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. 43 | October 29, 2014 |
Headlines Pending Litigation Leads to Delay in Expected Start Date for Incentive Auction Citing court challenges to the auction rules by certain broadcasters, the Chair of the FCC’s Incentive Auction Task Force last week set a revised schedule for the 600 MHz broadcast incentive auction that would push the expected auction start date back six months, until early 2016. A previous timetable set by FCC Chairman Tom Wheeler last December outlined a long list of proceedings that needed to be completed by the Commission’s staff and set mid-2015 as a target date for that auction. The FCC’s progress report and revised auction schedule were announced by Gary Epstein, Chair of the FCC's Incentive Auction Task Force, in a posting on the FCC Blog . “Earlier this week, the court issued a briefing schedule in which the final briefs are not due until late January 2015,” wrote Epstein. “Oral arguments will follow at a later date yet to be determined, with a decision not likely until mid-2015. We are confident we will prevail in court, but given the reality of that schedule, the complexity of designing and implementing the auction, and the need for all auction participants to have certainty well in advance of the auction, we now anticipate accepting applications for the auction in the fall of 2015 and starting the auction in early 2016.” As we have previously reported, the National Association of Broadcasters (NAB) last August filed a Petition for Review of the FCC’s Order ( FCC 14-50 ) adopting rules to implement the broadcast incentive auction. Among other objections, the broadcast industry has taken exception to a new methodology for calculating broadcasters’ coverage areas that was adopted in the Order. Despite the six-month delay, Epstein expressed optimism on many action items completed to date. “We are continuing our march toward implementing the incentive auction,” wrote Epstein. “Importantly, we anticipate the Commission will vote on the Comment PN before the end of the year. The Comment PN will propose and seek comment on the detailed directions for how the auction will be conducted, including the methodology to be used to establish opening bids for the reverse and forward auctions; how to define “impaired” markets subject to interference; and the components of the final stage rule.” In the coming weeks, the Commission will also reportedly consider an NPRM on preserving one vacant TV channel post-auction for use by unlicensed devices. Given the complexities of the world’s first two-way spectrum auction, and all that is at stake for broadcasters and the wireless industry, a delay in the start date comes as no surprise. The revised auction timetable should also be welcome news to our clients because they will now have more time to size up the 600 MHz spectrum opportunity, to raise auction funds, and to evaluate strategic partnerships. FTC Sues AT&T for Alleged “Throttling” of Unlimited Data Plans The US Federal Trade Commission (FTC) on Tuesday filed suit against AT&T Mobility LLC for its alleged “throttling” of wireless data services to millions of smartphone customers with “unlimited” plans. The FTC has jurisdiction over deceptive marketing practices. The FTC’s complaint , which was filed in the US District Court in San Francisco, alleges that AT&T failed to adequately disclose to its customers with unlimited data plans that once they reach a certain amount of data use in a given billing cycle, the company reduces — or “throttles” – their data speeds by up to 90 percent. With this amount of throttling, many common mobile phone applications – like web browsing, GPS navigation and watching streaming video — may become difficult or nearly impossible to use. The practice allegedly began in July of 2011, and imposed restrictions when a customer’s monthly data usage threshold in some markets was as low as 2 GB per billing cycle in high density markets like New York City and the San Francisco Bay Area. The complaint seeks a permanent injunction to prevent future violations of the FTC Act, and could result in significant fines against AT&T, as well as refunds being paid to AT&T customers who were harmed by the practice. The FTC vote authorizing the staff to file the complaint was 5-0. “AT&T promised its customers ‘unlimited’ data, and in many instances, it has failed to deliver on that promise,” said FTC Chairwoman Edith Ramirez. “The issue here is simple: ‘unlimited’ means unlimited.” AT&T responded by calling the FTC’s allegations “baseless” and an intrusion into the normal network management practices in the industry It also said it notified customers about throttling by sending emails or texts to notify customers when they had crossed pre-set limits and would experience slower data speeds for the balance of the billing cycle. AT&T quit offering unlimited plans for new contracts in June 2010, but customers who had unlimited plans could keep them. However, when AT&T implemented its throttling program, the company’s internal focus group research showed that throttling was inconsistent with consumer expectations. According to the complaint, AT&T researchers highlighted a consumer’s comment that “[i]t seems a bit misleading to call it Unlimited.” The researchers observed that “[t]he more consumers talked about it the more they didn’t like it.” This led the researchers to advise AT&T that “[s]aying less is more, [so] don’t say too much” in marketing communications concerning such a program. “It’s absolutely outrageous,” said a senior staff attorney at Public Knowledge, a Washington-based advocacy group. “They’re not allowed to promise one thing and deliver another… Unlimited is not unlimited when you put limits on it.” Like FCC enforcement actions, FTC investigations are conducted by staff behind closed doors and typically result in a voluntary settlement and possible fine. However, the fact that this action actually went to court suggests that AT&T believes its network management practices were transparent and reasonable, and/or that the potential cost of fines and other remedies sought by the FTC are so high ( i.e. , possibly in the tens or hundreds of millions of dollars) that cost/risk of litigation is relatively small in comparison.
In 2012, Google paid the largest FTC fine ever — $22.5 million — to settle charges that it misrepresented privacy assurances to users of Apple’s Safari Internet browser. With the large number of AT&T’s customers involved, duration of the alleged violation and cost of unlimited data plans, it seems likely that the fines sought by the nation’s consumer protection agency against AT&T could eclipse this previous record. Wireline Competition Bureau Announces Dates for 2015 Urban Rates Survey On October 27, the FCC’s Wireline Competition Bureau released a Public Notice announcing it will shortly be initiating the urban rate survey for 2015, which will be used to develop voice and broadband benchmarks that will be in place in 2015. Notifications that a provider is required to complete a survey will be sent via email to each selected provider’s FCC Form 477 contact person and certifying official on or around October 28, 2014. Completed surveys will be due on November 26, 2014. The survey consists of an online reporting form which will be accessible only to the selected providers. The specific data to be collected includes the rates offered by providers of fixed voice and broadband services identified using the most recent FCC Form 477 data in up to 500 urban Census tracts. Because some providers serve many urban Census tracts, these providers may receive surveys for multiple Census tracts. Additional information on the urban rates survey, including the orders referenced in this Public Notice, can be found on the Commission’s urban rate survey webpage at http://www.fcc.gov/encyclopedia/urban-rate-survey-data . FCC Releases Open Internet Reply Comments to the Public On October 22, Gigi Sohn, Special Counsel to Chairman Wheeler, wrote a blog entry on the Official FCC Blog announcing the release of the nearly 2.5 million reply comments that were filed during the reply comment period of the recent Open Internet remand proceeding. The comments are made available in one zipped XML file that includes 725,169 comments received through ECFS and CSV file uploads and another 1,719,503 comments received via the FCC’s dedicated reply email address, for a total of 2,444,672 comments received during the filing window. A separate file contains the initial comments, and both files can be found here . As part of the blog entry, Ms. Sohn encouraged those with the requisite technical skills “to analyze the raw data and build visualizations or other tools and to share them with the public.”
Law & Regulation Commissioner O’Rielly Remarks at NTCA Conference On October 27, recently re-nominated FCC Commissioner Michael O’Rielly spoke at the NTCA Telecom Executive Policy Summit. In his remarks, the Commissioner emphasized three basic points: 1) the future is broadband and this means change; 2) action by the Federal Communications Commission is necessary and appropriate; and 3) consumers will benefit from modern infrastructure and regulatory treatment. With regard to the first point, Commission O’Rielly noted that the changes occasioned by the broadband transition would require companies to “find efficiencies wherever possible” in order to remain competitive and relevant. He emphasized that “carriers do not own nor is there any guarantee to receive universal service support. It is ratepayer money. In other words, it is American consumers’ money that the FCC is entrusted to invest wisely.” Though he indicated that he did not promote or seek consolidation as the answer, Commissioner O’Rielly encouraged rural carriers to explore ways to join forces with other carriers to “obtain assets from others that are less interested in serving rural America.” To the second point, Commissioner O’Rielly stated that, “It is imperative that the [FCC] decide key policy issues that will impact investment decisions for years to come.” To that end, he suggested, it is in rural carriers’ best interests “not only to press to get rate-of-return reforms accomplished, but also to push the Commission to complete broader CAF reforms.” In particular, Commissioner O’Rielly indicated that if the Commission “is able to wrap up the challenge process and all other decisions needed to make offers to the price cap carriers by the end of this year,” it can reasonably finalize the rest of the decisions needed for CAF Phase II in early 2015, eliminating any reason for further delay of CAF for small carriers.
Finally, Commissioner O’Rielly commented on the future of telecommunications regulation, largely suggesting that new regulation was needed for new technologies and services. Particularly in the context of net neutrality, O’Rielly made clear that he did not support Title II application, or even an application-and-forbearance scheme. “I am extremely concerned that applying Title II to any part of broadband or the Internet will [chill access to capital and broadband deployment]. And it will impact not only last-mile ISPs that own transmission facilities but anyone that uses the service as an input to deliver content across the Internet, including some edge providers.” FCC Issues $10 Million Notice of Apparent Liability for Mishandling Proprietary Information On October 24, the FCC issued a Notice of Apparent Liability for Forfeiture against TerraCom and YourTel America for collecting names, addresses, Social Security numbers, driver’s licenses, and other proprietary information belonging to low-income Americans and storing them on “unprotected Internet servers that anyone in the world could access with a search engine and basic manipulation.” The proposed forfeiture is $10,000,000. Specifically, the FCC found TerraCom and YourTel America apparently liable for violating Section 222(a) and 201(b) of the Communications Act by: (i) failing to properly protect the confidentiality of consumers’ proprietary information they collected from applicants for the companies’ wireless and wired Lifeline telephone services; (ii) failing to employ reasonable data security practices to protect consumers’ proprietary information; (iii) engaging in deceptive and misleading practices by representing to consumers in the companies’ privacy policies that they employed appropriate technologies to protect consumers’ PI when, in fact, they had not; and (iv) engaging in unjust and unreasonable practices by not fully informing consumers that their proprietary information had been compromised by third-party access.
In finding the companies apparently liable for violating Section 222(a), the FCC noted that the scope of “proprietary information” protected by Section 222(a) is broader than the statutorily defined term “customer proprietary network information” (CPNI) and that had Congress wanted to limit the protections of subsection (a) to CPNI, it could have done so. According to the FCC, the term “proprietary information” used in Section 222(a) should be interpreted in the commonly understood sense of the term, i.e. “information that should not be exposed widely to the public, so when applied to information about individuals, the term must include personal data that customers expect their carriers to keep private,” even if it is not CPNI.
Industry USDA Announces Awards of $190 Million in Broadband Grants and Loans in Rural Areas On October 22 the USDA issued a press release announcing $190.5 million in grants and loans for 25 projects in 19 states, Puerto Rico and the U.S. Virgin Islands. The purpose of the funds is “to make broadband and other advanced communications infrastructure improvements in rural areas.” For example, in Arkansas, Arkwest Communications is receiving a $24 million telecommunications loan to provide voice, broadband, and internet TV service to nearly 4,000 customers and to make other system improvements. Nexus Systems, in Monroe, La., is receiving a $2.5 million Community Connect grant to provide high-speed broadband in the sparsely-populated, economically depressed Powhatan, La. area. Public television broadcasters serving the U.S. Virgin Islands will use a $750,000 USDA grant to replace analog mobile production and satellite equipment with a digital high-definition video recorder. In a statement, Agriculture Secretary Tom Vilsack said, “Modern telecommunications and broadband access is now as essential to the businesses and residents of rural America as electricity was in the 1930s. The investments we are announcing today will provide broadband in areas that lack it, help rural-serving public television stations begin using digital broadcasts, and support other telecommunications infrastructure improvements.” A complete list of the funding awards can be found here . Apple Announces Participation on ConnectED Program On October 27, Apple unveiled the details of its participation in the Obama administration’s ConnectED effort, which seeks to connect 99 percent of America’s students to high-speed broadband Internet by 2018. Specifically, Apple has chosen 114 schools in 29 states to give technology grants. Every student at participating schools will receive an iPad, every teacher and administrator will receive an iPad and a Mac, and every classroom will receive an Apple TV set-top box. In addition, each school will be assigned an Apple Education team to ensure technical and educational needs are met, as well as a professional development specialist to ensure that teachers are prepared to integrate technology into their curricula.
According to its press release, Apple has chosen to provide its support to schools where at least 96 percent of the students are eligible for free or reduced-price lunches. The company also notes that 92 percent of students at partner schools are of Hispanic, Black, Native American, Alaskan Native, or Asian heritage.
Calendar At-a-Glance October
Oct. 1 – FCC Form 477 due (Local Competition and Broadband Reporting) .*
Oct. 14 – Deadline for applications for rural broadband experiments .* November
Nov. 1 – Deadline for Part 90 Licensees and Signal Boosters to register existing signal boosters.
Nov. 3 – FCC Form 499-Q (Quarterly Telecommunications Reporting Worksheet) is due.
Nov. 3 – Reply comments are due on IP Captioning proceeding.
Nov. 7 – Deadline for Rural Broadband Experiments Applications (6 p.m. EST).
Nov. 7 – Nominations and statements of interest for PSAP Architecture Task Force are due.
Nov. 10 – Auction 97 Mock Auction.
Nov. 10 – Responses to CAF Phase II Challenges are due.
Nov. 10 – Reply comments are due on the Healthcare Connect Fund Public Notice.
Nov. 10 – Comments on electronic delivery of license authorizations and ASR registrations are due.
Nov. 13 – Auction 97 begins.
Nov. 14 – Comments are due on USDA Notice on Changes to Guaranteed Loan Program Regulations.
Nov. 14 – Comments are due on Part 32 Accounting Rules NPRM. December
Dec. 1 – Deadline to Increase Residential Rate Floor to $16.
Dec. 15 – Deadline for Special Access Data Collection.
Dec. 15 – Reply comments are due on Part 32 Accounting Rules NPRM.
Dec. 17 – Comments are due on Part 22 Technical Changes. January
Jan. 19 – Reply comments on Part 22 Technical Changes are due. * These deadlines have been suspended indefinitely. New deadlines have not been set at this time.
| BloostonLaw Private Users Update | Vol. 15, No. 10 | October 2014 |
Reminder: Part 90 Class B Signal Booster Registration Must be Completed by November 1, 2014; FCC Modifies Technical Rules Final Reminder: Part 90 licensees and signal booster operators that operate or intend to operate Part 90 Class B private land mobile (non-consumer) signal boosters will be required to register existing signal boosters with the Commission by November 1, 2014. Any new Class B signal boosters installed on or after November 1, 2014 must be registered before the device can be operated. Registration will be made electronically and paper filings will not be accepted. The FCC is holding to this deadline despite the unavailability of the registration site earlier this week. If you have a signal booster that requires registration, and are confused about the registration process, please contact our office for assistance. In a related matter, the FCC recently released its Order on Reconsideration and Further Notice of Proposed Rulemaking in which it modified the rules that affect the manufacturing and distribution of service provider signal boosters (which are typically used for cellular systems) and for consumer signal boosters. The most relevant change that could affect our clients is the labeling restriction for consumer signal boosters. This restriction requires that the sentence “[t]his device may ONLY be operated in a fixed location for in-building use” be listed in four locations: (1) in any online listing, in point-of-sale marketing materials; (2) in any user/owner’s manual or installation instructions; (3) on the packaging; and (4) on a label affixed to the booster itself. Additionally, the FCC has added technical requirements for mobile provider-specific Consumer Signal Boosters, which include: stronger noise limits, stronger gain limits if the device is directly connected or using direct contact coupling; and maximum gain limitations for signal boosters of 58 dB (for frequencies below 1 GHz) and 65 dB (for frequencies above 1 GHz) if an inside antenna is used and the booster has both an automatic gain adjustment based on isolation measurements between the booster donor and server antenna with automatic feedback cancellation. Finally, the Commission has indicated that it will apply the “antenna kitting rule” to all Provider-Specific Consumer Signal Boosters so that all boosters are sold together with antennas, cables, and/or coupling devices that meet the FCC’s requirements for use with signal booster equipment. FCC Issues Paging and Radiotelephone Compliance Reminder; Asks for Comment on Technical Changes This article will be of concern to those clients who obtained Part 22 paging licenses from the FCC through its paging auctions for the purpose of providing dispatch or private carrier paging services. The FCC has issued a Public Notice, reminding Part 22 licensees of several rules that the FCC must feel are not always being followed; and the Commission’s Wireless Telecommunications Bureau is seeking comments on any technical or operational flexibility that the Commission may provide that might result in more intensive use of the band. Comments are due December 17, 2014 and reply comments are due January 19, 2015. Clients trying to make more effective use of their Part 22 channels for dispatch, data and other services should take this opportunity to advocate rule changes that would help this cause. In the meantime, it is advisable that Part 22 licensees check to ensure their compliance with the following rules that the FCC is focused on, since a warning shot such as the Public Notice is likely to be setting the stage for enforcement efforts. Licensees authorized in the Part 22 Paging and Radiotelephone Service generally have the authority to operate various voice and data services, and they must comply with all applicable Part 20 and 22 rules. While the small number of channels allocated under Part 22 were originally intended for paging and the now defunct IMTS service, licensees have been looking to make more creative use of this spectrum now that the demand for traditional paging service is at an all-time low. Several companies are using these frequencies for trunking, sometimes pursuant to an FCC waiver, to fill the void left by Nextel.
The FCC is reminding licensees to obey are the following Part 22 Rules unless they have been granted a waiver by the FCC: - Channel bandwidth . Unless otherwise indicated, all channels have a bandwidth of 20 kHz and are designated by their center frequencies in megahertz. The paging channel spacing may be more than 20 kHz, but the authorized channel bandwidth as specified by the rules is 20 kHz (10 kHz to each side of the center frequency).
- Emission limitations . Under Part 22, the power of any emission outside of the authorized operating frequency ranges must be attenuated below the transmitting power by at least 43 + 10 log (P) dB. Alternative out of band emission limits may be established at specified frequencies (band edges) in specified geographical areas pursuant to a private contractual arrangement among all affected licensees and applicants, and must be disclosed to the FCC, upon request.
- Effective radiated power limits . The effective radiated power (ERP) of transmitters operating on paging channels must not exceed the limits in section 22.535.
- Permissible operations . The channel assignments listed in section 22.531 are allocated for one-way paging operations. Paired channels listed in section 22.561 are for one-way or two-way mobile operations.
- Permissible communications paths . Mobile stations may communicate only with and through base stations. Base stations may communicate only with mobile stations and receivers on land or surface vessels.
- Equipment authorization . All the equipment operated in Part 22 paging must have been certified by the Commission under applicable Part 22 paging rules.
- Protection of existing service . Pursuant to section 22.537 or section 22.567, all facilities authorized to operate pursuant to a paging geographic area authorization (i.e., an auction license) must provide co-channel interference protection to all authorized site-based co-channel facilities of incumbent licensees within the paging geographic area.
- Canadian border . Licensees planning to operate transmitters north of Line A are first required to obtain Canadian clearance by filing an application for modification of their license(s), including the technical parameters of the planned site, in order for the Bureau to coordinate planned operations with Industry Canada.
The Wireless Bureau recognizes that additional technical and operational flexibility may promote more intensive use of the licenses, and therefore seeks comment on whether it is appropriate to update the Paging and Radiotelephone Service rules to provide flexibility in the types of uses and technologies that can operate on these channels (such as narrowband equipment, or using offset frequencies between the traditional channels). For example, the FCC recently modified its Part 90 Private Radio rules to permit the use of Terrestrial Trunked Radio (TETRA) equipment in certain portions of two bands – the 450-470 MHz portion of the UHF band (421-512 MHz), and Business/Industrial Land Transportation 800 MHz band channels (809-824/854-869 MHz). However, use of TETRA equipment on Part 22 frequencies may violate channel bandwidth and emission limitations rules. The Bureau asks whether the Part 22 rules should be updated to permit technologies like TETRA. As a further example, licensees planning to deploy transmitters north of Line A are required to first obtain Canadian clearance. Some licensees, who are unable to get Canadian clearance on the center frequency, may wish to use offset frequencies in order to get Canadian approval. Use of frequency offsets may violate channel bandwidth and emission limitation rules. The Bureau asks whether flexibility in channel bandwidths would be useful in these instances and under what conditions. Interested clients that wish to file comments or participate in group comments should contact us promptly. VoIP Phone Systems Can be Subject to Hacking, Leaving Businesses with Huge Losses News outlets are reporting that over the past year, communications fraud involving VoIP systems has resulted in almost $4.75 billion dollars in fraudulent phone calls to premium-rate telephone numbers in foreign countries such as Somalia, Gambia and the Maldives. The scams are reportedly perpetrated by hackers without the knowledge of the business owner by breaking into the Internet connected phone network over a weekend or holiday when the businesses are typically closed and routing hundreds of calls to premium-rate telephone numbers that have been leased by criminal organizations. Because hackers are using high speed computers, they are able to make hundreds of calls at the same time, which increase the charges to the unwary business exponentially. In some cases, small businesses have been saddled with fraudulent phone charges as high as $200,000. As a result of this fraudulent activity, there have been calls from Congress for the FCC and law enforcement to take action against fraudsters, but to date, there apparently has not been much movement or interest. If you are using a VoIP system for your telephone system, it is critical that you have protections in place to prevent hackers from gaining access to your system over the Internet. Protections can include disabling any call-forwarding features, and requiring strong passwords for voice mail systems and for placing international calls. Essentially, experts are saying that VoIP phone systems should be treated like any other computer device that is connected to the Internet. Our clients providing VoIP-based services will also want to work with liability counsel about communicating this risk, and potential remedies, to their customers. FCC Refuses to Reconsider Termination of Microwave Licenses Because Request is One Day Late The FCC has released an order denying a Petition for Reconsideration of the proposed termination of four microwave licenses held by Startouch, Inc. The reason for the denial was that the FCC received the Startouch petition for reconsideration one business day late. The FCC’s Order explains that the FCC is powerless to extend or waive the 30-day filing period for petitions for reconsideration since the time period was set by Congress in Section 405(a) of the Communications Act, unless the petitioner is able to demonstrate that extraordinary circumstances existed. In this case, the FCC concluded that Startouch made no such demonstration, especially since it did not even acknowledge that its petition was filed late.
It is extremely important that petitions be filed in a timely manner. If you receive correspondence from the FCC which you believe is in error, please contact our office immediately so that we can assist you in making any filings that might be required before the filing deadline occurs. FCC Modifies Marine Licenses to Correct Errors in Original Grants Over the past month, the FCC has issued two orders seeking to modify various Marine Services licenses that contained either incorrect frequency assignments or license terms beyond the period to which the Coast Guard agreed. In the first case, the FCC issued an order which modified the license for a Marine Utility Service license held by Conrad Orange Ship Yard because the FCC erroneously granted a license for a marine utility station which authorized the frequencies 157.350 and 161.950 MHz in an area east of Texas. Unfortunately, these frequencies were sold at a spectrum auction in 1998. Upon discovering this error, and even though the FCC’s action had become final and non-appealable, the FCC issued an order on September 15, 2014, proposing to delete the frequencies 157.350 and 161.950 MHz from the license for station WQPU707. Because Conrad Orange Ship Yard did not protest the Commission’s order proposing the modification of its license within the required 30-day period, the FCC determined that the licensee had been deemed to consent to the proposed deletion of these frequencies from its license. In the second case, the FCC has issued an order proposing the modification of various Private Coast and Marine Utility station licenses issued to Anadarko Petroleum, Charles County, Maryland, the Commonwealth of Virginia, Louisville Gas and Electric, Marathon Petroleum Company LP and the Metropolitan Washington Airport Authority in order to change the license expiration dates to conform to the terms of the concurrence issued by the United States Coast Guard to allow these licensees to use Coast Guard frequencies. Between March 2013 and August 2014, the FCC issued various licenses for 10-year terms even though each application included a letter from the US Coast Guard which stated that the concurrence was for a period of five years (and eight years in the case of the Commonwealth of Virginia). Each of these licensees had requested permission to utilize Coast Guard spectrum in order to communicate with the Coast Guard on matters pertaining to safety, search and rescue, law enforcement, and environmental protection activities. The FCC notes that non-federal users may utilize spectrum allocated to the Federal Government provided that the use conforms to the conditions imposed by the relevant federal agency. In this case, the FCC granted licenses for 10-year license terms even though the Coast Guard had consented to a shorter period. As a result, the FCC recognized that it should not have granted the license applications for ten-year license terms. Unfortunately, each of the grants was more than 40-days old and the action therefore because final and non-appealable. As a result, the FCC was forced to take action pursuant to Section 316 of the Communications Act and propose the modification of these licenses to conform the license terms to the terms of the concurrence issued by the Coast Guard with respect to each license application. Under the Communications Act, the FCC is permitted to modify a station license if it will promote the public interest – which in this case the FCC asserts it would since the action would limit the license terms to the period for which the Coast Guard concurred to the use of its frequencies. Each of the licensees will have 30 days within which to respond to the FCC’s proposed license modification. Absent a response, the FCC will assume consent on the part of the licensees since the FCC’s Order is being served on each licensee by certified US mail. Orders proposing an involuntary modification to an FCC radio license are mailed to the licensee by certified mail. Should you ever receive correspondence from the FCC proposing a modification of your license, it is critical that you contact our office immediately upon receipt. As demonstrated in Conrad Orange Shipyard case, a failure to respond to a proposed modification will result in the FCC assuming your consent to the proposed action – which could then have a disastrous impact on your business operations. FCC Seeks Nominations for Optimal Public Safety Answering Point Architecture Task Force The FCC has announced that it is seeking nominations and expressions of interest for membership on the Optimal Public Safety Answering Point Architecture Task Force. Nomination applications and statements of interest are due November 7. This task force will study and report findings and recommendations on the Public Safety Answering Point (PSAP) structure and architecture in order to determine whether additional consolidation of PSAP structure and architecture improvements would improve operational efficiency, safety of life and reduce costs while ensuring that needed integration remains with local first responder dispatch services and support. It will be comprised of members from various groups, including: (a) state, tribal and/or local governmental agencies and organizations with expertise in communications and public safety issues; (b) Federal government agencies with expertise in communications and/or homeland security issues; (c) communications service providers and organizations representing communications service providers, including: wireline, wireless, interconnected VoIP and other IP enabled service providers; (d) system service providers, including vendors of equipment and services used to provide critical network infrastructure to PSAPs; (e) organizations and other entities that represent consumer or community organizations such as those which represent end-users with disabilities, the elderly, those living in rural areas, and those representing populations that speak languages other than English; and (f) qualified representatives of other stakeholders and interested parties with relevant expertise. It is important to note that the needs of PSAPs in urban areas may be significantly different from those in rural areas even though the underlying mission is virtually identical. Because the needs from one area to another may vary dramatically, we encourage those interested clients to apply for membership on this task force. Nomination applications and statements of interest are due November 7, 2014 and should include the following information: - Name, title and organization of the nominee along with a description of the organization, sector or other interest that the nominee will represent;
- Nominee’s mailing address, e-mail address, telephone number and fax number; and
- A statement which summarizes the nominee’s qualifications and reasons why the nominee should be appointed to the Task Force. If the nominee will represent a specific organization, the statement should also include a description of the organization and an explanation of the benefit of having the organization represented on the Task Force.
Changes Proposed to Distribution of Wireless License Authorizations and Antenna Structure Registrations The FCC is seeking comment on a proposal to make electronic delivery of license authorizations and ASR registrations the default method of delivery. Comments are due November 10, 2014. Specifically, the FCC proposes to provide for two methods of electronic delivery: (a) directly through the License Manager module in ULS or the Dashboard module in the ASR system or (b) via e-mail upon the grant of an application if the applicant provides the FCC with an e-mail address. The FCC notes that not all users will want to receive their authorizations or registrations electronically and has therefore proposed to allow licensees and registrants the option of electing delivery of documents by U.S. Mail in the License Manager or Dashboard modules even though the default delivery method would become electronic delivery. While electronic delivery of authorizations and registrations is ecologically sound, there are pitfalls that you should be aware of if you would not receive a paper copy in the mail. If e-mail is selected, it is possible that e-mails could either be lost in cyberspace or directed to your SPAM filter. Or the responsible person for FCC matters in your company may leave or change email address, and notifying the FCC of this change may be overlooked. Likewise, receipt of a paper document from the FCC serves as an indication that an application has been granted. It is important to note that the “official” electronic authorizations or registrations that would be sent from the FCC via e-mail or through its License Manager or Dashboard modules would be the only official electronic documents that may be used, unless the FCC adopts the paper option discussed above and you elect that option. Any electronic FCC authorization or registration with a “Reference Copy” watermark ( i.e., one printed from the ULS database) is not the official authorization or registration and therefore cannot be relied upon for compliance with the FCC’s requirement that licensees maintain an official copy of the license authorization or ASR registration. Thus, if you elect electronic delivery, it will be critical for you to print off an official copy from either your e-mail (if you elect e-mail delivery) or your ULS dashboard account and not from the public side of the FCC’s ULS or ASR systems. Under its interim procedure, licensees and tower owners may log into the FCC’s Universal Licensing System (ULS) or Antenna Structure Registration (ASR) System and advise the Commission that they wish to receive their authorizations electronically – much the way you are able to do with banking statements from many of your financial institutions. During the interim period, if no action is taken, the FCC will continue to mail out paper authorizations as it has done for years. Marriott Pays $600k to Resolve Wi-Fi Blocking Investigation Marriott International, Inc. and its subsidiary, Marriott Hotel Services, Inc., have agreed to pay $600,000 to resolve an FCC investigation into whether Marriott intentionally interfered with and disabled Wi-Fi networks established by consumers in the conference facilities of the Gaylord Opryland Hotel and Convention Center in Nashville, Tennessee, in violation of Section 333 of the Communications Act. This portion of the Act prohibits willfully or malicious interference to radio communications. In March 2013, the Commission received a complaint from an individual who had attended a function at the Gaylord Opryland. The complainant alleged that the Gaylord Opryland was “jamming mobile hotspots so that you can’t use them in the convention space.” The FCC Enforcement Bureau’s investigation revealed that Marriott employees had used containment features of a Wi-Fi monitoring system at the Gaylord Opryland to prevent individuals from connecting to the Internet via their own personal Wi-Fi networks, while at the same time charging consumers, small businesses, and exhibitors as much as $1,000 per device to access Marriott’s Wi-Fi network. In some cases, employees sent de-authentication packets to the targeted access points, which would dissociate consumers’ devices from their own Wi-Fi hotspot access points and, thus, disrupt consumers’ current Wi-Fi transmissions and prevent future transmissions. Under the terms of the Consent Decree the FCC announced last Friday, Marriott must cease the unlawful use of Wi-Fi blocking technology and take significant steps to improve how it monitors and uses its Wi-Fi technology at the Gaylord Opryland. Marriott must institute a compliance plan and file compliance and usage reports with the Bureau every three months for three years, including information documenting any use of access point containment features at any U.S. property that Marriott manages or owns. Marriott will also pay a civil penalty of $600,000 to resolve the matter. This consent decree should remind our clients, as well as other property owners, that while they may control the deployment of fixed radio stations on their property, they may not interfere with communications, including Internet wireless access, that occur on their property using mobile devices. FCC Proposes $10,000 Fine Against Global Tower For Failing to Properly Light Tower The FCC has issued a Notice of Apparent Liability against Global Tower for failing to (a) properly light its antenna tower at Oak Park, Michigan and (b) monitor its antenna tower lighting as required by the FCC’s Rules. In particular, the FCC’s field agents noted that the antenna tower had been unlit for two consecutive nights. Upon investigation, Global Tower conceded that it had been unaware that the tower was dark and that it had failed to properly monitor the tower’s lighting system or maintain an operational lighting alarm system. The FCC treats violations of its obstruction marking and lighting rules very seriously because of the dangers to air navigation. In addition to maintaining proper marking and lighting, it is critical that appropriate notifications be made to the FAA in the event of a light outage. Here, even though Global Tower took prompt action to remedy the light outage and repair its alarm monitoring system, the FCC has proposed a fine in the amount of $10,000. FCC Grants Port Authority of New York and New Jersey One Year Extension of Construction Deadlines for World Trade Center Stations With the collapse of the World Trade Center towers following the terrorist attacks on September 11, 2001, the Port Authority of New York and New Jersey lost an important part of its communications capabilities for the World Trade Center complex. This is because several public safety transmitters were housed at the World Trade Center. Since that time, the Port Authority has held a waiver of Rule Section 90.157, which provides that any station in the Private Land Mobile Radio Services that has not been operational for more than one year is deemed to have permanently discontinued operation.
In granting an extension of the waiver request, the Commission found that the Port Authority has demonstrated that unique circumstances caused the discontinuance of its operations these stations and that these radio facilities “will continue to serve an integral role in the extensive network of transportation, terminal, and commercial facilities throughout the New York metropolitan area, especially for public safety communications. . .” The Commission noted further that should circumstances warrant, the Port Authority could request additional time, as necessary. State of Iowa Granted Waiver of Five-Year Interim Substantial Service Deadline The State of Iowa holds 700 MHz spectrum on “state channels” in the public safety narrowband segment of the 700 MHz band. Pursuant to the FCC’s Rules, licensees on this channel had a five-year substantial service obligation that was due on June 13, 2014 – which was five years from the completion of the DTV transition on June 12, 2009. On June 6, 2014, the State of Iowa requested a waiver of the five-year interim benchmark deadline that was applicable to one of its 700 MHz licenses. In justifying the rule waiver request, the State of Iowa stated that it is “actively pursuing a statewide 700 MHz Project 25 Phase II land mobile radio system” that will “provide radio service to the Department of Public Safety, Department of Transportation, Department of Natural Resources and the Department of Corrections and other interested public safety organizations.” Iowa indicated that the delay was due in part to issues with its procurement process since it was required to make refinements to its Requests for Proposals (“RFPs”). The FCC noted that the State of Iowa proposes to build out its 700 MHz system in three phases in order to provide coverage throughout the state, including in rural areas. In that regard, Iowa proposes to have service to one-third of the population by December 31, 2016 and two-thirds by December 31, 2017. The Commission concluded that it would be premature to cancel Iowa’s license given its efforts to bring the 700 MHz system to fruition. As a result, the FCC determined that a grant would be in the public interest since the State of Iowa is on the cusp of making a contract award. Additionally, the FCC also noted that the State will not know if the system is funded since the funding package will be part of the legislative agenda for the session that starts in January 2015. That said, the FCC made its grant conditional on the State notifying the Wireless Telecommunications Bureau (a) on November 8, 2014 whether it has awarded a contract for its proposed system and if not, why not and when it expects to do so and (b) immediately upon a grant or denial of funding for the proposed system by the State legislature. FCC Adopts Order Implementing Changes to 700 MHz Public Safety Narrowband Spectrum Allocation The FCC has adopted rules which will implement changes to the rules governing the 700 MHz public safety narrowband spectrum (769-775/799-805 MHz) that are designed to promote the flexible and efficient use of public safety spectrum in the 700 MHz band. Significant among these changes is the elimination of the December 2016 interim deadline to narrowband these frequencies to 6.25 kHz wide channels as well as revising and updating various the technical rules in order to enhance interoperability and open up channels to new uses. Finally, the FCC released reserve spectrum in order to make sufficient spectrum available to licensees migrating from the UHF T-Band. The FCC’s actions include the following: - Elimination of the December 31, 2016 narrowbanding deadline for 700 MHz public safety narrowband licensees to transition from 12.5 kilohertz to 6.25 kilohertz channel bandwidth technology.
- Re-designation of channels in the 700 MHz band that are currently licensed for secondary trunking operations for public safety aircraft voice operations, consistent with NPSTC’s 2010 proposal in order to facilitate air-ground use.
- Declining to establish a Nationwide Interoperability Travel Channel.
- Allowing voice operations on Data Interoperability Channels on a secondary basis.
- Reallocating the Reserve Channels to General Use Channels and afford T-Band public safety licensees priority for licensing of the former Reserve Channels in T-Band areas.
- Declining to increase the permissible 2 watt ERP for radios operating on the mobile-only low power channels.
- Encouraging manufacturers of 700 MHz public safety radios to obtain Compliance Assessment Program (CAP) certification for new equipment to demonstrate that the equipment meets P25 interoperability standards as required by Section 90.548 of the Commission’s rules. CAP certification will presumptively establish compliance with Section 90.528; manufacturers that elect not to obtain CAP certification must disclose their basis for asserting compliance.
- Encouraging Public Safety Licensees to incorporate CAP into their solicitations for supporting equipment.
- Adopt rules governing the spectral output of signal boosters when simultaneously retransmitting multiple signals.
- Adopting Effective Radiated Power (ERP) as a regulatory parameter in this band, in place of Transmitter Power Output (TPO).
- Recommending (but not mandating) that 700 MHz radios operating on interoperability calling channels employ the Project 25 Network Access Code (NAC) $293. The FCC also clarified that 700 MHz radios must be capable of being programmed to any of the 64 interoperability channels, but that all interoperability channels do not have to be accessible to the radio’s user.
- Clarifying that the rules do not allow analog operation on the 700 MHz interoperability channels.
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David George and Bill Noyes
