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. 14|| April 6, 2011 |
House Continuing Resolution Threatens RUS Broadband Program
House Appropriations Chairman Hal Rogers (R-Ky.) last Monday introduced a third temporary funding measure – known as a Continuing Resolution (CR) – to prevent a government shutdown this Friday, April 8. The CR would keep the government running for an additional week while cutting a total of $12 billion in discretionary spending. Included in the cuts, however, is $39 million from the Rural Utilities Service (RUS) Broadband Loan Program. As NTCA has noted, this cut is in addition to the $29 million slashed from the program when Congress approved the last CR a few weeks ago. Specifically, the new CR includes “approximately $1.4 billion in cuts to Agriculture programs com-pared to last year’s level. Some of these cuts include ap-proximately $43 million in Department of Agriculture administrative costs including rent, facilities, and operations, $137 million from rural development and conservation accounts, $350 million from a dairy industry program that was in-tended to be one-time funds, and $39 million in unused broadband loan program funding.” As NTCA stated, the Obama Administration did not propose new funding for the program for FY 2012 because they were counting on this carry-over being available. If this second cut comes to pass, the RUS Broadband Loan Program will be in serious jeopardy. At our deadline, the fate of the CR was not clear, as President Obama had said he would reject this or any short-term spending proposal that was not a “technical ‘paperwork’ bridge to a larger bipartisan agreement,” as Politi-co reported. NTCA is urging its members to contact their congressional delegation about this issue, although the time for doing so is short.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
INSIDE THIS ISSUE
- FCC sets comment cycle for Native Nations NOI.
- FCC sets comment dates for Spectrum over Tribal Lands NPRM.
- Copps expresses concerns over AT&T/T-Mobile deal.
- DoJ seeks NRUF, LNP data in AT&T/T-Mobile probe.
- FCC gives USAC guidance on interim caps for past ALLTEL, AT&T mergers.
FCC Sets Comment Cycle For Native Nations NOI
The FCC has set a comment cycle for its Native Nations Notice of Inquiry (NOI), in which it seeks consultation and comment on 11 specific categories of communications issues affecting Native Nations and Americans living on Tribal lands—the lands of federally recognized American Indian Tribes and Alaska Native Villages—as well as Hawaiian Home Lands (BloostonLaw Telecom Update, March 9). Comments in this CG Docket No. 11-41 are due May 20, and reply comments due July 5. Our clients providing service to Tribal Lands will want to ensure that a realistic picture of current capabilities and issues emerges in this proceeding, and that the rule changes provide fair treatment to existing service providers.
According to the FCC, the first five sections of the NOI seek comment on issues that cut broadly across the many different substantive areas within the Commission's regulatory mission. With a better understanding of these critical issues, the Commission says it can more effectively work with Native Nations to break down barriers and find genuine solutions. For example, the NOI seeks comment on whether a Native Nations priority, analogous to the one presently found in the Commission's rules for radio broadcast licensing, should be adopted more broadly to make it easier for Native Nations to provide other communications services to their own communities.
The Native Nations NOI also seeks comment on the ba-sic tools that Native Nations need in order to build sustainable business and deployment models to address the significant communications infrastructure needs, market challenges, and demand aggregation requirements specific to Tribal lands. Further, recognizing the uniqueness of Tribal lands, the document seeks comment on the challenges and barriers faced by Native Nations in achieving broadband adoption and utilization. The Native Nations NOI also seeks comment on whether the Com-mission should adopt a single definition of Tribal lands for all communications-related regulation and, if so, precisely what that definition should encompass.
The other issues on which the Native Nations NOI seeks comment delve into specific substantive areas of the Commission's existing rules. For example, the Native Nations NOI seeks comment on the Universal Service Fund's eligible telecommunications carrier (ETC) desig-nation process on Tribal lands, including the nature and extent of those designations and requirements for the consultative process with Native Nations. The Native Nations NOI also examines public safety and interoperability challenges on Tribal lands, including the widespread lack of 911 and E-911 services.
The Native Nations NOI also seeks comment on how to improve the Commission's processes and Best Practices—pursuant to Section 106 of the National Historic Preservation Act—for the protection of Native sacred sites and consultation with Native Nations and Native Hawaiian Organizations in the review of communications tower sitings. In addition, the Native Nations NOI seeks comment on ways to make satellite-based services available for Native Nations, by addressing issues of cost, equipment, and market-entry points for Native Nations.
The Native Nations NOI seeks comment on the extent to which persons with disabilities living on Tribal lands experience barriers in using communications services and advanced technologies, and asks how the Commission can address those barriers. The Native Nations NOI also asks how the Commission can best structure a productive and efficient nation-to-nation consultation process unique to the mission of the Commission and the needs of Native Nations, recognizing that many consultations with the Federal government are occurring on many different and inter-related issues at any given time.
Finally, recognizing that the Native Nations NOI may not cover all of the communications challenges facing Native Nations and their communities, the document invites comment on other matters involved in the provision of communications services to Native communities that may warrant future Commission action.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC Sets Comment Dates For Spectrum Over Tribal Lands Rulemaking
The FCC has set comment dates for its Notice of Pro-posed Rulemaking (NPRM) regarding spectrum over Tri-bal Lands. Generally, the NPRM seeks comment on a range of proposals and issues with the objective of promoting greater use of spectrum over unserved and underserved Tribal lands. (BloostonLaw Telecom Update, March 9). Comments in this WT Docket No. 11-40 proceeding are due May 19, and replies are due June 20. Our clients with spectrum that covers Tribal Lands will want to make sure that any spectrum access measures that would affect existing radio li-censes deal fairly with the license holders.
The FCC seeks comment on five specific proposals:
First, it proposes to expand the current Tribal licensing priority to Wireless Radio Services, establishing a licensing priority that would be applicable to licenses for fixed and mobile wireless services and available to qualifying Tribal entities for unserved or underserved Tribal lands, where such Tribal lands are within the geographic area covered by an unassigned Wireless Radio Services li-cense.
Second, the Spectrum over Tribal Lands NPRM seeks comment on a Tribal proposal to create a formal negotiation process under which Tribes could work with incumbent wireless licensees to bargain in good faith for access to spectrum over unserved or underserved Tribal lands. Under this proposal, a Tribal entity could request initiation of negotiations at any point in the term of a li-cense, provided that the Tribal entity can demonstrate that the licensee failed to negotiate in good faith in connection with a previous attempt by the Tribal entity to negotiate. Wireless incumbents should be concerned as to whether this option will preclude the existing licensee from being the service provider to the Tribal Lands that exist within its licensed service area. Al-so, if a licensee is building out its license area using a particular format (e.g., GSM) and Tribal entity is able to force a partitioning of an area that would be operated using a conflicting format or other technical parameters, this may make it difficult for the licensee to complete its coverage as needed to satisfy its business case.
Third, the NPRM seeks comment on a Tribal proposal that the Commission establish a process by which a qualifying Tribal entity could require a licensee to build or divest a geographic area covering unserved or under-served Tribal lands within its license area. This proposal would be applicable only in those situations where a licensee has already satisfied the construction requirements of a license. Again, there may be room for con-cern if the incumbent licensee has plans to cover a Tribal area in accordance with its buildout schedule, but the new rule may force the incumbent to rear-range its schedule in a way that interferes with the sustainability of its wireless project.
Fourth, the NPRM proposes to establish a Tribal lands construction safe harbor for wireless service providers. Under this proposal, a licensee that provides a specified level of service to the Tribal land areas within the geo-graphic area of its license would be deemed to have met its construction obligations for its entire service area. This option could prove to be a win-win for the Tribal entity and the licensee.
Fifth, the Spectrum over Tribal Lands NPRM explores potential modifications to the Commission's existing Tri-bal lands bidding credit rules. A Tribal lands bidding credit is available to any winning bidder in a Commission spectrum auction that commits to deploying facilities and providing wireless service to qualifying Tribal lands. The NPRM seeks comment on modifications to the Tribal lands bidding credit rules such as the extension of the current 3-year construction deadline.
The FCC said that three of the five proposals could create new opportunities for Tribes to gain access to spectrum through Wireless Radio Services licenses. The other two proposals are designed to create new incentives for licensees to deploy wireless services on Tribal lands. The Commission seeks comment on the following:
New spectrum access opportunities
- A proposal to expand the current Tribal licensing priority to Wireless Radio Services, creating opportunities for access to Wireless Radio Services licenses not yet assigned;
- A Tribal proposal to utilize the power of secondary markets, by creating a formal negotiation process under which Tribes could work with incumbent wireless licensees to bargain in good faith for access to spectrum over unserved or underserved Tribal lands; and
- A Tribal proposal to use spectrum lying fallow through an innovative build-or-divest process that would allow Tribes to build out in areas where licensees have met their construction requirement, but are not serving the Tribal lands within their service areas.
Service deployment incentives
- A proposal to build on the Commission's previous work in the rural context to establish a Tri-bal lands construction safe harbor for wireless service providers; and
- A proposal to make modifications to the Tribal lands bidding credit.
The Commission contemplates extending any programs, if adopted, to federally-recognized American Indian Tribes and Alaska Native Villages and seeks comment on extending eligibility for these programs to entities owned and controlled by such Tribes. In addition, the Com-mission seeks comment on the appropriate definitions of Tribal lands and on the specific wireless ser-vices and Commission licensees to which all of these proposals could apply.
In considering several processes by which Tribes could gain access to spectrum over unserved or underserved Tribal lands, the Commission notes that the National Broadband Plan suggested that increasing Tribal access to and use of spectrum would create additional opportunities for Tribal communities to obtain broadband access.
According to the FCC, there are assertions in the record that many service providers have not deployed wired services into Tribal lands and that there are instances where wireless providers have failed to build facilities on Tribal lands or have not marketed service to Native Americans. The FCC said the record also indicates that one path to successful deployment of services on Tribal lands is through Tribal engagement in direct provisioning of services. Some have suggested that underutilized spectrum on Tribal lands may represent an untapped resource that could be key to improving service (including broadband service) to Tribal consumers, but have observed that under current policies Tribes face substantial obstacles obtaining spectrum access.
The FCC said the processes to provide new opportunities for Tribes to seek access to spectrum would take into account conditions that have led to the unavailability of adequate service on some Tribal lands. The Commission seeks comment generally on those conditions and on whether the various approaches that have been suggested may help address them and achieve real benefits for Tribal consumers of wireless services. The proposals for spectrum access in general seek to make underutilized spectrum more available for use in unserved and underserved Tribal lands.
In this regard, the Commission notes that proposals for Tribal access to spectrum may facilitate its broad goal of promoting increased use of unused or underutilized spectrum through secondary market mechanisms. Pro-viding for additional mechanisms with respect to spectrum access in licensed services over unserved or underserved Tribal lands could significantly benefit those seeking such access, in that there is likely to be a mature eco-system for devices and equipment where spectrum has already been licensed, so that new licensees and new customers would be able to find and purchase exist-ing equipment in the marketplace, the FCC said. It added that ready availability of devices and equipment can promote faster and more economical buildout and ser-vice than would be possible using spectrum where new services are being deployed. The Commission seeks comment on the potential benefits of promoting additional mechanisms for Tribal access to licensed spectrum.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell.
Copps Expresses Concerns Over AT&T/T-Mobile Deal
FCC Commissioner Michael Copps last week said AT&T's proposal to purchase T-Mobile USA for $39 billion may be “even a steeper climb" than Comcast's acquisition of NBC/Universal, according to media sources, such as Reuters, Politico, and The Hill. In a C-Span interview, Copps explained that the “steep climb” was due to the fact that “two companies [AT&T and Verizon] are going to control, like, 80 percent of the spectrum,” if the deal goes through. "I would hope that my colleagues, in looking at this transaction in the months ahead, will be asking themselves some pretty serious questions about what residue of competition will be left if this merger is approved," Copps said.
Copps also said he is concerned that the proposed AT&T/T-Mobile merger will "suck the oxygen out of the room" on other important issues, including incentive spectrum auctions and the creation of a nationwide, interoperable public-safety broadband network. " I’ve been at the Commission almost 10 years now and it seems sometimes that we're just the federal merger commission," he said. "Why do we spend so much time trying to make what some people would deem unpalatable minimally acceptable? ... Is that the best we can do for com-petition?"
Copps said that while he was “not into conditions,” he would “hope — if there is going to be a majority of the Commission that’s going to approve of this – we’re obviously going to be looking at, market by market, what divestitures might be called for, that’s certainly important. The open Internet – net neutrality – is important. And looking at the level of concentration of market power across the board is important. So it comes down to all the considerations of whether this serves the public interest, convenience and necessity.”
Shortly after the proposed merger was announced last month, Sen. Jay Rockefeller (D-W.Va.), Chairman of the Senate Commerce Committee, said: "With every passing day, wireless services are becoming more and more important to the way we communicate. So it is absolutely essential that both the Department of Justice and the FCC leave no stone unturned in determining what the impact of this combination is on the American people. Consumers across the country and at home in West Virginia want lower rates, competition and better coverage. As always in a transaction this large, the Commerce Committee will review the details of the acquisition."
Further, John Stanton, the founder of T-Mobile USA's predecessor and chief executive of Clearwire Corp., criticized AT&T Inc.'s proposed deal to buy T-Mobile USA, calling it a "huge challenge to competition in the industry." "This represents something we're seriously concerned with," Stanton said recently. He added that he would express his concerns to the government as regulators begin to scrutinize the deal.
BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast.
Agenda Set For April 7 FCC Open Meeting
The following items are scheduled for consideration at the FCC’s April 7 open meeting:
*Pole Attachment Report and Order and Order on Reconsideration: An Order that reforms the access, rates, and enforcement rules for utility pole attachments, reducing barriers to deployment and availability of broadband and other wireline and wireless services, and promoting competition.
*Accelerating Broadband Deployment NOI: A Notice of Inquiry seeking comment on key challenges and best practices in expanding the reach and reducing the cost of broadband deployment, including by improving policies for access to government rights of way and wireless facility siting requirements.
*Data Roaming Second Report and Order: A Second R&O that adopts a rule requiring facilities-based providers of commercial mobile data services to offer data roaming arrangements to other such providers on commercially reasonable terms and conditions, subject to certain limitations.
*Signal Boosters Declaratory Ruling, NPRM, and Or-der: A Declaratory Ruling, NPRM and Order that helps to fill gaps in wireless coverage and expands broadband in rural and difficult-to-serve areas, while protecting wire-less networks from harm.
*Structure and Practices of Video Relay Service Pro-gram: Report and Order will adopt rules to detect and prevent fraud and abuse in the provision of video relay service (VRS). Also, a Further NPRM proposes to re-quire all VRS providers to obtain certification from the FCC under new, tighter certification procedures in order to receive compensation from the TRS Fund.
*Reliability and Continuity of Communications Net-works NOI: An NOI seeking comment on existing reliability standards for communications networks, including broadband networks, and ways to further strengthen the reliability and continuity of communications networks to avoid disruptions of service during major emergencies, such as large-scale natural and man-made disasters.
DoJ Seeks NRUF, LNP Data In AT&T/T-Mobile Probe
The United States Department of Justice, Antitrust Division (DoJ) has launched its investigation into the pro-posed acquisition of T-Mobile USA by AT&T. For the purpose of assisting in that investigation, the DoJ has requested access to information contained in the FCC’s Numbering Resource Utilization and Forecast (NRUF) reports filed by wireless telecommunications carriers and to disaggregated, carrier-specific local number portability (LNP) data related to wireless telecommunications carriers.
In general, the Commission may share information it has collected with another government agency. Although the Commission’s regulations provide that proprietary and commercially sensitive information will be withheld from public disclosure, subject to the public’s right to seek dis-closure under the Freedom of Information Act and implementing regulations, the FCC may disclose records to other federal agencies that have been submitted to the Commission in confidence upon another agency’s re-quest.
The DoJ states in its request that its policy is to protect the confidentiality of sensitive information and to prevent it from being shared among competitors. The Department further states that the information requested will be used only for a legitimate law enforcement purpose and that it will not disclose such sensitive information unless it is required by law or is necessary to further a legitimate law enforcement purpose. The Department maintains that if it is necessary to enclose any confidential business information in court filings, its policy is to notify the affected party as soon as is reasonably practical, to seek to file such information under seal, and to make reasonable efforts to limit disclosure of the information until the affected party has had an opportunity to appear before the court and the court has ruled on any request by the affected party.
The Department further states that if a request is made under the Freedom of Information Act for the disclosure of confidential information, it is the Department’s policy to assert all applicable exemptions and to use its best efforts to provide concerned parties with notice prior to the release of any information. It also states that if confidential business information becomes the subject of discovery in any litigation to which the Department is a party, it is the Department’s policy to use its best efforts to ensure that a protective order is entered, and to not voluntarily provide the information until concerned parties have had an opportunity to review and comment on the protective order and to apply to the court for further protection.
Comments in this CC Docket Nos. 99-200 and 95-116 proceeding are due April 11.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC Gives USAC Guidance On Interim ETC Caps For Past ALLTEL, AT&T Mergers
The FCC has responded to a request by the Universal Service Administrative Company (USAC) for written guidance regarding implementation of the interim caps on high-cost, competitive eligible telecommunications carrier (CETC) support for AT&T and ALLTEL, which were adopted as conditions of their respective mergers in late 2007, several months before the Commission adopted the interim cap for all CETCs. The FCC said that USAC should implement the company-specific interim CETC caps for the time period from the consummation of each respective merger until the industry-wide cap went into effect on August 1, 2008.
When it approved the merger of ALLTEL and Atlantis Holdings LLC, the FCC “impose[d] an interim cap on high-cost, competitive ETC support provided to ALLTEL as a condition of this transaction,” which, the Commission concluded, would “apply until fundamental comprehensive reforms are adopted.” The Commission imposed a similar interim cap on AT&T when it merged with Dobson Communications. Several months later, the Commission adopted an industry-wide cap on high-cost support for all CETCs and noted in a footnote that “[t]he interim cap adopted in this Order supersedes the interim caps on high-cost, competitive ETC support adopted in the ALLTEL-Atlantis Order and the AT&T-Dobson Order.”
On August 21, 2009, USAC sought guidance from the Commission on how to implement the Commission’s orders imposing these competitive ETC caps. In particular, USAC explains that it “believes that it is required to implement the orders for AT&T and Alltel company-specific caps for the time period each respective order was in effect until the date it was superseded . . . because the [competitive ETC] industry-wide cap was effective prospectively and did not state that it superseded the company-specific caps retroactively.”
The FCC said it agreed, and said: “The company-specific merger orders imposing interim caps on each company took effect pursuant to their terms, notwithstanding the fact that it would take some time before USAC would be able to calculate the adjusted support amounts for each company. Each cap, imposed as a condition of the Commission’s approval of a merger, took effect on the date the merger was consummated — November 15, 2007 for the AT&T-Dobson merger and November 16, 2007 for the ALLTEL-Atlantis Holdings merger. By its terms, the Commission’s later Interim Cap Order superseded the company-specific orders; it did not, however, have any retroactive effect or nullify the prior orders. As a result, the company-specific interim caps were in effect — even if USAC had not at the time implemented them — until the effective date of the Interim Cap Order, after which the industry-wide interim cap went into effect.”
Finally, the FCC said, nothing in its guidance to USAC should be understood to require a recalculation of the amount of the industry-wide cap on high-cost support for competitive ETCs. The interim cap was calculated, properly, without regard to these company-specific caps, and the implementation of the caps now does not alter the proper calculation of the interim cap amount.
BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC SETS COMMENT DATES FOR NPRM PROPOSING TO REQUIRE CERTAIN VoIP CARRIERS TO CONTRIBUTE TO TRS FUND: The FCC has set comment dates for its Notice of Proposed Rulemaking (NPRM) proposing rules to implement those provisions of the “Twenty-First Century Communications and Video Accessibility Act of 2010'' (CVAA), which require each interconnected voice over Internet Protocol (VoIP) ser-vice provider and each provider of non-interconnected VoIP service to participate in and contribute to the Tele-communications Relay Services (TRS) Fund. The law directs that within one year after the date of enactment of the CVAA, such VoIP providers shall participate in and contribute to the Fund in a manner prescribed by the Commission by regulation (BloostonLaw Telecom Up-date, March 9). The regulations must oblige such participation in a manner that is consistent with and comparable to the obligations of other contributors to the fund. Comments in this CG Docket No. 11-47 proceeding are due May 4, and replies are due May 19. Providers of “non-interconnected VoIP service'' have not been required to contribute to the TRS Fund and have not been required to register or report revenues through the annual filing of FCC Form 499-A for any purpose. Examples of VoIP services that are not within the Commission's definition of “interconnected VoIP'' include one-way VoIP services (i.e., services that enable users to terminate calls to the Public Switched Telephone Network (PSTN), but do not permit users to receive calls that originate on the PSTN, or enable users to receive calls from the PSTN, but do not permit the user to make calls terminating to the PSTN) and IP-based voice services that do not require a broadband connection. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak.
FCC EXTENDS COMMENT DATES FOR NPRM TO IMPLEMENT CVAA TO MAKE ADVANCED COMMU-NICATIONS SERVICES AVAILABLE TO PEOPLE WITH DISABILITIES: The FCC has extended the comment dates regarding its Notice of Proposed Rulemaking (NPRM) proposing to adopt rules that implement provisions in section 104 of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA). Comments in this CG Docket No. 10-213, WT Docket No. 96-198, and CG Docket No. 10-145 proceeding are now due April 25, and replies are due May 23. This proceeding would update and amend the Commission's rules to ensure that individuals with disabilities are able to fully utilize advanced communications services (ACS) and equipment and networks used for such ser-vices (BloostonLaw Telecom Update, March 16). Specifically, the FCC seeks comment on ways to implement the CVAA's requirements on providers of ACS and manufacturers of equipment used for ACS to make their services and products accessible to people with disabilities. The intended effect is to promote rapid deployment of and universal access to broadband services for all Americans across the country, because broadband technology can stimulate economic growth and provide opportunity for all Americans. The NPRM initiates a proceeding to update the Commission's rules to ensure that the 54 million individuals with disabilities are able to fully utilize advanced communications services and equipment and networks used for such services. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell.
CLYBURN CONCERNED THAT STATES WILL SHUT MUNICIPALITIES OUT OF BROADBAND DEPLOYMENT OBJECTIVES: FCC Commissioner Mignon Clyburn has expressed concern that several state legislatures are considering bills that are “contrary to the deployment objectives” of the National Broadband Plan. She noted that the North Carolina state legislature is currently evaluating legislation titled “Level Playing Field/Local Government Competition.” According to Clyburn, “this piece of legislation certainly sounds goal-worthy, an in-nocuous proposition, but do not let the title fool you. This measure, if enacted, will not only fail to level the playing field; it will discourage municipal governments from ad-dressing deployment in communities where the private sector has failed to meet broadband service needs. In other words, it will be a significant barrier to broadband deployment and may impede local efforts to promote economic development.” She noted that the National Broadband Plan recommends that “Congress clarify that State, regional, and local governments should not be restricted from building their own broadband networks.” She also noted that her home state of South Carolina has similar legislation pending, and the state of Arkansas is contemplating a complete ban on publicly-owned broadband facilities. “I fear that preventing local governments from investing in broadband is counter-productive and will impede the nation from accomplishing the Plan’s goal of providing broadband access to every American and community anchor institution,” Clyburn said.
FCC SETS COMMENT DATES FOR NPRM ON PAYMENT OF FILING FEES BY WINNING BIDDERS OF BROADCAST CONSTRUCTION PERMITS: The FCC has set comment dates on its Notice of Proposed Rule-making (NPRM) seeking comments to clarify the rules on the payment of filing fees by winning bidders in auctions of construction permits in the broadcast services in con-junction with their long-form applications. Comments in this GEN Docket No. 86-285 proceeding are due April 18, and replies are due May 2. In the Broadcast Competitive Bidding First Report and Order, the Commission required the filing of application fees in such cases, and section 1.1104, the Schedule of Charges for Media Bureau Service filings, requires the payment of a fee when the long-form application is filed. However, section 1.2107(c) of the rules provides with regard to the filing of long-form applications by winning bidders in auctions that, “Notwithstanding any other provision in Title 47 of the Code of Federal Regulations to the contrary, high bidders need not submit an additional application filing fee with their long-form applications.'' To resolve any inconsistency and to conform Section 1.2107(c) to the Commission's determination in the Broadcast Competitive Bidding First Report and Order as reflected in section 1.1104, the FCC proposes to amend section 1.2107(c) by revising the cited sentence to read as follows: “Except as otherwise provided in section 1.1104 of the rules, high bidders need not submit an additional application fee with their long-form applications.'' The FCC seeks comment on this proposal. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell.
FCC SETS COMMENT DATE ON DRAFT ENVIRONMENTAL RULES AFFECTING ANTENNA REGISTRATION PROGRAM. The FCC has set a comment dead-line for its Public Notice on draft rules and interim procedures designed to ensure that the environmental effects of proposed communications towers, including their effects on migratory birds, are fully considered prior to construction (BloostonLaw Telecom Update, March 30). Comments in this WT Docket Nos. 08-61 and 03-87 proceeding are due May 5. There is no opportunity for reply comments, since the FCC is classifying the rule changes as merely “procedural”, even though they may cause significant delays and cost increases for many proposed antenna towers if adopted.
The FCC’s action is pursuant to the rules of the Council on Environmental Quality (CEQ). The FCC said the draft rules and procedures are intended to further the Com-mission's implementation of the National Environmental Policy Act (NEPA) while preserving the ability of communications providers rapidly to offer innovative and valuable services to the public. The draft rules and procedures respond to the decision of the U.S. Court of Ap-peals for the District of Columbia Circuit in American Bird Conservancy v. FCC. In this case, the court held that the Commission's current antenna structure registration (ASR) procedures impermissibly fail to offer members of the public a meaningful opportunity to request an Environmental Assessment (EA) for proposed towers that the Commission considers categorically excluded from re-view under NEPA. The notification process included with-in the draft rules would address that holding of the court. The draft procedures also include provisions consistent with a Memorandum of Understanding among representatives of communications providers, tower companies, and conservation groups.
Under the draft rules and procedures:
- Prior to the filing of an ASR application for a new antenna structure, members of the public would be given an opportunity to comment on the environmental effects of the proposed construction. The applicant would provide notice of the proposal to the local community, and the Commission would post information about the proposal on its Web site. Commission staff would consider any comments received from the public to determine whether an EA is required for the tower.
- EAs for those registered towers that require EAs would be filed and considered by the Commission prior to the filing of an ASR application. Those EAs are currently filed at the same time as either the ASR application or a service-specific license or permit application.
- On an interim basis pending completion of the ongoing programmatic environmental analysis of the ASR program, an EA would be required to be filed for each proposed registered tower more than 450 feet in height to address its potential impact on migratory birds. Staff would review the EA to determine whether the tower would have a significant environmental impact.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino.
FCC EXTENDS COMMENT DEADLINE REGARDING CTIA REQUEST TO CLARIFY SCOPE OF SECTION 332(c)(3)(a): The FCC has extended the comment dead-line regarding CTIA-The Wireless Association’s request for a declaratory ruling asking the Commission to clarify “the scope of Section 332(c)(3)(A)’s ban on state and local entry regulation.” CTIA stated that the Connecticut Department of Public Utility Control (Connecticut PUC) “ordered that wireless providers must apply for and obtain a Certificate of Public Convenience and Necessity (CPCN) from the [Connecticut PUC] before they can re-quest permission to access public rights-of-way.” CTIA asked the Commission to declare that Connecticut’s CPCN requirement is a form of entry regulation that is prohibited by Section 332(c)(3)(A). Comments in this WT Docket No. 11-35 proceeding are now due June 10, and replies are due July 11. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Bob Jackson.
This newsletter is not intended to provide legal advice. Those interested in more information should contact the firm.