to require the provision of closed captions with IP-delivered video programming in the manner most helpful to consumers, while ensuring that our regulations do not create undue economic burdens for the distributors, providers, and owners of online video programming. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
SBA OMBUDSMAN AVAILABLE TO SMALL ENTITIES REGARDING FEDERAL ENFORCEMENT, COMPLIANCE MATTERS: The FCC has issued a reminder that the Office of the National Ombudsman, within the U.S. Small Business Administration (SBA), is available to assist small entities with federal agency enforcement and compliance matters. Created by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), the Ombudsman's Office and 10 regional Small Business Regulatory Fairness Boards (RegFair Boards) facilitate meaningful dialogue between the agencies and small entities. One avenue for assistance is the Ombudsman's written comment procedure. Using a one-page Federal Agency Appraisal Form, a small business may submit to the Ombudsman's Office any complaints, suggestions, or compliments concerning a federal agency's enforcement action. The Ombudsman then forwards this form, along with any additional documentation, to the agency for review. Small entities may obtain additional information on this process, as well as on the RegFair hearing process, by contacting the Ombudsman's Office. The FCC also notes that small businesses may request expedited treatment of an enforcement action against them where they believe that delay may threaten the economic viability of the business. Last, the Ombudsman's Office has asked all agencies to make clear that, if a small entity requests Ombudsman assistance on a matter, the agency will not retaliate in response. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
AUCTION 93 FREEZE ANNOUNCED FOR CERTAIN FM APPLICATIONS, RULEMAKING FILINGS: The FCC’s Media Bureau has announced a freeze, effective immediately, on the following filings:
- Applications proposing to modify any of the vacant non-reserved band FM allotments scheduled for the Auction 93 (Auction 93 Allotments);
- Petitions and counterproposals that propose a change in channel, class, community, or reference coordinates for any of the Auction 93 Allotments; and
- Applications, petitions and counterproposals that fail to fully protect any of the Auction 93 Allotments.
All filings after the October 24 release of the FCC’s Public Notice will be dismissed. This freeze will automatically terminate the day after the filing deadline for post-Auction 93 long form applications. This temporary freeze is designed to promote a more certain and speedy auction process. In Auction 93, the Media and Wireless Telecommunications Bureaus will make available through competitive bidding procedures 123 vacant non-reserved band allotments in the FM broadcast service. FM minor change applications, which can now be filed on a first-come first-served basis, must protect the reference coordinates of each of these allotments. Auction 93 is scheduled to begin March 27, 2012. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell.
FCC MODIFIES CERTAIN ACCESS BPL RULES: The FCC has issued a Second Report and Order (Second Order), which fundamentally affirms its rules for Access Broadband over Power Line (Access BPL) systems. The FCC made some refinements, however, which include the following: (1) modifying the rules to increase the required notch filtering capability for systems operating below 30 MHz from 20 dB to 25 dB; (2) establishing a new alternative procedure for determining site-specific extrapolation factors generally as described in its Request for Further Comment (RFC) and Further Notice of Proposed Rulemaking (FNPRM); and (3) adopting a definition for the “slant-range distance” used in the BPL measurement guidelines to further clarify its application. The Commission adopted rules for Access BPL systems in 2004 and affirmed those rules in 2006. The BPL rules were challenged by the national association for amateur radio, formally known as the American Radio Relay League (ARRL) in the U.S. Court of Appeals for the District of Columbia Circuit in ARRL v. FCC . In this case, the court directed the Commission to: 1) make part of the rulemaking record unredacted versions of several staff technical studies which the Commission considered in promulgating the rules, 2) provide a reasonable opportunity for public comment on those studies, and 3) provide a reasoned explanation of its choice of the extrapolation factor for use in measuring radiated emissions from Access BPL systems. In response, the Commission issued its RFC/FNPRM. In the RFC/FNPRM, the Commission took its first step in responding to the directives of the court in ARRL v. FCC and also took that opportunity to review the Access BPL extrapolation factor and propose certain changes to the BPL technical rules that appeared appropriate in view of new information and further consideration of this matter. In the current Second Order, the FCC says it completes its action addressing the court’s concerns and the FCC’s proposals in the RFC/FNPRM. The FCC concludes that the information submitted in response to the RFC/FNPRM does not warrant any changes to the emissions standards or the extrapolation factor. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino.
NATIONWIDE EAS TEST SET FOR NOVEMBER 9: The FCC has issued a reminder to Emergency Alert System (EAS) Participants ( e.g., broadcasters, cable operators, satellite radio and television service providers and wireline video service providers) that on November 9, 2011, at 2:00 p.m. Eastern Standard Time (EST), the Commission and the Federal Emergency Management Agency (FEMA) will conduct the first-ever Nationwide EAS Test. The purpose of the test is to assess the reliability and effectiveness of the EAS as a way to alert the public of national emergencies. The test is diagnostic in nature and is intended to allow the FCC and FEMA to determine how well the nationwide EAS works and to make improvements if necessary. Under the FCC’s rules, all EAS Participants must participate in the nationwide test and must submit test result data to the FCC no later than December 27, 2011 ( i.e. , 45 days following the test). EAS Participants may file the required test result data either in paper format or electronically. EAS Participants that choose to file paper submissions must do so no later than December 27, 2011, and must file an original and one copy of each filing with the Commission by hand, messenger delivery, commercial overnight courier, or by first class or overnight U.S. Postal Service mail addressed to the Secretary, Federal Communications Commission, ATTN: Nationwide EAS Test, 445 12th Street, SW, Washington DC 20554. EAS Participants must mark the top of each page of their submissions: “Confidential — Not for Public Inspection.” BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino.
| Special Supplement || October 25, 2011 |
BloostonLaw Compliance Template For FCC’s Open Internet/Net Neutrality Rules
The FCC’s Open Internet/Net Neutrality policies require each fixed and mobile broadband carrier to have a policy in place by November 20. To assist our clients with compliance, we are preparing a template that will address the new requirements, in a fashion similar to our CPNI template. The Open Internet template will cost $375. Please let us know by November 9 if you are interested in obtaining the template. We are also available to help our clients tailor the template as necessary, at our usual hourly rates.
The FCC has published its “Open Internet” or “Network Neutrality” rules in the Federal Register. The rules become effective on November 20 (BloostonLaw Telecom Update, September 21). The Commission’s Report and Order (R&O) establishes protections for broadband service to preserve and reinforce Internet freedom and openness. The Commission adopted three basic protections that are grounded in broadly accepted Internet norms, as well as the FCC’s own prior decisions.
First, transparency: fixed and mobile broadband providers must disclose the network management practices, performance characteristics, and commercial terms of their broadband services.
Second, no blocking: fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful Web sites, or block applications that compete with their voice or video telephony services.
Third, no unreasonable discrimination: fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic. The Commission adopted a more limited set of rules for mobile broadband, requiring compliance with the transparency rule and a basic version of the no-blocking rule.
The Open Internet Order also covers key definitions, such as “reasonable network management”, which is likewise broad and which the Commission intends to further develop on a case-by-case basis based upon consumer complaints.
The FCC’s rules are intentionally non-specific in order to provide some flexibility in implementing them for providers. The template, however, will provide suggested procedures and language that can be used by each broadband provider to address its specific circumstances to satisfy the new requirements.
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.