BloostonLaw Telecom Update
Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP
[Portions reproduced here with the firm's permission.]
| Vol. 14, No. 23|| June 8, 2011 |
June 9 Meeting Agenda
The FCC has released the “Sunshine” agenda for its June 9 open meeting. Items scheduled for consideration are:
1. Electronic Tariff Filing System (ETFS) (WC Docket No. 10-141). The FCC will consider a Report and Order that enables all carriers that file tariffs with the Commission to do so electronically, thereby streamlining their filing processes while also making tariff information more readily accessible to other carriers and the public.
2. The Establishment of Policies and Service Rules for the Broadcasting-Satellite Service at the 17.3-17.7 GHz Frequency Band and at the 17.7-17.8 GHz Frequency Band Internationally, and at the 24.75-25.25 GHz Frequency Band for Fixed Satellite Services Providing Feeder Links to the Broadcasting-Satellite Service and for the Satellite Services Operating Bi-directionally in the 17.3-17.8 GHz Frequency Band (IB Docket No. 06-123). The Commission will consider a Second Report and Order adopting technical rules to mitigate space path interference between the 17/24 GHz Broadcasting-Satellite Service (BSS) space stations and current and future Direct Broadcasting Service (DBS) space stations that operate in the same frequency band.
The meeting will include a presentation by the working group on the impact of technology on the information needs of communities. The Chief of the Public Safety and Homeland Security Bureau and the Assistant Administrator of FEMA will also give a presentation regarding the Emergency Alert System.
BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
INSIDE THIS ISSUE
- FCC puts 700 MHz progress reports on hold until it can publish effective deadline.
- NBP architect Blair Levin gives Plan mixed review, but generally backs it.
- Opposition continues to Lightsquared’s proposal to use GPS bands.
- FCC sets comment dates for implementation of CALM Act.
- FCC sets comment dates for NPRM on proposed changes to BRS, EBS bands.
FCC Puts 700 MHz Progress Reports On Hold Until It Can Publish Effective Deadline
The FCC has temporarily delayed the June 13 deadline for 700 MHz Construction Reports until it publishes an effective date in the Federal Register. In a June 3 letter to CTIA-The Wireless Association, the FCC noted that in 2007, it had “required certain 700 MHz licensees to submit information regarding the status of their efforts to meet performance obligations, but provided that this requirement would become effective as of a date subsequently announced in the Federal Register.” To date, the FCC has not adequately published such a date in the Federal Register. Accordingly, until the FCC announces an effective date, licensees need not file the performance status reports required by the 700 MHz Second Report and Order.
Clients affected include Lower 700 MHz A, B and E-Block licensees that acquired their licenses in Auction No. 73 or in the aftermarket. Once the FCC publishes an effective date, these licensees will be required to file interim reports concerning the status of their efforts to meet the construction requirements and the manner in which their spectrum is being utilized. The information to be reported must include the date the license term commenced, a description of the steps the licensee has taken toward meeting its construction obligations in a timely manner, including the technology or technologies and service(s) being provided and the areas in which those services are available. The interim reporting requirement does not apply to Lower 700 MHz C-Block licenses (i.e., CMA licenses offered in Auctions Nos. 44 and 49), which have a “substantial service” buildout requirement.
While no actual build-out must be completed by the deadline for this year’s interim report, the FCC can use a lack of progress reflected in the report to shorten the license term, if the interim build-out deadline in two years is not met.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell.
NBP Architect Blair Levin Gives Plan Mixed Review, But Generally Backs It
Blair Levin, former executive director of the FCC’s Omnibus Broadband Initiative and principal architect of the agency's National Broadband Plan (NBP), recently said that it has been a "pretty good year" for the Plan, but that he has some misgivings. In an interview with C-SPAN, Levin, who is now with the Aspen Institute, said that the Plan appears to follow the old adage of "two steps forward, one step back," according to various sources, including Broadcasting & Cable (B&C) and FierceBroadbandWireless. Levin admitted that some actions on the Plan have been “great,” but that others have evoked his response of “oh, really?”
However, Levin said this mixed reaction is to be expected because the Plan was not meant to be a blueprint where everything has to be exactly right. This is consistent with what he said when he presented the NBP to the Commission in March 2010: “[We should] view the Plan as a first step, and that it should evolve over time. We know there is a crisis with the USF [Universal Service Fund], intercarrier compensation, and spectrum…The time is not for slogans, but solutions” (BloostonLaw Telecom Update, March 17, 2010).
In the recent C-SPAN interview, Levin said that the Plan was always meant to be an "agenda-setting and target-clarifying device." He cited spectrum reform, USF reform and rights-of-way reform as among its key issues. (But he said that he did not believe that the FCC would meet its “end-of-summer” deadline for USF reform.)
As B&C reported, Levin also said he thought the debate had gone "off track" on the spectrum reform issue. He said the issue to resolve is not whether to reallocate spectrum, but how to continually reallocate it to serve evolving needs. B&C noted that Levin said the most important resource the government controls is spectrum, and the need to reallocate it as needs arise is getting lost in debates like repacking broadcasters and whether to auction the D block or reallocate it to public safety. Levin said he supported incentive auctions, which would compensate broadcasters for exiting spectrum in favor of wireless broadband.
One alternative would be to wait for a crisis, then have the government just come in and take the spectrum, he said. He would be "OK" with that, but said that it was a "crisis" response that would lead to years of litigation. Incentive auctions would be a market-based solution, which he favors, according to B&C.
Levin also said that some broadcasters are sitting on underutilized capital, and that some are not. Further, he said that the market should determine whether there is still a need for 25 or 30 TV stations in New York. For the 25th broadcaster in New York, it may be more valuable to sell the spectrum, Levin said, according to B&C.
With respect to the FCC missing its deadline for USF reform, Levin said that the Commission should be forgiven for missing its deadline by a month or two. B&C noted that Levin also missed his initial NBP deadline—it was supposed to be delivered to Congress in February 2010.
Levin, a former FCC chief of staff, did not entirely rule out his candidacy for the next open Democratic FCC seat — likely that of Michael Copps, who is exiting by year's end, according to B&C. But he said he had work at the Aspen Institute, where he is currently employed, that "would be more fun than being the next Commissioner.... I think I'd prefer to keep working on some of the stuff that I am working on at Aspen. I think that is more important for me right now."
BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
OPPOSITION CONTINUES REGARDING LIGHTSQUARED INTERFERENCE TO GPS BANDS: Several parties continue to challenge the FCC’s grant of authority for LightSquared Subsidiary LLC to operate a terrestrial wireless system in the L-Band, an area in which Global Positioning Satellite (GPS) satellites also operate. LightSquared plans to deploy its system (with 40,000 transmitters) directly adjacent to GPS bands. The company says it has developed filters to stop its signal from bleeding into GPS service, but many major GPS stakeholders, including the Defense Department, fear that widespread GPS dead zones are inevitable if LightSquared’s network goes live. This concern has been heightened by a June 1, 2011 article in the Wall Street Journal, which indicates that interference is being encountered up to 22 miles from LightSquared’s New Mexico test operation. The article goes on to report that the GPS interference problem may be contributing to other issues plaguing LightSquared, by causing investor concerns and delay.
Many companies have fleets of vehicles, and use GPS to track service and installation people. Additionally, many industries have GPS capability built into their infrastructure, and have come to depend on GPS. The FCC granted LightSquared a waiver with a condition that LightSquared form an interference working group and submit progress reports, culminating in a report to the FCC by June 15. Commenters have urged the FCC to require that LightSquared eliminate any interference, not just interference focused on by the working group, and ensure that a system is in place to deal with any future interference issues. They have also urged the FCC to promote government transparency by ensuring not only that the progress reports to the FCC are made public, but also that the public is given a meaningful chance to participate in determining whether the issues raised in the reports are satisfactorily resolved. BloostonLaw contacts: John Prendergast and Sal Taillefer.
FCC SETS COMMENT DATES FOR IMPLEMENTATION OF CALM ACT: The FCC has established comment dates for its Notice of Proposed Rulemaking (NPRM) regarding implementation of the Commercial Advertisement Loudness Mitigation (CALM) Act. Among
other things, the CALM Act directs the Commission to incorporate into its rules by reference and make mandatory a technical standard developed by an industry standard-setting body that is designed to prevent television commercial advertisements from being transmitted at louder volumes than the program material they accompany (Blooston Telecom Update, June 1). Comments in this MB Docket No. 11-93 proceeding are due July 5, and replies are due July 18.
Specifically, the CALM Act requires the Commission to incorporate by reference the ATSC A/85 Recommended Practice (ATSC A/85 RP) and make it mandatory “insofar as such recommended practice concerns the transmission of commercial advertisements by a television broadcast station, cable operator, or other multichannel video programming distributor (MVPD).'' As mandated by the statute, the proposed rules will apply to TV broadcasters, cable operators and other MVPDs. The new law requires the Commission to adopt the required regulation on or before December 15, 2011, and it will take effect one year after adoption. The document seeks comment below on proposals regarding compliance, waivers, and other implementation issues. BloostonLaw contacts: Gerry Duffy and Hal Mordkofsky.
FCC SETS COMMENT DATES FOR NPRM ON PROPOSED CHANGES TO BRS, EBS BANDS: The FCC has set comment dates for its Notice of Proposed Rulemaking (NPRM) regarding a proposal to use wider channel bandwidths for the provision of broadband services in certain spectrum bands. Specifically, the NPRM seeks comment on proposed changes to the out-of-band emission limits for mobile Broadband Radio Service (BRS) and Educational Broadband Service (EBS) devices operating in the 2496-2690 MHz band (2.5 GHz band)(BloostonLaw Telecom Update, June 1). Comments in this WT Docket No. 03-66 proceeding are due July 7, and replies are due July 22. The FCC said the proposed changes may permit operators to use spectrum more efficiently, and to provide higher data rates to consumers, thereby advancing key goals of the National Broadband Plan. The changes would also promote greater harmonization of FCC requirements with global standards for mobile devices in the 2.5 GHz band, potentially making equipment more affordable and furthering the development of mobile broadband devices, the Commission said. It seeks comment on whether the proposed changes can be made without increasing the potential for harmful interference to existing users in the 2.5 GHz band and adjacent bands. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino.
FCC PLACES FREEZE ON RULEMAKING PETITIONS TO CHANGE TV CHANNELS: The FCC’s Media Bureau has placed a freeze on the acceptance of additional rulemaking petitions filed by licensed television stations requesting channel substitutions to the Post-Transition Table of DTV Allotments, as it considers the proposal to “repack” the broadcast band and hold “incentive” auctions. The Media Bureau said it has been accepting channel substitution rulemaking petitions since May 30, 2008, and believes that those stations interested in changing channels have had sufficient time to evaluate engineering options and submit rulemaking petitions. The Media Bureau will continue its processing of rulemaking petitions that are already on file with the Office of the Secretary.
The Media Bureau said that subsequent to the lifting of its freeze in 2008, the National Broadband Plan (NBP) was released. The NBP announced an effort to identify 500 megahertz of spectrum that can be reallocated from existing uses to enable the expansion of new mobile, fixed and unlicensed broadband service. To aid in this endeavor, the NBP recommended, among other things, that the Commission initiate a rulemaking proceeding to reallocate 120 megahertz from the broadcast television bands (channels 2 – 51), and also to consider methodologies for repacking full-power television channels to increase the efficiency of channel use. The Commission has now issued a Notice of Proposed Rulemaking (NPRM) as the first step in a series of actions towards achieving these goals. It is now placing a freeze on additional rulemaking petitions to change channels, in order to permit the FCC to evaluate its reallocation and repacking proposals and their impact on the Post-Transition Table of DTV Allotments. BloostonLaw contacts: Hal Mordkofsky, Cary Mitchell and John Prendergast.
FCC GRANTS AT&T WAIVER FOR TIPToP SERVICE FOR PURPOSE OF ACCESS TARIFF FILING: The FCC has granted AT&T’s petition seeking a limited waiver of section 61.42(g) of the Commission’s rules to exclude its True IP to PSTN (TIPToP) service from any price cap basket in the upcoming 2011 annual access tariff filing. According to the FCC, AT&T states that TIPToP provides entities it refers to as “Internet Protocol Voice Information Service Providers” (IP-VIS Providers) with connectivity to the AT&T network. The service includes “one-way or two-way port interfaces that provide trunking and switching components in a single, easy to use, time division multiplexed interface.” This interface provides connectivity to “AT&T users and to non-AT&T users that are subtended by AT&T’s access tandems.” The FCC agreed with AT&T that special circumstances exist due to the nature of the service and the limited demand for that service. AT&T explained that this service is not currently purchased by any unaffiliated customers. The FCC agreed that TIPToP does not fit squarely within the price cap structure because it appears to include both traffic-sensitive and trunking elements and that a waiver would preserve the status quo until the Commission determines the appropriate treatment of the service under the price cap regime. The Commission is considering the appropriate regulatory treatment of IP-based services, including the intercarrier compensation rules that apply to IP-originated traffic, in a number of open proceedings. The FCC said the requested waiver will serve the public interest by permitting the Commission to address the appropriate regulatory treatment of IP-originated traffic in a more comprehensive manner before addressing more detailed issues, such as the appropriate price cap baskets within which particular new services should be placed. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
VERIZON SEEKS RULING TO HAVE “COST-CAUSERS” PAY FOR CERTAIN NPAC TASKS: Verizon Communications and Verizon Wireless have filed a petition for declaratory ruling requesting that the costs of certain tasks that use the Number Portability Administration Center (NPAC) database but are unrelated to number portability or pooling be borne directly by the cost-causing providers, rather than shared by all telecommunications carriers. Specifically, Verizon asserts that these transactions, which NPAC categorizes as “LNP Type 1 intra-provider ports and ‘modifies’ of NPAC records,” do not further “the two original purposes of the database: local number portability and number pooling.” Verizon asserts that some providers are increasingly using the database for these transactions, which causes escalating costs, and that only those providers requesting these transactions should be required to pay for them. Concurrently with its petition, Verizon requested confidential treatment of its petition. The Chief, Wireline Competition Bureau has adopted a Protective Order that limits access to proprietary or confidential information that has been (and other information that may be) filed in this proceeding. Comments in this WC Docket No. 11-95 proceeding are due July 15, and replies are due August 15. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FURTHER INQUIRY INTO FIXED SERVICE SHARING OF THE 6875-7125 MHz AND 12700-13200 MHz BANDS: On August 5, 2010, the FCC commenced a proceeding to remove regulatory barriers to the use of spectrum for wireless backhaul and other point-to-point and point-to-multipoint communications. The proceeding sought to increase efficient use of spectrum for backhaul, by updating regulatory classifications that may not have kept pace with the evolution of converged digital technologies. Now the Wireless Telecommunications Bureau (WTB) seeks additional, focused comment on certain issues raised in the Commission’s Wireless Backhaul proceeding. Specifically, the WTB seeks to supplement the record in this proceeding on: (1) the feasibility of sharing in the 7 and 13 GHz bands; (2) limiting the frequency ranges available for Fixed Service (FS) in order to ensure the continuation of electronic newsgathering operations; and (3) the appropriate channelization scheme, coordination procedures, and capacity and loading requirements for the bands. Comments in this WT Docket No. 10-153 proceeding are due June 27. There is no opportunity for replies. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell.
FREE PRESS WANTS FCC PROBE OF VERIZON’s “TETHERING” PRACTICES: Free Press has filed a formal complaint with the FCC, alleging that Verizon is blocking access to the tethering applications in the Android Market, and therefore violating the Commission’s open access provisions, which state that Verizon "shall not deny, limit, or restrict the ability of their customers to use the devices and applications of their choice." Tethering allows a user to connect multiple devices ¾ such as a laptop, digital camera, or Global Positioning Satellite (GPS) system ¾ to the Internet via a mobile phone’s broadband service, Free Press said. In essence, Free Press added, the consumer uses the phone in the same way that he might rely on a wireless router at home ¾ tethering allows him to use one data connection with multiple devices. Because users download tethering applications for the express purpose of connecting additional devices to their data connections, Verizon’s actions also limit and restrict the ability of users to connect the devices of their choice to the LTE network. The Commission should immediately investigate this apparent violation of its rules and assess all appropriate penalties. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
DEFENSE SECRETARY SAYS U.S. TAKES POTENTIAL CYBER ATTACKS SERIOUSLY: Defense Secretary Robert Gates said the United States is seriously concerned about cyber attacks and is prepared to use force against those it considers acts of war, according to Reuters. Gates also assured Asian allies that the United States would protect sea lanes and maintain a robust military presence in the region despite a severe budget crunch and the protracted wars in Iraq and Afghanistan. Reuters reported that Gates said the U.S. takes the cyber threat very seriously and sees it from a variety of sources, not just one or another country. "What would constitute an act of war by cyber that would require some kind of response, either in kind or kinetically?" he said. "We could avoid some serious international tensions in the future if we could establish some rules of the road as early as possible to let people know what kinds of acts are acceptable, what kinds of acts are not and what kinds of acts may in fact be acts of war," Reuters said. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC AGREES TO REMOVE “FAIRNESS DOCTRINE”; SEEKS COMMENT ON WHETHER TO TERMINATE LONG LIST OF PROCEEDINGS: House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) and Communications and Technology Subcommittee Chairman Greg Walden (R-Ore) said today, June 8, they welcomed news that FCC Chairman Julius Genachowski has agreed to remove the “Fairness Doctrine” and several related rules from the Code of Federal Regulations. Genachowski announced his intentions to strike the unconstitutional limits on free speech in response to an inquiry made by Upton and Walden last week (BloostonLaw Telecom Update, June 1). Now the lawmakers have asked for additional information on the process and timeline the agency would use to strike the offending language. In addition to the Fairness Doctrine, the FCC Chairman discussed the FCC’s plans to eliminate additional antiquated regulations. Genachowski’s letter noted that the FCC has “targeted 25 sets of unnecessary data collections for elimination” and that his staff were evaluating outdated regulations for deletion from federal law as part of the agency’s effort to comply with the Obama administration’s new regulatory policies, which were first explored by the Energy and Commerce Committee in January. Upton and Walden’s follow-up letter sent today prods the agency about its plans to identify and quickly eliminate regulations that are stifling job creation and harming innovation and economic growth. On June 3, the FCC issued a Public Notice, requesting comment on nearly 100 pages of proceedings that could be subject to termination. The Commission stated that this list may include dockets in which no further action is required or contemplated as well as those in which no pleadings or other documents have been filed for several years, but it specified that proceedings in which petitions addressing the merits are pending should not be terminated, absent the parties’ consent. The termination of a dormant proceeding also includes dismissal as moot of any pending petition, motion, or other request for relief that is procedural in nature or otherwise does not address the merits of the proceeding. Comments in this CG Docket No. 11-99 proceeding will be due 30 days after publication in the Federal Register, and replies will be due 15 days thereafter. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
CONVERGYS TO SELL MINORITY STAKES IN CINCINNATI CELLULAR PROPERTIES TO AT&T: Convergys Corp., a global relationship management company, has announced it will sell its holdings in the "cellular partnerships" located in the Cincinnati metropolitan area to AT&T for approximately $320 million in cash.
As a result of its spinoff from Cincinnati Bell in 1998, Convergys received a 34% limited partnership interest in Cincinnati SMSA and a 45% limited partnership interest in Cincinnati SMSA Tower Holdings. Convergys said he expects the sale to generate net after-tax proceeds of approximately $250 million. Convergys will update full-year guidance to reflect cellular partnership-related impacts on EBITDA, EPS, and free cash flow after the sale closes. AT&T said it expects that any impact on its earnings and cash flows from the purchase of Convergys' minority stake in these operations will be insignificant. AT&T is the general partner, managing all the cellular partnerships' business on a day-to-day basis. Convergys does not take part in this management. Cincinnati SMSA provides wireless communications in central and southwestern Ohio and northern Kentucky, while Cincinnati SMSA Tower Holdings is a cellular tower holding company for Cincinnati SMSA. Since AT&T is merely acquiring the remaining minority interest in partnerships it already controls, regulatory approvals are not required, and the companies expect the sale to close in early July 2011.
This newsletter is not intended to provide legal advice. Those interested in more information should contact the firm.