Selected portions of the BloostonLaw Telecom Update, and/or the BloostonLaw Private Users Update — newsletters from the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP are reproduced in this section with the firm's permission. 
| BloostonLaw Telecom Update | Vol. 17, No. 13 | April 2, 2014 |
Headlines
FCC Adopts CMA Licensing for Portion of AWS-3 Band In an action that significantly expands the amount of spectrum available for fixed and mobile advanced wireless services, the FCC on Monday adopted licensing, technical and service rules governing the use of spectrum in the 1695-1710 MHz, 1755-1780 MHz, and 2155-2180 MHz bands (the "AWS-3 Bands"). In response to comments by the Blooston Rural Carriers and others, the FCC agreed to establish one of the spectrum blocks to be sold as Cellular Market Area ("CMA")-sized licenses, which will give small and rural carriers a much more realistic opportunity to successfully bid in the auction. A proposed schedule of for the AWS-3 auction (which is expected to take place this fall) and procedural rules for this auction, have not yet been formulated. We nonetheless strongly urge clients who may be interested in participating to budget appropriate funds and to begin their preaction preparations now, including decisions about whether to participate in the auction with other carriers or investors through the creation of a bidding entity. We can help clients interested in pursuing such relationships to structure their participation so as to comply with FCC rules and maximize their opportunity at receiving bid credits. The AWS-3 Report and Order ( FCC 14-31 ) establishes a band plan that makes spectrum available in a mix of spectrum block and geographic license area sizes to meet the needs of large and small wireless providers. Most notably for our clients, the FCC adopted CMA licensing for a 10 megahertz paired channel block known as the "G-Block" (1755-1760 MHz paired with 2155-2160 MHz). Two other paired channel blocks (the "H-Block" and "I-Block") will be licensed on an Economic Area ("EA") basis, and a fourth paired channel block (the "J-Block") represents 20 megahertz of spectrum that will be licensed by EA. Two unpaired spectrum blocks (the 5 megahertz A1-Block and the 10 megahertz B1-Block) will also be licensed on an EA basis. The AWS-3 band plan is shown below. 
| Block | Frequencies | Paring | Bandwidth | Area | Licenses | | G | 1755-1760 and 2155-2160 | 2 x 5 MHz | 10 MHz | CMA | 734 | | H | 1760-1765 and 2160-2165 | 2 x 5 MHz | 10 MHz | EA | 176 | | I | 1765-1770 and 2165-2170 | 2 x 5 MHz | 10 MHz | EA | 176 | | J | 1770-1780 and 2170-2180 | 2 x 10 MHz | 20 MHz | EA | 176 | | A1 | 1695-1700 MHz | 1 x 5 MHz | 5 MHz | EA | 176 | | B1 | 1700-1710 MHz | 1 x 10 MHz | 10 MHz | EA | 176 |
The Commission will auction the AWS-3 spectrum pursuant to its standard Part 1 competitive bidding rules and it will offer small business bidding credits as proposed in the AWS-3 NPRM. In this regard, qualified small businesses (entities with average gross revenues for the preceding 3 years not exceeding $40 million) will be eligible to receive a bidding credit of 15%. Qualified very small businesses (entities with average gross revenues for the preceding 3 years not exceeding $15 million) will be eligible to receive a bidding credit of 25%. The Commission declined to adopt an additional 15% bid credit for qualified rural telephone companies or rural telephone company affiliates that as proposed by the Blooston Rural Carriers, finding that proponents of this type of credit had been unable "to demonstrate a historical lack of access to capital that was the basis for according bidding credits to small businesses, minorities and women." With respect to license buildout obligations, again in response to comments by the Blooston Rural Carriers and others, the FCC has established population-based construction benchmarks for the AWS-3 band rather than geographic coverage requirements. The AWS-3 build out rule requires licensees to provide reliable signal coverage and offer service to at least forty percent (40%) of the service area population within six (6) years, and at least seventy-five percent (75%) of the service area population within twelve (12) years. The Commission found that setting the interim buildout benchmark six years from the grant of license should account for the time it will take for Federal users to relocate out of the bands that are being reallocated from commercial use. Failure to meet this initial build-out benchmark will accelerate the final build-out requirement and initial license term by two years (from 12 years to 10). In the event a licensee fails to meet the AWS-3 Final Build-out Requirement for any licensed area, the license for each licensed area in which it fails to meet the build-out requirement shall terminate automatically without Commission action. In what appears to be a "lesson learned," the FCC's AWS-3 service rules also include a requirement that AWS-3 devices be fully interoperable within the AWS-3 and AWS-1 frequencies. This eliminates a risk that created a technical barrier to 700 MHz band roaming and intercarrier arrangements and that significantly delayed (and continues to delay) the buildout of those networks. Mandated interoperability should result in network equipment and handsets being developed for a single unified AWS band class. This, in turn, should facilitate economies of scale in the market for AWS-band equipment, as well as eliminate the potential for technical and artificial roadblocks to roaming and interoperability between AWS band networks. The FCC agreed with comments of the Blooston Rural Carriers and others that small business bid credits should be available for the AWS-3 auction, but unfortunately declined to adopt the rural telco bid credit we had proposed. For the AWS-3 bands, the FCC will define a small business as an entity with average gross revenues for the preceding 3 years not exceeding $40 million, and a very small business as an entity with average gross revenues for the preceding 3 years not exceeding $15 million. Under these definitions, small businesses would be provided with a bidding credit of 15 percent and very small businesses with a bidding credit of 25 percent, similar to prior auctions. Because AWS-3 spectrum is immediately adjacent to the AWS-1 band, this should make the AWS-3 auction a significant opportunity for small and rural carriers to obtain commercial spectrum licenses that are complimentary to their AWS-1 license holdings, or that can be used on their own for the provision of fixed and/or mobile wireless services. We are in the process of reviewing the fine print of the Order, and will advise our clients of any significant developments. The Commission will auction the AWS-3 spectrum pursuant to its standard Part 1 competitive bidding rules and it will offer small business bidding credits as proposed in the AWS-3 NPRM. In this regard, qualified small businesses (entities with average gross revenues for the preceding 3 years not exceeding $40 million) will be eligible to receive a bidding credit of 15%. Qualified very small businesses (entities with average gross revenues for the preceding 3 years not exceeding $15 million) will be eligible to receive a bidding credit of 25%. The Commission declined to adopt an additional 15% bid credit for qualified rural telephone companies or rural telephone company affiliates that as proposed by the Blooston Rural Carriers, finding that proponents of this type of credit had been unable "to demonstrate a historical lack of access to capital that was the basis for according bidding credits to small businesses, minorities and women." With respect to license buildout obligations, again in response to comments by the Blooston Rural Carriers and others, the FCC has established population-based construction benchmarks for the AWS-3 band rather than geographic coverage requirements. The AWS-3 build out rule requires licensees to provide reliable signal coverage and offer service to at least forty percent (40%) of the service area population within six (6) years, and at least seventy-five percent (75%) of the service area population within twelve (12) years. The Commission found that setting the interim buildout benchmark six years from the grant of license should account for the time it will take for Federal users to relocate out of the bands that are being reallocated from commercial use. Failure to meet this initial build-out benchmark will accelerate the final build-out requirement and initial license term by two years (from 12 years to 10). In the event a licensee fails to meet the AWS-3 Final Build-out Requirement for any licensed area, the license for each licensed area in which it fails to meet the build-out requirement shall terminate automatically without Commission action. In what appears to be a "lesson learned," the FCC's AWS-3 service rules also include a requirement that AWS-3 devices be fully interoperable within the AWS-3 and AWS-1 frequencies. This eliminates a risk that created a technical barrier to 700 MHz band roaming and intercarrier arrangements and that significantly delayed (and continues to delay) the buildout of those networks. Mandated interoperability should result in network equipment and handsets being developed for a single unified AWS band class. This, in turn, should facilitate economies of scale in the market for AWS-band equipment, as well as eliminate the potential for technical and artificial roadblocks to roaming and interoperability between AWS band networks. The FCC agreed with comments of the Blooston Rural Carriers and others that small business bid credits should be available for the AWS-3 auction, but unfortunately declined to adopt the rural telco bid credit we had proposed. For the AWS-3 bands, the FCC will define a small business as an entity with average gross revenues for the preceding 3 years not exceeding $40 million, and a very small business as an entity with average gross revenues for the preceding 3 years not exceeding $15 million. Under these definitions, small businesses would be provided with a bidding credit of 15 percent and very small businesses with a bidding credit of 25 percent, similar to prior auctions. Because AWS-3 spectrum is immediately adjacent to the AWS-1 band, this should make the AWS-3 auction a significant opportunity for small and rural carriers to obtain commercial spectrum licenses that are complimentary to their AWS-1 license holdings, or that can be used on their own for the provision of fixed and/or mobile wireless services. We are in the process of reviewing the fine print of the Order, and will advise our clients of any significant developments. FCC Issues Declaratory Rulings on Automated Text Rules On March 27, 2014, the FCC released a pair of Declaratory Rulings involving the Telephone Consumer Protection Act (TCPA), which requires, among other things, companies to obtain customers' consent before sending an automated call or text message to wireless phones. In the GroupMe ruling, the FCC clarified that text-based social networks may send administrative texts confirming consumers' interest in joining such groups without violating the TCPA because, when consumers give express consent to participate in the group, they are the types of expected and desired communications TCPA was not designed to prohibit, even when that consent is conveyed to the text-based social network by an intermediary. GroupMe is a social network company that provides a free group text messaging service for groups of up to 50 members. A user who wishes to create a group using GroupMe's service must register with GroupMe and agree to its terms of service, which require the group creator to represent that each individual added to the group has consented to be added and to receive text messages. GroupMe requested that the Commission clarify that for non-telemarketing voice calls or text messages to wireless numbers, which can permissibly be made using an autodialer under the TCPA with the consumer's oral prior express consent, the caller can rely on a representation from an intermediary that they have obtained the requisite consent from the consumer. In the Cargo Airline Association (CAA) ruling, the FCC excluded from the TCPA's prohibitions package delivery companies alerting wireless consumers about the status of their packages, as long as consumers are not charged and may easily opt out of future messages. CAA's member companies deliver packages on behalf of a large number of companies and individuals. These members provide delivery notifications to consumers' residential phones, which is permissible without consumer consent under the TCPA, and seeks to do the same to consumers' wireless phones, either by voice or text. Importantly, CAA indicated that package delivery notifications are not charged to the called party. The Commission granted an exemption to package delivery notifications subject to several conditions: 1) notification must be sent only to the telephone number for the package recipient; 2) notifications must identify the name of the delivery company and include contact information for the delivery company; 3) notifications must not include any telemarketing, solicitation, or advertising content; 4) voice call and text message notifications must be concise, generally one minute or less in length for voice calls and one message of 160 characters or less in length for text messages; 5) delivery companies may generally send only one notification (whether by voice call or text message) per package; 6) delivery companies relying on this exemption must offer parties the ability to opt out of receiving future delivery notification calls and messages and must honor the opt-out requests within a reasonable time from the date such request is made, not to exceed thirty days; and, 7) each notification must include information on how to opt out of future delivery notifications. Although in very specific contexts, the FCC made broad comments in both documents that may impact its future interpretations of the TCPA. In the GroupMe ruling, the FCC noted that "[its] goal is to make sure the TCPA is not interpreted to inhibit communications consumers may want and that do not implicate the harms TCPA was designed to prevent." In the CCA ruling, the FCC said its conclusions were "supported by evidence of residential consumers' experience, who already receive these notifications and have not complained to us that they are unwanted." FCC Increases Availability of Spectrum for Wi-Fi and Other Unlicensed Uses in 5 GHz Band The FCC voted 5-0 on Monday to adopt a Report and Order (FCC 14-30) that makes an additional 100 megahertz of spectrum in the 5 GHz band more accessible for unlicensed use. This week's action by the FCC increases the total amount of spectrum currently available for use by unlicensed devices and networks by 15 percent, and paves the way for accelerated growth and expansion of new Wi-Fi technology that the FCC says will enable speeds of one gigabit per second or more. "Today's item to greatly increase the utility of 100 megahertz in the 5 GHz band is a big deal," said FCC Chairman Tom Wheeler in a prepared statement released Monday. "Our action today will create new opportunities for entrepreneurs and innovators, and much-needed relief to the growing problem of congestion on Wi-Fi networks." The new rules are applicable to Unlicensed National Information Infrastructure (U-NII) devices in the 5 GHz band and remove a current restriction on indoor-only use and increase the permissible power for devices using the 5.15-5.25 GHz portion of the band. This will allow U-NII devices to better integrate with other unlicensed portions of the 5 GHz band to offer faster speeds and reduce congestion at crowded Wi-Fi hot spots such as airports and convention centers, the FCC said. Much of the 5 GHz band was already reserved for unlicensed use, but the technical rules needed to be more stringent to prevent unlicensed devices from interfering with other authorized users in the band, specifically government telemetry networks and Globalstar's satellite ground links. Last summer, however, the Defense Department told the FCC that it no longer needed access to the 5.15-5.25 GHz band for telemetry, and acknowledged it could be made available for Wi-Fi use. The FCC's ruling was widely praised by manufacturers of consumer electronics and advocates for unlicensed wireless networks. "Wi-Fi is about to get bigger, better, and faster," said unlicensed spectrum advocacy group WifiForward in a statement. "We commend the Commission for crafting a thoughtful balance between the needs of incumbents and innovators to make sharing possible. The FCC's action will create a new environment for experimentation, new business models, and better Wi-Fi." WifiForward is a consortium of Google, Microsoft, consumer device groups and sellers and the cable operators. In addition making a significant portion of the 5 GHz U-NII band more useful for consumers and businesses, the Commission modified certain technical rules applicable to the band in order to prevent interference with satellite operators. In this regard, the FCC will require wireless ISPs to register any large-scale Wi-Fi deployments that make use of the band, and it will require equipment manufacturers to secure their devices against illegal modification. And Monday's ruling could be just the first step in a broader opening-up of the unlicensed band. A pending NPRM ( FCC 13-22 ) contemplates making available an additional 195 megahertz of spectrum in the 5.35-5.47 GHz and 5.85-5.925 GHz bands for U-NII use. Law & Regulation
FCC Imposes $20k Fine Against PLMRS Licensee for Failing to Renew License The FCC has imposed a penalty of $20,000 against Emigrant Storage LLC (Emigrant), former licensee of Private Land Mobile Radio Service (PLMRS) station WPKM212, Reno, Nevada, for operating the station without authority for more than nine years and for failing to file a timely application to renew the station's license. In this case, by continuing to operate the station even after the station's license had expired, Emigrant actually caused interference to an authorized user of the spectrum. In rejecting Emigrant's request to reduce the fine, the FCC focused on the length of time the station operated after the license inadvertently was allowed to expire. Our clients will want to closely track all license renewal deadlines. BloostonLaw offers a retainer service to track such deadlines, and to prepare and file the necessary renewal application, for participating clients. House Republicans Introduce Bill to Block Internet Management Relinquishment Online news outlet The Hill is reporting that a group of Republican representatives introduced a bill on March 27, 2014 that would prohibit recently-announced plans to relinquish control over the administration of the Internet to the global multi-stakeholder community. As we reported in the March 19, 2014 edition of the BloostonLaw Telecom Update, the U.S. Commerce Department's National Telecommunications and Information Administration (NTIA) is asking the Internet Corporation for Assigned Names and Numbers (ICANN) to convene a meeting of global stakeholders to develop a proposal to transition the current role played by NTIA in the coordination of the Internet's domain name system (DNS). According to The Hill's report, Reps. Marsha Blackburn (R-Tenn.), John Shimkus (R-Ill.), Todd Rokita (R-Ind.), Joe Barton (R-Texas), Bob Latta (R-Ohio) and Renee Ellmers (R-N.C.) introduced the Domain Openness Through Continued Oversight Matters Act, which would require a review of the Internet management transition before the Commerce Department agency could proceed with its plans. Concerns about the transition reportedly revolve around the possibility "for influence by foreign governments looking to change the open nature of the Internet." In a statement, Rep. Shimkus said, "This isn't a theoretical debate. There are real authoritarian governments in the world today who have no tolerance for the free flow of information and ideas." In response to such concerns, NTIA has indicated it "will not accept a proposal that replaces the NTIA role with a government-led or inter-governmental solution." Industry
Michigan PSC Mandates That AT&T & Sprint File IP Service Interconnection Agreement On March 18, 2014, the Michigan Public Service Commission ordered an AT&T subsidiary and Sprint Spectrum, L.P. to file with that agency for review and approval an IP-to-IP interconnection agreement (ICA) between them that conforms to a December 6, 2013 PSC Order. On December 6, 2013, the PSC issued an Order adopting, as modified, the decision of an arbitration panel; and directed AT&T and Sprint to submit a conforming ICA by January 6, 2014. Several extensions of time were granted to file the ICA. When it was ultimately filed, it did not conform (and the parties acknowledged that it did not conform) to the December 2013 Order because it did not contain the arbitrated terms for IP-to-IP interconnection. Instead, the parties stated that they had negotiated a "contingent resolution" to the issue. According to the March 18 Order, the parties further stated that if the contingency was not fulfilled, that by July 15, 2014, they "may request" PUC review of "an amendment to the ICA, which may include the language to IP-to-IP interconnection proposed by Sprint …, and they may delete the language set forth in the 'contingent resolution'". Objections to this procedure were filed by the Midwest Association of Competitive Communications, COMPTEL, TeleNet Worldwide, Inc., Clear Rate Communications, Inc., DayStarr Communications, The Iserv Company, JAS Networks, Inc., and Superior Spectrum Telephone & Data, LLC. In the March 18, Order, the PSC found that provisions of the federal Telecommunications Act of 1996, and FCC decisions (as well as state law and PSC precedent) required that the proposed contingent terms in the ICA be rejected. According to the PSC, the PSC's December 6 Order "adopted Sprint's IP-to-IP interconnection language as proposed during arbitration. Section 252(e)(1) of the [1996 Act] states that 'Any interconnection agreement adopted by negotiation or arbitration shall be submitted for approval of the State commission. A state commission to which an agreement is submitted shall approve or reject the agreement . . .' Accordingly, the Commission finds that the parties must file, for [PSC] approval or rejection, the agreement by which AT&T Michigan shall provide Sprint with IP-to-IP interconnection." The PSC established an April 1, 2014 deadline for the filing of a request for PSC approval of the ICA containing the arbitrated IP-to-IP interconnection provisions. According to Fierce Telecom , the competitive carrier industry views the PSC action as a good outcome. Angie Kronenberg, Chief Advocate and General Counsel of COMPTEL, stated that "you have confirmation that this state believes that IP interconnection is covered under sections 251 and 252 of the [1996] Telecom Act." Calendar At-A-Glance
April
Apr. 1 – FCC Form 499-A (Telecommunications Reporting Worksheet) is due.
Apr. 1 – Annual Accessibility Certification is due.
Apr. 1 – PRA comments on Form 477 (Local Telephone Competition and Broadband Reporting) are due.
Apr. 7 – Comments on E-Rate modernization are due.
Apr. 10 – Reply comments are due on AT&T Wire Center Trials Proposal.
Apr. 14 – Reply comments are due on Rural Broadband Experiments and Numbering Research.
Apr. 21 – Reply comments on E-Rate modernization are due. May
May 1 – FCC Form 499-Q, Telecommunications Reporting Worksheet is due.
May 29 – Comments are due on the short form Tariff Review Plans.
May 31 – FCC Form 395, Employment Report, is due. June
Jun. 16 – ILEC Tariff filings made on 15 days' notice are due.
Jun. 23 – Petitions to suspend or reject tariff filings made on 15 days' notice are due.
Jun. 24 – ILEC tariff filings made on 7 days' notice are due.
Jun. 26 – Replies to petitions to suspend or reject tariff filings made on 15 days' notice are due.
Jun. 26 – Petitions to suspend or reject tariff filings made on 7 days' notice are due.
Jun. 27 – Replies to petitions to suspend or reject tariff filings made on 7 days' notice are due. | BloostonLaw Private Users Update | Vol. 15, No. 1 | March 2014 |
FirstNet Approves Program Roadmap NTIA reports that on March 11, the Board of Directors for FirstNet approved a "roadmap" that will serve as a guide until it is able to develop and adopt a formal business plan under which it will build and operate the nationwide broadband network for first responders. Under the Congressional mandate, FirstNet must complete this project within the $7 Billion budget that was established by Congress as part of the Middle Class Tax Relief and Job Creation Act of 2012. Because there are many technical and financial questions regarding the network that will ultimately be adopted by FirstNet, Sam Ginn, Chairman of FirstNet, stated that a "roadmap" is more appropriate than a business plan. Ginn stated that "as we work through the questions, we will narrow this until we can truly present a business plan." In this regard, Ginn stated further that until you can answer "some very fundamental questions," you don't have a business plan." Under the roadmap adopted by the FirstNet Board, several milestones will need to completed within the next year, including: (a) initiating a public notice and comment on certain procedures, (b) release of a procurement process and requirements for requests for proposals (RFPs) for the network itself as well as network equipment and services and (c) delivering proposal requirements for National Environmental Policy Act (NEPA) resources and spectrum relocation. Additionally, it is also expected that FirstNet staff will also begin consultations with state agencies during the first part of 2014. "FirstNet's mission is to ensure that a nationwide, interoperable, wireless broadband network is built for the public safety community," stated FirstNet General Manager Bill D'Agostino. "We want to make rapid progress for public safety, while balancing the need for robust design and cost-effectiveness," continued D'Agostino. "We plan to have significant coverage across the U.S. through use of terrestrial coverage similar to what wireless carriers have today. We believe we have charted a course to prove out a successful FirstNet for public safety." The approved roadmap focuses on several milestones required for the development of a definitive business plan. Those steps include: - Staffing and resourcing the organization;
- Completing an open, transparent, and competitive process for comprehensive network proposals based upon FirstNet LTE performance requirements, operating standards, and certified devices;
- Completing an open, transparent, and competitive process for network equipment and service proposals based on detailed technical requirements, resulting in multiple awards that could supplement or substitute for all or part of a comprehensive network proposal;
- In conjunction with each the comprehensive network and network equipment and services processes, obtaining proposals for covered leasing agreements that will provide value for our excess network capacity;
- Completing testing and validation of critical features and functionality of the network;
- Conducting state outreach and completing state consultation; and
- Reviewing aggregated information to determine pricing for approval by the National Telecommunications and Information Administration (NTIA).
Separately, the Board voted to approve the Human Factor Report delivered by the Public Safety Advisory Committee (PSAC). The PSAC was previously asked by FirstNet to analyze the long-range impacts of the planned network on the way law enforcement, fire, and emergency medical services (EMS) operate. BloostonLaw clients that provide rural wireless service or that manufacture equipment will want to evaluate whether the implementation of FirstNet presents an opportunity for them, and pay close attention to the RFPs that will be issued in the near future. The following have been identified as FirstNet objectives for its network: - FirstNet plans for its terrestrial LTE Network to cover 60 % of the US, and communications with the rest of the country will be achieved through the use of deployable communications, mobile communications, satellite system and public-private partnerships with rural infrastructure providers.
- FirstNet's system will be hardened at the physical, user-access and cybersecurity layers and will provide local control to public safety entities that subscribe.
- FirstNet's system will be built and maintained with the $7 Billion in funding from Congress, user fees and "agreements with third parties that will leverage the value of secondary use of our excess capacity.
It is important to note that the FirstNet roadmap is a living document that may be subject to change as FirstNet starts down its path for creating a public safety broadband network. D'Agostino said, "As we travel along our roadmap, we may determine that some of our assumptions were flawed, and change our course accordingly. We may change the order of or the actual roadmap milestones themselves as a result." FCC Proposes $29,250 Fine For Operation Of Cellphone Jamming Device On March 26, 2014, the full five-member FCC released a Notice of Apparent Liability for Forfeiture in the amount of $29,250 against R&N Manufacturing, Ltd. for operating a wireless phone jammer at its manufacturing facility in Houston, Texas. The jamming device was installed at its manufacturing facility in order to prevent R&N employees from using their wireless phones while at work, and operated in both the 800 MHz Cellular Radio Band and the 1900 MHz Broadband PCS Band. R&N operated the jammer for a period of ten days commencing on or around March 23, 2013. In response to an interference complaint from AT&T — which alleged that a signal from the R&N manufacturing facility was interfering with its licensed operations, agents from the FCC's Houston field office inspected the facility. A company officer surrendered the jamming device to the field agents at the time of the inspection. Theaters, restaurants, hospitals and other businesses no doubt find it tempting to purchase cell jammers, which are readily available over the internet. However, the private use of signal jamming devices is prohibited by law. In addition to disrupting the ordinary calls of consumers, the jamming devices can disrupt critical public safety communications placing both first responders ( e.g., police officers, firefighters and EMS personnel) and the public at risk; and can endanger life and property by preventing individuals from making 911 or other emergency calls or disrupting communications essential to aviation and marine safety. The Communications Act permits a maximum fines for the operation of jamming devices of $16,000 for each day of a continuing violation, up to a maximum forfeiture of $112,500 for any single act or failure to act. Because R&N had operated the jamming device for approximately 10 days, it could have theoretically been liable for a monetary forfeiture of up to $160,000 ($16,000 for each day of violation). In computing the amount of the forfeiture, the FCC proposed a $32,000 forfeiture for the operation of the jamming equipment and an additional $7,000 forfeiture for causing interference, which would yield a total forfeiture in the amount of $39,000. However, because the R&N voluntarily surrendered the jamming device to the FCC field agents, the forfeiture was reduced by 25% to $29,250. FCC Grants Waiver to Allow Wisconsin Public Safety Entity to Use VHF Conventional Business Pool Frequency The FCC has granted a request for waiver of Rule Section 90.35 filed by Juneau County, Wisconsin (a public safety entity) to allow it to use the frequency 150.890 MHz as part of its public safety communications system. The frequency 150.890 MHz is allocated to the Conventional Industrial/Business Pool Service. In making its request, Juneau County noted that it is in the process of implementing "a new state-of-the-art trunked radio system that will serve all county agencies, and other neighboring and statewide agencies participating in the Wisconsin Interoperable System for Communications." As a result, the proposed communications system will provide interoperable communications statewide by allowing federal, state, local and tribal governmental agencies with similar systems to communicate with each other. Further justifying its waiver request, the County stated that its frequency analysis for available VHF spectrum in the area reflected that there was insufficient public safety spectrum available to meet the needs of its proposed radio system. Additionally, the County identified channels in the Industrial/Business Pool service that had not been assigned — including the frequency 150.890 MHz — and could therefore be used by the County without causing interference to other users. In granting the waiver request, the Commission concluded that there was no VHF public safety spectrum available for use by the County. Additionally, the FCC noted that there were only 19 I/B pool licensees operating in the VHF band in Juneau County, and that allowing the County to use one of the unused frequencies for its public safety communications system would not "create an inadequate supply of I/B channels for use in conventional or trunked systems in the relevant geographic areas for future I/B Pool eligible applicants." And, because none of the frequency advisory committees objected to the rule waiver request, the FCC concluded that the County's use of the frequency 150.890 MHz would not cause any spectrum issues for the I/B Pool in that area. FCC To Increase Application Processing Fees The FCC has released an order that 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. This increase will be effective 30 days after the Order is published in the Federal Register. The increase in the CIP-U over the past two years was 8 percent, which resulted in an increase of 17.369 index points, as calculated from October 2009 through October 2013. It is important to note that for those services where the filing fee includes both the annual regulatory fee and the application filing fee ( e .g., microwave, BETRS/Rural Radio, Part 90 private land mobile), the FCC is only increasing the application component of its filing fees. For the Part 90 Private Land Mobile Radio Services (shared use below 470 MHz), aircraft and ship stations, the fee will increase by $5.00 from $60.00 to $65.00. Most applications for marine coast and aviation ground stations will increase from $120.00 to $130.00 while typical microwave fees will increase from $270.00 to $290.00 for facilities based applications. For typical paging applications, the fee will increase from $395.00 to $430.00 for new facilities, major modifications and license renewals while for BETRS/Rural Radio, the fee will increase from $180.00 to $195.00 for new facilities, major modifications and license renewals. Filing fees for typical Domestic Section 214 application will increase from $1,050.00 to $1,130.00 and for typical International Section 214 applications, from $1,050.00 to $1,130.00. Filing fees for transactional applications such as license assignments and transfers of control will also increase. FCC Clarifies Private Radio License Renewal Procedures The FCC has announced that it is clarifying the license renewal procedures for licenses in the Private Land Mobile Services frequency bands that were previously subjected to the narrowbanding mandate by January 1, 2013. The affected frequency bands are: 150-174 MHz and 421-470 MHz. As a result, absent a special waiver or exemption, wide band operations (greater than 12.5 kHz) are no longer permitted in these bands. Except in those limited circumstances where wideband operation is permitted (either through specific rule waiver, exemption such as for dedicated one-way paging channels, or where the applicant demonstrates that its equipment has been certified as narrowband equivalent), the FCC will dismiss a license renewal application for a license that lists only a wideband emission unless the application (a) proposes to modify the license by replacing the wideband emission with a narrowband emission designator or (b) the applicant certifies that the station equipment meets the narrowband efficiency standard of one channel per 12.5 kHz of channel bandwidth (voice) or 4800 bits per second per 6.25 kHz bandwidth. For those licenses with both wideband and narrowband emissions for the same facilities, the FCC is requesting that the license renewal application include a request for deletion of the wideband emission designator. A separate application just to delete the wideband emission designator is not necessary since the change can be made in conjunction with a license modification or at the time of license renewal. FCC Proposes Amendments to Maritime Radio Service Rules The FCC has released a February 28, 2014 Notice of Proposed Rulemaking (WT Docket No. 14-36) in which it as proposed to update rules that apply to the maritime radio services. The rule updates will impact technologies that are used to locate and rescue distressed ships and individuals while at sea or on land and will provide first responders with more accurate data. Additionally, the FCC is also proposing to permit the assignment and transfers of control of ship stations, consistent with actions that it has taken in other services. Comments will be due 60 days after publication in the Federal Register. Reply comments will be due 30 days thereafter. In the NPRM, the FCC is seeking comment on the amendment to Part 80 and Part 95 of its rules to: | | a. | Require emergency position indicating radio beacons (EPIRBs) to be capable of broadcasting data when activated, in order to improve the ability of rescuers to locate distressed ships; | | | b. | Update equipment standards for Personal Locator Beacons (PLBs) to ensure that PLBs meet updated functional and technical parameters; | | | c. | Authorize equipment certification and use of Satellite Emergency Notification Devices (SENDs) that comply with RTCM standards, providing for use of additional technologies for safety of life and rescue scenarios; | | | d. | Permit equipment certification and use of Maritime Survivor Locating Devices (MSLDs) that comply with RTCM standards; | | | e. | Provide for equipment certification and use of Automatic Identification System Search and Rescue Transmitters (AIS-SARTs) that comply with international standards; | | | f. | Clarify rules regarding radar equipment; | | | g. | Permit use of portable marine VHR radio transmitters on by persons on shore; | | | h. | Allow the assignment or transfer of control of ship station licenses. |
FCC Denies Extension Request to Construct 220 MHz Geographic Area Licenses – Terminates 43 Licenses The FCC has denied requests for a 45-month extension of the five-year construction deadline that was filed by Environmental LLC, the licensee of numerous 220 MHz Geographic Area licenses. As a result, the licenses automatically terminated as of March 19, 2013, the original construction deadline. Under the FCC's Rules, 220 MHz geographic area licensees are required to construct a sufficient number of base stations to provide signal coverage to 1/3 of the population of the market area within five years of license grant and 2/3 of the population within 10 years of license grant, unless the licensee chooses instead to provide substantial service at those two bench marks. The basis for Environmental's extension request was two-fold – (a) its desire to implement a joint business plan with its affiliates who hold Automated Maritime Telecommunications System ("AMTS") licenses and (b) the equipment needed to implement its business plan has only "recently" become available. The standard for an extension request is that the "licensee [must show] that the failure to meet the construction or coverage deadline is due to involuntary loss of site or other causes beyond its control." In this regard, the FCC's Rules also list circumstances where extensions will not be granted, including: delays caused by a failure to obtain financing, because the licensee undergoes a transfer of control, or because the licensee fails to order equipment in a timely manner. The FCC concluded that Environmental's failure to meet the construction deadline was based solely on its decision to "pursue a business plan based upon unsupported technology instead of obtaining equipment and meeting the obligations as intended under the Commission's Rules." In denying the extension request, the Commission noted that a grant of the request would have "undermine[d] the fundamental goals of the Commission's performance requirements, specifically the promotion and rapid deployment of services to the public and the prevention of spectrum warehousing." Participants in the 220 MHz auction were warned that they would be expected to meet the construction requirements regardless of business plans or other strategies that they chose to pursue. The FCC concluded that instead of meeting the FCC's expectations, Environmental instead made the affirmative choice to pursue alternative technologies and rely on an extension of the construction period in order to meet its ultimate business plan. Because this was a voluntary choice by Environmental, and not beyond its control, the FCC denied the extension request and terminated the license authorization – thereby stranding Environmental's significant investment from purchasing these licenses at auction. It is important to note that in circumstances where equipment is readily available, the Commission may not be sympathetic to the argument that existing equipment is not desirable, or that the licensee is waiting for more desirable equipment to come to market. FCC Continues Enforcement Against Unauthorized Radio Frequency Devices As we have previously reported, the FCC has been taking action against the marketing and sale of unauthorized radio frequency devices. In its latest action, the FCC has issued an official citation to Redman CB Stop for the sale of 16 makes and models of non-certified RF amplifiers on its website. The amplifiers were capable of operation with both CB 11 meter transceivers and ARS 10 meter transceivers and did not have the FCC certification which is required for external frequency power amplifiers operating below 144 MHz and marketed for sale in the United States. For those of our clients who sell or market radio frequency devices, it is important to ensure that all such devices have been approved by the FCC if required. Marketing unapproved devices can result in substantial fines up to $16,000 per violation per day, up to a total of $112,500 per violation. In this regard, it is important to note that the FCC would likely treat each device as a separate violation. FCC Proposes $25,000 Fine for Improper Use of Part 15 Devices The Commission has proposed a $25,000 fine against Winchester Wireless, an ISP in Winchester, Virginia for using the Motorola Canopy transmitter in a manner that was inconsistent with its Part 15 certification. The unlicensed operation of RF devices not requiring licensing is regulated under Part 15 of the FCC's Rules. As a result, it is critically important to ensure that Part 15 devices are operated in accordance with the equipment authorization issued by the FCC and the manufacturer's instructions. Operation outside these parameters would require licensing before you can commence operation. In 2011, the FCC received an interference complaint and inspected a transmitter that was being operated by Winchester Wireless. The field inspector noted that the Motorola Canopy transmitter had been connected to two external RF Linx 900 MHz amplifiers, which were in turn fed into two antennas. A review of the FCC certification reflected that the Motorola Canopy System was not certified for use with external amplifiers. As a result of this inspection, Winchester Wireless was notified that it was operating a device that required licensing with the FCC since it was being used in a manner inconsistent with its Part 15 certification. Two years later, the FCC received similar complaints regarding the use of Motorola Canopy transmitting equipment by Winchester Wireless. At both locations, the FCC field agent noted that Winchester Wireless had installed the same transmitting system with the same external amplifiers that it had been cited for two years prior. The FCC has proposed to fine Winchester Wireless $10,000 for each of the two locations where a Motorola Canopy system was improperly installed. Additionally, because Winchester Wireless had been warned regarding this very same violation less than two years prior, the FCC added an upward adjustment to the proposed fine in order to make the total $25,000. In addition to proposing the fine, the FCC also ordered Winchester Wireless to submit a written statement demonstrating how it is operating all of its Part 15 devices in compliance with their equipment authorizations. This case demonstrates that, if an intentional radiator fails to comply with all of the applicable conditions set forth in Part 15 of the FCC's Rules, it is no longer covered by the unlicensed operation provisions of those rules and must be licensed before it can be operated. | 
David George and Bill Noyes
