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. 26|| June 29, 2011 |
76 House Democrats Back AT&T/T-Mobile Merger
Seventy-six House Democrats have written FCC Chairman Julius Genachowski and Attorney General Eric Holder to express their support for the proposed $39 billion AT&T/T-Mobile merger.
The lawmakers, led by Rep. G.K. Butterfield (D-N.C.), asked the FCC and Justice Department (DOJ) to consider AT&T's pledge to expand its Long Term Evolution (LTE) deployment in their respective reviews of the company's acquisition of T-Mobile.
The lawmakers argued that the merger would improve access to mobile broadband service and “create thousands of jobs, including many good paying union jobs with solid benefits, which will greatly contribute to our continuing economic recovery.”
Stating that AT&T has been a “good corporate citizen,” the lawmakers urged the FCC and DOJ “to consider a number of important factors during the review process, including proposed increases in coverage to those living in rural and underserved areas.”
Consumer advocacy group Public Knowledge, which opposes the merger, said it wished Members of Congress who signed the letter had studied the deal more closely, according to Wireless Week.
“Had they done so, they would have found that AT&T’s deployment plan is only marginally better than what they have proposed before, and that under this merger, jobs will be lost, not gained,” Public Knowledge said.
BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
INSIDE THIS ISSUE
- FCC adopts Caller ID rules to prohibit “spoofing.”
- Wireless E911 Location Accuracy Exclusion Reports are now due July 28.
- Walden draft bill would reform FCC processes.
- House panel asks FCC for USF, Lifeline information.
- USDA, FCC release rural broadband report.
FCC Adopts Caller ID Rules To Prohibit “Spoofing”
The FCC has adopted rules to implement the Truth in Caller ID Act of 2009, which prohibits “spoofing” (BloostonLaw Telecom Update, March 16). Caller ID services typically identify the telephone numbers and sometimes the names associated with incoming calls, thus allowing consumers to decide whether or how to answer a phone call based on who appears to be calling. However, caller ID information can be altered or manipulated—i.e., spoofed. Increasingly, the FCC said, bad actors are spoofing caller ID information in order to facilitate a wide variety of malicious schemes, from identity theft to “swatting” (the practice of placing false emergency calls to law enforcement in order to elicit a response from a Special Weapons and Tactics (SWAT) team).
The FCC’s Order prohibits any person or entity from knowingly spoofing caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value. The Commission said it can—and will—seek substantial penalties from those who violate the Act and the rules it has adopted. Specifically, under the FCC’s new rules:
- Violators are subject to up to $10,000 for each violation, or three times that amount for each day of continuing violation, to a maximum of $1 million for any continuing violation.
- The FCC may assess fines against entities it does not traditionally regulate without first issuing a citation.
- The FCC can impose penalties more readily than it can under other provisions of the Communications Act.
The Commission said the revisions to its calling party number (CPN) rules are modeled on the Caller ID Act’s prohibition against knowingly engaging in caller ID spoofing with fraudulent or harmful intent. The rules include exemptions based on conduct the Act identifies as exempt from its prohibitions. The revised rules also include new definitions, including several modeled after definitions in the Act. As proposed in the Caller ID Act NPRM, the revised rules also specify that blocking or attempting to block one’s own caller ID is not a violation of the new rules, while clarifying that telemarketers are not relieved of their obligation to transmit caller identification information.
The FCC noted that the Act specifies that the prohibited conduct is “in connection with any telecommunications or IP-enabled voice service.” Because the FCC defines the terms “caller identification service” and “caller identification information” to encompass the use of telecommunications services and “interconnected VoIP services,” it said it does not need to specify in the rule that the prohibition encompasses calls made using telecommunications services and IP-enabled voice services, as specified in the Act.
The FCC also noted that the Act is directed at “any person,” but does not define the term “person.” In order to make clear that the rules are not limited to natural persons and to be consistent with the Commission’s current rules concerning the delivery of CPN, the FCC’s amendments to the CPN rules use the phrase any “person or entity.”
The FCC said it is not enough that a person or entity intends to defraud, cause harm, or wrongfully obtain anything of value to violate the Truth in Caller ID Act. Rather, the person or entity intending to defraud, cause harm or wrongfully obtain anything of value must facilitate the scheme through the manipulation or alteration of caller identification information, the FCC said. Moreover, it added, adopting a rule in which “knowingly” modifies the action of the caller identification service would not impose liability on caller ID spoofing services for knowingly manipulating caller identification information absent intent to defraud, cause harm, or wrongfully obtain anything of value. Nor would it ease the burden on law enforcement of proving a violation of the Act, the FCC said. Instead, it would require law enforcers to show that the provider of the caller ID service—usually a terminating carrier or VoIP provider—knew that the incoming caller identification information was manipulated or altered.
As the Commission noted in the Caller ID Act NPRM, “in many instances the caller identification service has no way of knowing whether or not the caller identification information it has receives has been manipulated.” The FCC said it does not believe Congress intended to impose liability on caller ID spoofers acting with malicious intent only upon proof that the provider of the call recipient’s caller ID service knew that the caller identification information was manipulated or altered. That would be a perverse result, wholly inconsistent with the intent of the Act and its legislative history, the FCC said.
The Act directs the Commission to exempt from its regulations (i) any authorized activity of a law enforcement agency; and (ii) court orders that specifically authorize the use of caller identification manipulation. Separately, the Act also makes clear that it “does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State or a political subdivision of a State, or of an intelligence agency of the United States.”
The Department of Justice (DOJ) requested that the Commission explicitly incorporate lawfully authorized investigative, protective, or intelligence activities into the exemptions to the Commission’s implementing rule. In light of the statutory language specifying that such activities are not prohibited by the Act and DOJ’s request that such activities be included in the exemptions to the Commission’s implementing rule, the proposed rule incorporated the two exemptions specified in the Act, and expanded the exemption for law enforcement activities to cover protective and intelligence activities.
The FCC said the legislative history of the Act makes clear that manipulation or alteration of caller ID information done without the requisite harmful intent does not violate the Act. Nothing in the FCC’s implementing rules changes that fact. Likewise, the transmission of incorrect caller ID information by carriers and providers acting without the requisite intent to defraud, cause harm or wrongfully obtain anything of value does not violate the Truth in Caller ID Act or the rules implementing the Truth in Caller ID Act. Moreover, the FCC said it agreed with DOJ that “none of the commenters who advocated for a status-based exemption to the Truth in Caller ID Act were able to articulate any scenario whereby legitimate conduct would fall within the prohibitions of the Act.” Like DOJ, the FCC said it feared that allowing any such exemptions could “create dangerous loopholes under the Act that could be exploited by criminals.” Therefore, the FCC declined to adopt any further exemptions from the Act at this time, primarily because the ones that have been presented are unnecessary.
Further, as directed by the Act, the FCC Chairman also issued a report to Congress addressing areas where the statute and the Commission’s rules may fall short of protecting consumers from harmful caller ID spoofing. The report also discusses several newer types of communications services, including text messaging and social media, and identifies spoofing issues that may arise in conjunction with these services. The report also makes the following recommendations:
- Congress should consider broadening the scope of the Truth in Caller ID Act to include a prohibition on caller ID spoofing directed at people in the United States by persons outside the United States.
- Congress should consider providing guidance whether it intended additional IP-enabled voice services, such as VoIP services that enable callers only to make outgoing calls to users of telecommunications and interconnected VoIP services, to be brought within the scope of the Truth in Caller ID Act.
- Congress should consider giving the Commission appropriate authority to regulate third-party spoofing services.
- Congress should consider modifying the Truth in Caller ID Act to explicitly state that text messaging is covered by the scope of the Truth in Caller ID Act.
BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
Wireless E911 Location Accuracy Exclusion Reports Are Now Due July 28
The FCC has extended until July 28 the deadline for wireless carriers to submit “Wireless E911 Location Accuracy Exclusion Reports.” Under the FCC’s E911 Location Accuracy Second Report & Order, adopted last fall, the Commission required wireless carriers using either network-based or handset-based location technologies to file a list of specific counties or portions of counties where they are using their “exclusions.” Such exclusions referred to areas where triangulation was not feasible for network-based technologies, and, for handset technologies, where heavy forestation limited handset accuracy (BloostonLaw Telecom Update, September 29, 2010).
The Commission allows carriers to exclude from E911 coverage a limited portion of its licensed territory, so long as the excluded areas are identified in the report.
Now, the Commission, on its own motion, has issued an Order clarifying the requirements for the Exclusion Reports. The clarifications include the following:
1. If a wireless carrier has not received a valid Public Safety Answering Point (PSAP) request for E911 Phase II service and accordingly has not deployed E911 Phase II service, the carrier should not list the county, or portion thereof, or the PSAP service area in its listing of exclusions in its Exclusion Report. However, once a PSAP makes a valid request for E911 Phase II service and a carrier deploys Phase II service but still determines that it cannot meet the applicable location accuracy requirements, the carrier must file an updated report within 30 days of the date of deployment to reflect such a change.
2. With respect to carriers using handset-based location technologies, the E911 Location Accuracy Second Report and Order provides that carriers may exclude up to 15 percent of counties or PSAP service areas from the 150 meter location accuracy standard based upon heavy forestation. The FCC clarified that this exclusion does not apply to a 15 percent area of either a county or a PSAP service area. Instead, the 15 percent exclusion permits carriers to exclude up to 15 percent of counties or PSAP service areas that are served by the carrier.
3. Noting that the first location accuracy benchmark for network-based carriers is January 18, 2012, the FCC clarified that network-based carriers that anticipate that they will not be able to meet the first benchmark may file a waiver request after the deadline for filing their Exclusion Reports, provided that they file the request in a timely manner to afford the Commission sufficient time to act on the request in advance of the first benchmark deadline.
4. The FCC found that the timely filing of a request for waiver relief is sufficient to meet the “expectation that carriers failing to meet any particular benchmark will promptly inform the Commission” without prematurely overburdening its administrative processes to handle such requests.
5. The FCC advised wireless carriers to file Exclusion Reports in a narrative format with a table or appendix that provides a detailed listing of the excluded areas. The narrative portion of the report should include the following information:
- A description of whether the wireless carrier is using network-based or handset-based technologies at the time of filing the Exclusion Report.
- A supporting affidavit from an officer or director of the wireless carrier, who serves as the official or contact person having chief oversight responsibility for monitoring the overall status of location accuracy compliance under Section 20.18(h). This affidavit should include the date of filing and the official’s title, business address, and phone number.
- The table or appendix to the Exclusion Report should include the following information:
- (a) A list of the counties or portions of counties, or PSAP service areas, as applicable, for which the wireless carrier is claiming an exclusion in accordance with the applicable rules; and
- (b) For each excluded area, a brief description of the reason for the exclusion, e.g., insufficient number of cell sites in the area to support network-based triangulation; GPS-assisted location accuracy is limited due to heavy forestation.
BloostonLaw has developed an Exclusion Report template. Interested clients should contact us for this template.
Wireless carriers should be aware that their obligation to furnish E911 Phase II service rests on whether a PSAP has made a valid request. In order for a request to be valid, the PSAP must be capable of receiving and utilizing the data elements associated with Phase II service, and the PSAP must have a mechanism established for recovering its costs.
Separate from the Exclusion Report requirement, carriers that have chosen to deploy network-based location technology (most GSM carriers) should keep in mind that their networks must meet an E911 accuracy standard of 100 meters for 67 percent of calls in 60 percent of counties or PSAP service areas by January 18, 2012. Carriers that have chosen to deploy handset-based location technology (most CDMA carriers) must meet an E911 accuracy standard of 50 meters for 67 percent of calls, and 150 meters for 80 percent of calls, on a per-county or per-PSAP basis, by January 18, 2013.
We note that the Exclusion Reports must be submitted to the FCC, the National Emergency Number Association (NENA), the Association of Public-Safety Officials International (APCO), and the National Association of State 9-1-1 Administrators (NASNA).
BloostonLaw contacts: Hal Mordkofsky, and Cary Mitchell.
Walden Draft Bill Would Reform FCC Processes
Rep. Greg Walden (R-Ore.) is drafting legislation to reform FCC processes. At last week’s House Communications and Technology Subcommittee hearing, the panel discussed the provisions in the draft. The proposed bill would:
- Require the Commission to conduct an economic analysis of industries that would be affected by the rules before initiating a new rule-making and provide certain minimum amounts of time for comments.
- Prevent the Commission from imposing burdens on consumers or industry unless it first identifies a market failure and consumer harm justifying the burden. If such rules are needed, the Commission must perform a cost-benefit analysis and create performance measures for the rule’s continued evaluation.
- Ensure any conditions imposed on transactions are tailored to transaction-specific harms and within the Commission’s general rule-making authority.
- Promote a renewed focus on the economic opportunities and challenges for the communications sector with a biennial report to Congress from the Commission giving a big-picture view of what’s happening in the industry, the challenges for jobs and economic growth, and the Commission’s plans to address those issues.
- Enhance consistency and transparency in the Commission's operations by requiring the FCC to establish its own internal procedures for: (1) adequate review and deliberation regarding pending orders; (2) publication of orders before open meetings; (3) initiation of items by bipartisan majorities; and (4) minimum public-comment periods.
- Establish “shot clocks” so that parties know how quickly they can expect action in certain proceedings and provide a schedule for when reports would be released.
- Empower the Commission to improve the way it conducts business and operate more efficiently with sunshine reform, allowing three or more Commissioners to meet for collaborative discussions so long as certain safeguards are in place.
OMB Asked To Help In FCC Self-Review
Republicans on the House Energy and Commerce Committee have written to Cass Sunstein, administrator of the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB), urging his office to work with the FCC to ensure the agency's voluntary self-review of regulations meets the same standards as the administration's government-wide effort to remove burdensome federal regulations. As an independent agency, the FCC is not covered by the executive order mandating the review, but the FCC agreed with a request from the House committee to conduct a full review of current regulations to identify those that could pose barriers to job creation. Chairman Fred Upton (R-Mich.) and Reps. Greg Walden (R-Ore.) and Cliff Stearns (R-Fla.) asked Sunstein for details on how his office is working to convince independent agencies of the importance of the reviews even though they are not required. The FCC has announced it would delete the so-called Fairness Doctrine and other outdated rules by August, and it has opened a proceeding to identify “dormant” proceedings that could be terminated. In a related matter, Rep. Robert Latta (R-Ohio) has introduced HR 2289, the FCC ABCs Act. This is a short bill that directs the FCC to “include in each notice of proposed rulemaking and in each final rule issued by the Commission an analysis of the benefits and costs of the proposed rule or final rule, respectively.”
BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
House Panel Asks FCC For USF, Lifeline Information
The House Energy and Commerce Committee has asked the FCC for additional information concerning the Universal Service Fund program (USF). The request is a supplement to a June 15 letter to the Commission on the same issue. Specifically, the Committee said it is seeking more targeted data, as well as new data regarding the status of the low-income support programs. Thus, the Committee asked for the following information by July 22:
1. A state-by-state list of total disbursements of USF support for each of the four USF Programs, including an estimate of net contributor states and net recipient states. In addition, the Committee wants a listing of the top 10 recipients of high-cost support by state for 2008, 2009, and 2010.
2. An updated list of states that have a state-wide universal service fund and a brief explanation of the basis for contribution and what the fund supports.
3. A state-by-state list of competitive eligible telecommunications carriers (CETCs) and the names of such entities grouped by holding company. In addition, the panel wants the FCC to denote those carriers that do not use their own facilities to provide the supported services and those carriers that are only eligible to participate in the low-income program.
4. An updated list of the top 10 recipients, by holding company, of high-cost support for 2008, 2009, and 2010. In addition, the Committee wants a table showing the amount received for each of the high-cost programs, total high-cost support, and per-line high-cost support received during that three-year period by each holding company. As with the previous request, if a company receives high-cost support for more than one corporate entity, the FCC is asked to list separately the name and location of all entities receiving support, but attribute the total amount to the corporate parent.
5. An updated list of the 10 incumbent service areas that received the largest per-line high cost subsidies in 2008, 2009, and 2010. For each service area, the FCC should include:
- the geographic scope of the incumbent service area;
- the total high-cost support received by the incumbent carrier, broken down by high cost program, as well as the per-line support amount;
- if the incumbent is eligible to disaggregate and target high-cost support, whether it has done so;
- if the incumbent is a rural telephone company, whether its service area has been redefined;
- a list of CTECs in these service areas, if any;
- the wire centers each CETC has been designated to serve within the incumbent service area;
- the total support amounts received by each of these competitive eligible telecommunications carriers for 2008, 2009, and 2010; and,
- a list of other competitors that do not receive high-cost support along with the wire centers they serve, to the extent that information is available.
6. A list of the 10 incumbent service areas that received the largest amount of total high cost support in 2008, 2009, and 2010.
7. An updated list of the 10 incumbent service areas with the most eligible telecommunications carriers — in 2008, 2009, and 2010.
8. The total amount of low-income support disbursed for 2008, 2009, and 2010 for each program, nationally and on a state-by-state basis.
9. A list of the top 10 recipients, by holding company, of low-income support for 2008, 2009, and 2010.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
USDA, FCC RELEASE RURAL BROADBAND REPORT: The Department of Agriculture (USDA) has joined the FCC in releasing a report to Congress titled, Bringing Broadband to Rural America: Update to Report on a Rural Broadband Strategy, for placing new emphasis on the need to support the delivery of broadband to rural communities. The report, prepared by the FCC in consultation with USDA’s Rural Utilities Service (RUS), noted that broadband deployment and adoption remains a top priority for the Obama Administration through ongoing loan and grant programs administered by RUS and regulatory reform measures and tools set forth by the FCC. However, the report notes that more needs to be done to fulfill the Administration’s objective for widespread deployment of affordable, quality broadband services to every community. The report states that approximately 28 percent of rural residents still lack access to the kind of broadband that most Americans take for granted. Since publication of the FCC’s 2009 broadband report, RUS has invested over $5 billion in funding for broadband, including approximately $1.5 billion in loans for telecommunications infrastructure that is broadband capable, $13.4 million in grants for broadband in remote rural areas, $71 million in distance learning and telemedicine grants, and $3.5 billion in broadband funding awarded under the American Recovery and Reinvestment Act of 2009. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
AMENDMENT WOULD BAR FCC FROM FUNDING LIGHTSQUARED UNTIL THERE IS PROOF SYSTEM WON’T INTERFERE WITH GPS: The House Appropriations Committee last week approved an amendment to the Fiscal Year (FY) 2012 appropriations bill that would prohibit the FCC from spending any funds to grant LightSquared's conditional spectrum permit until the company is able to prove its network will not cause wide-spread blackouts in GPS service. The amendment, sponsored by Reps. Steve Austria (R-Ohio) and Kevin Yoder (R-Kan.), would prohibit FCC funding "to remove the conditions imposed on commercial terrestrial operations in the Order and Authorization adopted by the Commission on January 26, 2011 (DA 11-133), or otherwise permit such operations until the Commission has resolved concerns of potential widespread harmful interference by such commercial terrestrial operations to commercially available Global Positioning System (GPS) devices." If approved by the full House and Senate, the amendment could effectively stop the FCC from allowing LightSquared to launch its Long Term Evolution (LTE) network until the company can prove its service won't affect GPS systems. LightSquared is seeking to deploy a mobile broadband network in spectrum near bandwidth used by GPS, raising concerns that the service could knock out sensitive GPS receivers. As noted by Wireless Week, an earlier version of the appropriations bill stated that the committee was "aware of concerns related to possible interference to [GPS] devices due to terrestrial broadband service" and was waiting for LightSquared's final report on the problem from an FCC-mandated study. That report is due July 1. In the meantime, LightSquared has recently announced a new tactic to avoid interference, by moving its operations to spectrum further removed from the GPS band. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell.
COMMENT DATES SET FOR RURAL HEALTH CARE NPRM: The FCC has set comment dates for its Notice of Proposed Rulemaking (NPRM) seeking comment on whether to make certain “grandfathered'' rural health care providers permanently eligible for discounted services under the rural health care program (BloostonLaw Telecom Update, June 22). Comments in this WC Docket No. 02-60 proceeding are due July 27, and replies are due August 11. Grandfathered providers do not currently qualify as “rural,'' but play a key role in delivering health care services to surrounding regions that do qualify as “rural'' today. Thus, the FCC said it takes these actions to ensure that health care providers located in rural areas can continue to benefit from connecting with grandfathered providers, and thereby provide health care to patients in rural areas. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
COURT SAYS FCC’s “ISP REMAND ORDER” APPLIES TO CLECs: The 9th U.S. Circuit Court of Appeals in San Francisco has reversed a lower court and ruled that the FCC’s Internet Service Provider (ISP) Remand Order’s compensation regime applies to ISP-bound traffic exchanged between two competitive local exchange carriers (CLECs). In AT&T v. Pac-West Telecom, AT&T, which operates as a CLEC in California, argued that the ISP Remand Order applies when the carrier originating the call and the carrier terminating the call are both CLECs. Pac-West (also a CLEC) and the California Public Utilities Commission (CPUC) contended that the ISP Remand Order’s compensation regime applies only to traffic between a CLEC and an incumbent LEC (ILEC). The CPUC agreed with Pac-West’s limited reading of the reach of the compensation regime, finding it inapplicable to the ISP-bound traffic originating with AT&T and terminated by Pac-West, and so it assessed against AT&T charges consistent with Pac-West’s state-filed tariff. AT&T then sued Pac-West and the CPUC in federal district court, alleging that the ISP Remand Order preempted Pac-West’s attempts to assess AT&T charges for ISP-bound traffic based on state-filed tariffs. The district court granted summary judgment, agreeing with Pac-West’s argument that the ISP Remand Order does not apply to CLEC-to-CLEC traffic. The 9th Circuit noted that “arbitrage,” which the FCC was attempting to remedy in its ISP Remand Order, “in no way depends on the participation of an ILEC. The ISP Remand Order reflects this reality, imposing its rules on all LECs, with the exception of the ‘mirroring’ rule, which the FCC singled out as applicable only to ILECs.” BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC GIVES USAC FURTHER DIRECTIVE ON LIFELINE ISSUES: The FCC has directed the Universal Service Administrative Company (USAC) to follow up on last month’s Commission directive to begin conducting in-depth data validations (IDVs) targeted at uncovering duplicative claims for Lifeline support. The Commission asked USAC to conduct state-specific IDVs after USAC audits undertaken in the course of ongoing oversight over the Low Income Program revealed that multiple eligible telecommunications carriers (ETCs) are seeking reimbursement for Lifeline service provided to the same individual, and in some instances, to more than one individual living in the same residence. The FCC’s June 21 letter provides guidance to USAC on the process it should follow in identifying and resolving duplicative Lifeline claims found through IDVs conducted in specific states or at any other time USAC becomes aware of duplicative claims for Lifeline support. Commission orders and rules do not currently specify a process for ETCs and USAC to follow, however, when they learn that a subscriber is receiving duplicative Lifeline services. To address the problem of wasteful, duplicative Lifeline support, the Commission has issued an order adopting rules aimed at ensuring that qualifying low income consumers receive no more than a single Lifeline benefit. The order also directs the Wireline Competition Bureau to work with USAC to implement a process to resolve duplicative claims identified through the IDV process. This duplicate resolution process is not intended to be a permanent solution, but rather an interim one that will be in place while the Commission considers broader reforms to the Lifeline/Link Up program. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
WINNING BIDDERS IN COMMERCIAL BROADCAST AUCTIONS MUST SUBMIT FILING FEE WITH LONG-FORM APPLICATIONS: The FCC has amended its rules to clarify that winning bidders in auctions of commercial broadcast spectrum are required to submit an application filing fee with their post-auction long-form applications. This clarification is intended to rectify a possible inconsistency throughout the Commission's rules, and in an earlier Commission Order. The FCC noted an inconsistency between Implementation of Section 309(j) of the Communications Act—Competitive Bidding for Commercial Broadcast and Instructional Television Fixed Service Licenses, First Report and Order, in which the Commission required that winning broadcast auction bidders pay filing fees with their post-auction long-form applications, and 47 CFR 1.1104, the Schedule of Charges for Media Bureau Service filings, which requires payment of a fee when the long-form application is filed, on the one hand, and 47 CFR 1.2107(c), which suggests that a filing fee need not accompany a high bidder's long-form application, on the other. To rectify this inconsistency and conform the rules to the Commission's stated intent in the Broadcast Competitive Bidding First Report and Order, the Commission proposed to amend 47 CFR 1.2107(c) to read, “Except as otherwise provided in Sec. 1.1104 of the rules, high bidders need not submit an additional application fee with their long-form applications.” By amending 47 CFR 1.2107(c), the Commission clarified that high bidders filing long-form applications for media services must still pay any fees required by 47 CFR 1.1104 when filing their post-auction long-form application. The rule change in this Second Order will become effective June 28. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino.
RLSA BECOMES NEW TRS FUND ADMINISTRATOR: On March 7, 2011 the FCC awarded Rolka Loube Saltzer Associates, LLC (RLSA), a contract to administer the Interstate TRS Fund support services. As a result, administration of the TRS Fund is being transitioned from the current TRS Fund Administrator, the National Exchange Carrier Association (NECA), to RLSA. Effective Friday, July 1, 2011, RLSA in its role as the TRS Fund Administrator, will oversee collections and distribution from the TRS Fund. Therefore, on July 1, 2011, all TRS Fund related payments will be handled by M&T Bank in Baltimore, Maryland. NECA, the current TRS Fund Administrator through June 30, 2011, uses the services of Bank of New York Mellon in Pittsburgh, Pa. TRS contributors will receive an email from RLSA containing instructions for using a secure online portal and bill payment options, at r-l-s-a.inlattice.com. TRS contributors that have not provided an email address on their most recently filed Form 499-A will be contacted via regular US mail by RLSA. Additional information concerning RLSA and TRS Fund administration can be found at r-l-s-a.com/TRS. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
BARTON INTRODUCES ONLINE POKER BILL: Rep. Joe Barton (R-Texas) introduced a bill last Friday that will regulate internet poker. Barton was joined by original co-sponsors Rep. Shelley Berkley (D-Nev.), Rep. John Campbell (R-Calif.), Rep. Steve Cohen (D-Tenn.), Rep. John Conyers (D-Mich.), Rep. Barney Frank (D-Mass.), Rep. Michael Grimm (R-N.Y.), Rep. Mike Honda (D-Calif.), Rep. Peter King (R-N.Y.), Rep. Ron Paul (R-Texas), Rep. Ed Perlmutter (D-Colo.), Rep. Linda Sanchez (D-Calif.). The bill would create an interstate licensing program for internet poker sites, but at the same time allow states to opt out if they don’t want to participate. At this moment, Barton said, millions of law-abiding citizens are still playing poker in jurisdictions all over the world, many in places with weak or less than desirable regulatory environments that provide no certainty of legitimacy or safety. This bill will protect them, he said. The lawmakers believe this is an issue of personal freedom and that the government shouldn't stop people from playing a game of skill. “Poker is an all-American game, and it’s a game that requires strategy and skill. Millions of Americans play poker online. Although it’s legal to play for money, it’s illegal to process the transactions that allow players to collect their earnings,” said Rep. Barton. “We want to have an iron-clad system to make sure that those who play for money are playing in an honest, fair system where they can reap the benefits of their winnings. To put it simply, this bill is about having the personal freedom to play a skill-based game you enjoy without fear of breaking the law.” BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
BloostonLaw Private Users Update
Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP
[Portions reproduced here with the firm's permission.]
Parties Continue to Oppose LightSquared Over Potential 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. If your operations would be adversely affected by interference to GPS devices, you should contact us promptly to weigh in on the LightSquared issue.
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.
Narrowbanding May Require Equipment Replacement
As we have previously advised our clients, the FCC has adopted rules that will require radio systems in the frequency bands 150-174 MHz and 470-512 MHz using 25 kHz bandwidth channels to reduce the bandwidth of their systems to not more than 12.5 kHz, or employ a technology that achieves the narrowband equivalent of one channel per 12.5 kHz of channel bandwidth (voice) or 4800 bits per second per 6.25 kHz bandwidth or before January 1, 2013. Meeting the narrowbanding requirement has two elements: (1) Making sure your license is modified to authorize the use of narrowband emissions, and (2) making sure your equipment is actually capable of narrowband operation. We have been working with our retainer clients to help them modify their licenses as required, and will continue to do so as the January 2013 deadline approaches (Licensees without a retainer can contact us for licensing assistance as well). But licensees must also take steps to make sure their equipment meets the narrowbanding requirement by the deadline. Sometimes existing equipment either already complies or can be adjusted to operate in narrowband mode. But some equipment (especially older models) may need to be outright replaced.
Some vendors are now actively marketing narrowbanding solutions to Private Land Mobile Radio Service licensees. For instance, Daniels Electronics Ltd., a Canadian company (www.danelec.com), is advertising a family of VHF and UHF base stations and repeaters that support wideband, narrowband and cross-band operation. Other vendors are likely to focus their efforts on this issue as the narrowbanding deadline approaches. Our clients should consult their equipment vendor well in advance of the deadline to find out if their existing equipment needs to be replaced or adjusted to meet the narrowbanding requirement. They should also verify with their vendor that any replacement equipment has be type-certified by the FCC for narrowband operation under Part 90 of the FCC’s Rules.
BloostonLaw contacts: Gene Maliszewskyj, John Prendergast, and Richard Rubino.
FCC Seeks Further Comment On Fixed Service Sharing In 7 GHz and 13 GHz 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.
FCC Launches Investigation On Maritime’s Eligibility to Hold FCC Licenses Due to Alleged Spectrum Auction Abuses, Other Violations
The FCC has commenced a hearing proceeding to determine whether Maritime Communications/Land Mobile, LLC is qualified to remain an FCC licensee, and as a consequence whether its licenses should be revoked, and pending applications denied. The issues designated for hearing include whether Maritime should be ordered to repay to the U.S. Treasury the full amount of bidding credits that it received as a result of claiming designated entity status in the FCC’s AMTS spectrum auction (Auction No. 61); whether a fine should be issued against Maritime for violations of the Commission's rules; whether Maritime and its principals should be prohibited from participating in FCC auctions; and whether Maritime's licenses for its site-based AMTS stations cancelled automatically for lack of construction or permanent discontinuance of operation in violation of the Commission's rules.
Specifically, the FCC said there are substantial and material questions of fact as to whether Maritime (i) improperly received a $2.8 million bid credit in the auction by claiming it qualified for small business status; (ii) repeatedly made misrepresentations to and lacked candor with the Commission in connection with its participation in Auction No. 61 and the claimed bidding credit; (iii) failed to maintain the continuing accuracy and completeness of information furnished in its still pending auction application; and (iv) purports to hold authorizations that have cancelled automatically for lack of construction or permanent discontinuance of operation. In both its short-form and long-form auction applications filed in 2005, the FCC said, Maritime disclosed only the interests of Maritime's named principal Sandra M. DePriest and her affiliates, and reported the revenues of Ms. DePriest’s businesses as part of its showing that Maritime qualified for small business bid credits. Maritime claimed that Sandra DePriest was the sole officer and key employee of Maritime and appears to have concluded that because her husband, Donald R. DePriest, was not an “officer” or “director” of Maritime, his interests were not relevant to the designated entity analysis, according to the FCC. However, the agency added, Maritime was obligated to disclose Donald DePriest's revenues pursuant to the spousal affiliation requirements set forth in Sec. 1.2110 of the Commission's rules.
Furthermore, the FCC said there is credible evidence suggesting that Donald DePriest was a real party in interest behind Maritime and exercised de facto control of Maritime—both of which would also require attribution of revenues generated by his business interests under the FCC’s rules governing bid credit eligibility. If his revenues had been added, the FCC expected Maritime would not have qualified for small business status.
Petitions to intervene may be filed on or before June 23, 2011. All filings should reference EB Docket No. 11-71. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell.
FCC Announces Revised Application Fees
Effective June 21, the application fees charged to licensees and permittees by the FCC will increase to reflect the change in the Consumer Price Index-Urban (CPI-U). Section 8(b) of the Communications Act requires cost-of-living adjustments to the application fee schedule every two years after October 1, 1991. Increases in the dollar amount of all Section 8 application fees are based on the percentage change in the CPI-U from the date of enactment of the legislation.
The FCC proposes to increase the regulatory fee by $5 per year for marine coast, PLMRS (shared use), aircraft and aviation ground stations. This means that the application fee for these services for new stations and for renewal of license would increase by $50, since the license terms run for ten years.
The new Schedule of Application Fees reflects the net change in the CPI-U of 7.24 index points or 3.5 percent, calculated from October 2007 through October 2009 in accordance with Section 1.1115 of Part 1 of the Commission’s Rules. All revenues generated by Section 8 Application Fees are deposited in the General Fund of the United States Treasury.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino.
Bosch Granted Waiver For “Wallscanner” Device
The FCC has granted a request by Robert Bosch, GmbH, to waive Section 15.503(h) of its rules for Bosch’s Wallscanner D-tect 150 Professional device and for functionally identical versions of that device. This will permit Bosch to import and market its wallscanner device upon receiving an FCC equipment authorization and complying with all other requirements of the FCC’s rules, including the technical and operational requirements for unlicensed ultra-wideband imaging systems in Section 15.509, the Commission said. The agency found that granting this waiver request is in the public interest in that it will allow deployment of a product with beneficial applications in building construction, as well as inspection and maintenance of buildings in the United States. Because use of the wallscanner device is not limited to government/public safety entities, this device may prove useful for companies engaged in construction/restoration of buildings, installation of wiring, and other activities.
In its request, Bosch stated that its wallscanner device is an ultra-wideband (UWB) imaging device for use by skilled professional workers in the building and construction trades (such as professional building inspection and structural engineers) for detection of ferrous and non-ferrous metals, electric cables, wooden beams, plastic pipes and structural flaws within various types of construction materials. Bosch further stated that the wallscanner device is currently used in Europe, Canada, and Asia and meets all technical requirements of the Commission’s Part 15 rules applicable to UWB devices.
Bosch sought a waiver of the Commission’s rules because its device does not satisfy the definitions or eligibility use restrictions for imaging systems in the UWB rules. Section 15.503(h) defines a “wall imaging system” as a “field disturbance sensor that is designed to detect the location of objects … or to determine the physical properties within the ‘wall’ [which is a] physical structure that is dense enough and thick enough to absorb the majority of the signal transmitted by the imaging system.” The rule expressly excludes “products such as ‘stud locators’ that are designed to locate objects behind… walls that are not capable of absorbing the transmitted signal.” Section 15.509 of the rules allows the operation of wall imaging systems and limits their use to parties eligible for licensing under Part 90 of the Commission rules for certain purposes, including construction.
Bosch stated that it may not necessarily be the case that a wall or other structure scanned by the Bosch device will be dense and thick enough to absorb the entirety of the transmitted radio signal; therefore, its device will not necessarily meet that part of the definition. Bosch also stated that its wallscanner device includes as one of its operating modes a “stud locator” function which would preclude its classification as a wall imaging system.
According to the FCC, Section 15.503(i) defines a “through-wall imaging system” as “a field disturbance sensor that is designed to detect the location or movement of persons or objects that are located on the other side of an opaque structure such as a wall or … [including] products such as “stud locators” that are designed to locate objects behind … walls that … [do not] absorb the transmitted signal.” Bosch noted that, if its imaging device were classified as a “through-wall imaging system,” its intended use would not comply with Section 15.510(b) which restricts the use of such systems to law enforcement, emergency rescue of fire-fighting organizations that are under the authority of a local or state government.
The FCC determined that a waiver of the definition in 15.503(h) for the Bosch wallscanner can be granted without increasing the potential for harmful interference. Hence, granting this waiver will not undermine the purpose of the rules. Finally, there is a stronger public interest benefit in granting this waiver than in strictly applying the rules, the Commission said.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino.
State of Florida Granted Trunking Waiver
Subject to certain conditions, the FCC has granted a State of Florida waiver request to operate 700 MHz repeaters in the conventional, i.e., non-trunked, mode on up to eight interoperability channel sets. Florida currently is licensed for up to 100 deployable 700 MHz repeaters operating in the non-trunked. Florida seeks a waiver of Section 90.531(b)(1)(iii) of the Commission’s rules to enable it to operate these repeaters in the trunked mode.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino.
FCC Reminds Boaters Of Marine Safety Rules
As the summer boating season ramps up, boaters are urged to familiarize themselves with marine safety communication requirements, and ensure that their equipment is operating properly. The FCC regulates marine communications in cooperation with the United States Coast Guard, which monitors marine distress frequencies continuously to protect life and property. All users of marine radio, whether voluntary or compulsory, are responsible for observing both FCC and Coast Guard requirements. Each summer, the United States Coast Guard reports a significant number of false distress calls and incidents ranging from a simple lack of courtesy to intentional interference. The Enforcement Bureau intends to strictly enforce the Rules related to marine radio operations. Ensuring the integrity of safety and distress frequencies is vital to safeguarding lives and property. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino.
This newsletter is not intended to provide legal advice. Those interested in more information should contact the firm.