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. 18, No. 14 | April 1, 2015 |
Open Internet Order Repealed; Internet Closes Immediately In a sudden and shocking turn of events, the FCC repealed its Open Internet Order as of April 1, 2015, thereby closing the Internet forever. Anonymous FCC sources stated “We were better off as a country before the internet. Now hours of productivity are wasted on tomfoolery such as the Kardashians and angry birds. We have got to put a stop to it all.” BloostonLaw Contact: April F. Ools Headlines
FCC Expected to Adopt Spectrum Sharing and “Small Cells” Proposal in 3.5 GHz “Innovation Band” At its next Open Meeting scheduled for April 17th, the FCC is expected to adopt Part 96 Rules and issue a Further NPRM for a new “Citizen’s Broadband Service” in the 3550-3700 MHz band. The service would make 150 megahertz of contiguous spectrum available for general consumer use, carrier-grade small cell deployments, fixed wireless broadband services, and other innovative uses on the basis of a “tiered access” spectrum sharing model. The item comes in response to an NPRM ( FCC 14-49 ) that was issued last Spring and which followed upon recommendations in a July 2012 Report issued by the President’s Council of Advisors on Science and Technology (PCAST). The PCAST Report recognized that access to wireless spectrum was an increasingly important foundation for America’s economic growth, and that advances in technology would allow for shared use of spectrum that had previously been set aside exclusively for Federal Government operations. A recent FCC Blog post by Chairman Tom Wheeler refers to the 3.5 GHz band as an “innovation band.” “As a result of technological innovations and new focus on spectrum sharing, we can combine it with adjacent spectrum to create a 150 megahertz contiguous band previously unavailable for commercial uses,” wrote Wheeler. “It provides an opportunity to try new innovations in spectrum licensing and access schemes to meet the needs of a multiplicity of users, simultaneously. And, crucially, we can do all of this in a way that does not harm important federal missions.” Under the FCC’s proposal, access and operation within the 3.5 GHz band would be managed by a dynamic database known as the Spectrum Access System or “SAS.” The SAS incorporates technical and functional requirements necessary to manage spectrum access and limit interference between three categories of users – Incumbent Access, Priority Access, and General Authorized Access (GAA) tiers.
Existing primary operations – including authorized federal users and grandfathered Fixed Satellite Service (FSS) earth stations – would compose the Incumbent Access tier, and would receive protection from harmful interference within geographic Exclusion Zones from Citizens Broadband Radio Service users. The CBRS Priority Access tier would come next and make targeted, short-duration licenses” available for auction. Finally, the CBRS General Authorized Access tier would have lowest priority, but would be open for free use by any FCC-certified device (i.e. like Wi-Fi). Adoption of the Citizen’s Broadband Service Report and Order is not without some controversy. For one, the R&O is expected to adopt technical, auction, and allocation rules that are applicable to the entirety of the 3550-3700 MHz band. As a result, 3650-3700 MHz operators who now have a measure of protection from having been first to deploy service in their area may be forced to purchase “Priority Access” rights at auction to ensure the same level of protection as they enjoy now. Licensees in what is known as the 3.65 GHz service currently obtain a non-exclusive nationwide license and combine this with registration of fixed or base stations under Part 90 Rules. Another issue involves which sorts of wireless technologies will be permitted for use on the 3550-3700 MHz band, and the possibility that commercial operators may use proprietary technologies to integrate 3.5 GHz spectrum with their licensed spectrum in a way that could “drown out” other users in the zero-cost GAA tier. In this regard, think tank New America Foundation and other public interest advocates have raised concerns with the FCC about a new technology known as “License Assisted Access” and how its use could inhibit open and fair sharing of the 3.5 GHz band unless the FCC adopts appropriate safeguards. While we have not had an opportunity to review the new rules or the fine print of the Commission’s yet-to-be-adopted Report and Order, industry reports and language from FCC Chairman Wheeler’s blog post strongly suggest that the Commission is planning to include the 3650-3700 MHz band as part of the new Part 96 Rules. It will be important for 3.65 GHz band operators to be aware of the FCC’s timetable for transition to the new rules, and to understand what grandfathering rights will apply. FCC Adopts NPRM on Part 4 Outage Reporting On March 27, the FCC adopted a Notice of Proposed Rulemaking, Second Report and Order, and Order on Reconsideration regarding its Part 4 outage reporting rules, which require certain providers of communications to electronically file reports of network outages that exceed specified thresholds of magnitude and duration. In the NPRM, the FCC seeks comment on proposals to improve the Commission’s Part 4 rules. According to the NPRM, the proposals are based largely on the FCC’s experience with the Network Outage Reporting System (NORS) program. The FCC emphasized that it is seeking to determine the most cost-effective approach to revising the rules, and so specifically seeks comment on the costs and benefits associated with the proposals, which include: - revising Section 4.5(e)(1) to clarify that any network malfunction or higher-level issue that significantly degrades or prevents 911 calls from being completed constitutes a “loss of communications to PSAP(s),” regardless of whether the PSAP is rendered completely unable to receive 911 calls;
- amending Part 4 to require the reporting of systemic wireless call failures that result from radio access network (RAN) overloading;
- redefining the reporting threshold, which is currently defined in terms of impact on DS3 circuits, in terms of “OC3 minutes” instead (i.e., based on impact on OC3 circuits or other circuits or aggregations of circuits that provide equal or greater capacity);
- shortening the reporting timeframe for simplex outage events from five days to 48 hours;
- adopting a more standardized, technology neutral method for calculating the number of users “potentially affected” by a wireless network outage, such as multiplying the number of cell sites disabled as part of the outage by the average number of users it serves per site or the actual number of users that were being served at each affected cell site when the outage commenced (using the Visitor Location Register);
- classifying as “special offices and facilities” those facilities enrolled in or eligible for the Telecommunications Service Priority (TSP) program, which prioritizes the restoration and provisioning of circuits used by entities with National Security/Emergency Preparedness (NS/EP) responsibilities and duties;
- amending the definition of “special offices and facilities” to exclude all airports other than those designated “primary commercial service” airports in the NPIAS; and
- granting states read-only access to those portions of the NORS database that pertain to communications outages in their respective states, and entertaining requests from other federal agencies for access to NORS data, but acting upon such requests on a case-by-case basis.
Deadlines for comments and reply comments on the NPRM portion of the document have not yet been established. In the Second Report and Order, the FCC declined to adopt a proposal to extend Section 4.5(b) to cover general aviation airports. In the Order on Reconsideration, the FCC addressed nine Petitions for Reconsideration of aspects of the 2004 Part 4 Report and Order. FCC Asserts Petitions for Review of Open Internet Order are Premature On March 27, the FCC filed a Notice of Multi-circuit Petitions for Review to the United States Judicial Panel on Multi-district Litigation, concerning the Petitions for Review that were filed regarding its recent Open Internet Order. In its cover letter to the Court, the FCC asserted that the Petitions for Review are premature because the Order has not appeared in the Federal Register yet and, therefore, is not yet considered “final” — a necessary prerequisite for Petitions for Review. As we reported in last week’s BloostonLaw Telecom Update, two Petitions for Review were filed the same day the Order was released to the public — USTelecom filed a “Protective” Petition for Review with the United States Court of Appeals for the District of Columbia, and Alamo Broadband filed in the United States Court of Appeals for the Fifth Circuit. In cases where review of the same order is sought in multiple circuits, the Judicial Panel on Multi-district Litigation is charged with determining in which court the review will ultimately take place. Readers may recall the same process occurred with the FCC’s USF/ICC Reform Order, which ultimately ended up being reviewed in the 10th Circuit. The FCC’s letter indicates it believes that the court that is selected by the Panel to review the Order will be the one that will decide whether the Petitions are actually premature, and further that the FCC intends to file motions to dismiss on those grounds at that time. Law & Regulation
Order on Access Tariff Filing Procedures Released On March 27, the FCC’s Pricing Policy Division issued an Order establishing the procedures for filing this year’s annual access charge tariffs and Tariff Review Plans (TRP) for price cap ILECs and for rate-of-return ILECs subject to sections 61.382 and 61.393. The Order sets an effective date of July 1, 2015, for the July 2015 annual access charge tariff filings, and established several key deadlines: Comments on the short form TRP are due May 29, and reply comments due June 5. ILEC tariffs are due June 16, for those filing on 15 days’ notice, and June 24, for those filing on seven days’ notice; petitions to suspend or reject tariff filings made on 15 days’ notice are due June 23, with replies due June 26; and petitions to suspend or reject tariff filings made on seven days’ notice are due June 26 (by noon Eastern Time), with replies due June 29 (by noon Eastern Time). Order Clarifying ICC Transition Rules for Rate-of-Return LECs Effective April 27 On March 26, 2015, the FCC published in the Federal Register the Order issued on February 24, 2015, clarifying certain rules relating to implementation of the ICC transition for rate-of-return LECs adopted in the USF/ICC Transformation Order. The Order is therefore effective April 27. As we reported in the February 25 edition of the BloostonLaw Telecom Update, the Order clarified that a rate-of-return carrier that received too much Eligible Recovery in 2012-13 because of an under-projection of demand for that tariff period, and does not have sufficient Eligible Recovery in 2014-15 to fully offset the 2012-13 amount of over-recovery, must refund the amount that is not offset to the Universal Service Administrative Company (USAC) to avoid duplicative recovery. The FCC further clarified that a rate-of-return carrier that received too little Eligible Recovery in 2012-13 because of an over-projection of demand for that tariff period may seek recovery for any amounts it was not able to recover through its 2014-15 Eligible Recovery from USAC. Petition for Reconsideration Filed on FCC Treble Damages Policy Earlier this month, CTIA, NCTA, COMPTEL and USTelecom filed a Petition for Reconsideration of an FCC Policy Statement in which the FCC adopted a treble damages methodology to assess forfeitures for failure to pay USF, TRS, LNP, NANP, and other regulatory fee programs. Under this methodology, violators’ apparent base forfeiture liability would be three times the debt. According to the associations, the policy violated the Administrative Procedure Act because the FCC failed to hold a notice and comment proceeding before adopting the policy, and is arbitrary and capricious because it abandons the existing, flexible regulatory regime in favor of a one-size-fits-all approach that will lead to “potentially draconian” results. The Associations also argue that the FCC’s assertion that such failure-to-pay violations are continuing violations for the purposes of the statutory maximum forfeiture is “fundamentally inconsistent” with the one-year statute of limitations in the Act. At this time, the FCC has not sought comment on the Petition. Comment Sought on Defining Commencement of Operations in the 600 MHz Band On March 26, the FCC released a Public Notice seeking comment on defining the term “commence operations” in the context of the transition rules applicable to the incentive auction through which certain broadcast television spectrum will be repurposed for wireless flexible use to create the 600 MHz Band. Comments are due May 1, and reply comments are due May 18. Specifically, the FCC proposes that a 600 MHz Band licensee be deemed to “commence operations” in an area when it begins site activation and commissioning tests, using permanent base station equipment and permanent antenna or tower locations. This means that a 600 MHz Band wireless licensee’s operations would be deemed to “commence” prior to the licensee’s launch of commercial services in an area, as site commissioning tests ordinarily take place in the late stages of a deployment, after the wireless licensee has completed construction of physical network infrastructure that will provide commercial service in the area. The FCC seeks further comment on whether any other type of testing by a wireless licensee should be deemed the “commencement” of operations, and if there is a specific stage of testing other than site commissioning tests that would be an appropriate benchmark. Industry
Public Workshop on Broadband Consumer Privacy Scheduled On March 30, the FCC’s Wireline Competition and Consumer & Governmental Affairs Bureaus announced that a public workshop will be held to “explore the Commission’s role in protecting the privacy of consumers that use broadband Internet access service.” The workshop will be held on April 28 at 10 a.m. Eastern Time at FCC headquarters in Washington, D.C., and will be broadcast live at www.fcc.gov/live . The staffed workshop is intended to provide “an opportunity for diverse stakeholders to explore a range of matters associated with the application of statutory privacy protections to broadband Internet access service.” The press release also notes that participants will have the opportunity to “address whether and to what extent the Commission can apply a harmonized privacy framework across various services within the Commission’s jurisdiction.” Calendar At A Glance
April
Apr. 1 – FCC Form 499-A (Annual Telecommunications Reporting Worksheet) is due.
Apr. 1 – Annual Accessibility Certification is due.
Apr. 7 – Reply comments are due on 911 Outage NPRM.
Apr. 13 – Reply comments are due on Letter of Credit Requirements.
Apr. 14 – Deadline for reply comments on Online Public File Expansion NPRM.
Apr. 21 – Reply Comments are due on 911 Policy NPRM. May
May 1 – FCC Form 499-Q (Quarterly Telecommunications Reporting Worksheet) is due.
May 18 – Short Form Tariff Review Plan is due.
May 29 – Comments on Short Form Tariff Review Plans are due.
May 31 – FCC Form 395 (Annual Employment Report) is due. June
Jun. 1 – FCC Form 395 (Annual Employment Report) is due.
Jun. 5 – Reply comments on Short Form Tariff Review Plans are due.
Jun. 16 – Tariffs filed on 15 days’ notice are due.
Jun. 23 – Petitions to Suspend or Reject Tariffs filed on 15 days’ notice are due.
Jun. 24 – Tariffs filed on 7 days’ notice are due.
Jun. 26 – Replies to Petitions to Suspend or Reject Tariffs filed on 15 days’ notice are due.
Jun. 26 – Petitions to Suspend or Reject Tariffs filed on 7 days’ notice are due by noon Eastern Time.
Jun. 29 – Replies to Petitions to Suspend or Reject Tariffs filed on 7 days’ notice due by noon Eastern Time.
| BloostonLaw Private Users Update | Vol. 16, No. 3 | March 2015 |
FirstNet Holds Special Meeting; Chairman Swenson Testifies before Senate Oversight Hearing FirstNet board members recently met to consider issuing a second public notice on key policy questions during a special board meeting, and FirstNet Chairwoman Susan Swenson testified earlier today as part of the Senate Commerce, Science and Transportation Committee’s first oversight hearing about the three-year-old organization to evaluate FirstNet’s progress in establishing the first nationwide broadband network for emergency first responders. Along with Swenson, Bruce Andrews, Deputy Secretary of Commerce; Mark Goldstein, Director (Physical Infrastructure) for the Government Accounting Office (GAO); Todd Zinser, Inspector General of the Commerce Department and Chief Keith Bryant, President and Chairman of the International Association of Fire Chiefs testified before the Committee. The focus of the hearing was three fold: (a) receive an update on progress made by FirstNet; (b) determine any challenges and (c) ensure that service will be provided in rural areas. Progress
Swenson advised that FirstNet has been able to benefit from its experience with the BTOP grants. In particular, issues involving the BTOP grant in Los Angeles have forced FirstNet to reconsider its strategy that was originally going to piggyback a nationwide broadband system on existing state and local government public safety infrastructure. As a result of that evaluation, FirstNet has determined that reliance on commercial infrastructure is more suitable since agreements and memorandums of understanding (MOUs) would not be required. Swenson also reported that FirstNet released a public notice earlier this week seeking comment on system design. It will also be releasing a draft request for proposal (RFP) later this month in order to obtain feedback which can then be reflected in the final version that is scheduled for release at the end of the year. Finally, FirstNet has continued the consultation process with the states and their tribal partners. Swenson indicated that these consultations are ongoing and are necessary for FirstNet to develop an accurate RFP that will meet each state’s individual requirements. Challenges
The Government Accounting Office estimates that the total cost of a nationwide broadband public safety system will be significantly more expensive than the $7 billion that FirstNet will received as a result of the AWS-3 spectrum auction. While FirstNet believes that it will have additional funding because of user fees from commercial players, there is still a concern that FirstNet may not have enough funds to build the system. An audit of FirstNet reflected that there were insufficient internal controls in place to ensure compliance with federal requirements — especially in the procurement area. The GAO indicated that FirstNet is making progress in correcting these deficiencies. Swenson noted that federal requirements and reliance on other agencies for services are slowing FirstNet’s progress. In particular, FirstNet does not have hiring authority and must rely on other agencies for this authority. As a result, it is taking FirstNet six to nine months to hire a new employee. FirstNet and various senators agreed that processes need to be streamlined so that FirstNet can meet its obligations to build the necessary 700 MHz nationwide broadband public safety communications system. Rural Areas
Several of the senators, including Senator Thune expressed concern as to whether FirstNet would bring service to rural America. While it is well known that rural America is not typically a high priority for large commercial carriers due to economic considerations, FirstNet was clear that service throughout rural America and tribal areas is a top priority. In discussing this priority, Swenson stated that there are rural area milestones and that construction will be completed in phases since it is impossible to construct the entire network simultaneously. Swenson concluded her remarks on this subject by indicating that FirstNet talks more about rural than urban because “it is that important.” Cyber Security
The Committee identified cyber security as an issue for ensuring the safety of the public safety communications network because of the potential for terrorists and other individuals or groups to disrupt our critical communications capabilities. Swenson and Secretary Andrews both reassured the Committee that cyber security is a high priority and that FirstNet is collaborating with the appropriate agencies to ensure that the system will be protected from attack. Throughout the hearing, the senators appeared to support the work of FirstNet and want to take steps that will facilitate its success. While there is concern with problems that FirstNet has had in the past, it also appeared that the Committee was supportive of the overall progress made to date. The question is whether or not FirstNet can sustain this progress and construct a new system that is financially viable within the funding limits provided by Congress. TCPA UPDATE: FCC Allows Cargo Airlines to Notify Customers of Package Deliveries Without Violating Consumer Protections The FCC has granted a request by the Cargo Airlines Association to exempt its proposed free-to-end-user package delivery notifications to consumers’ wireless phones from the Telephone Consumer Protection Act (“TCPA”) constraints on autodialed and prerecorded calls and messages to wireless telephone numbers, as long as consumers are not charged and may easily opt out of future messages . The TCPA was enacted by Congress in 1991 with the objective of protecting consumers from unwanted telephone marketing calls and faxes, which are often considered by consumers to be intrusive and an invasion of their privacy. The law also restricts making calls or sending text messages using automatic telephone dialing systems and prerecorded voice messages (also referred to as “robocalls”) to cell phones and other mobile service devices. The Commission’s action will allow wireless consumers to receive package delivery notifications via their wireless phones with the following stipulations: - A notification must be sent, if at all, only to the telephone number for the package recipient;
- Notifications must identify the name of the delivery company and include the contact information for the delivery company;
- Notifications must not include any telemarketing, solicitation or advertising content;
- Voice call and text message notifications must be concise, generally one minute or less in duration for voice calls and one message of 160 characters in length for text messages;
- Delivery companies shall send only one notification (whether voice call or text message) per package, except that one additional notification may be sent to a consumer for each of the following two attempts to obtain the recipient’s signature when the signatory is not available to sign for the package on the previous delivery attempt;
- 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
- Each notification must include information on how to opt out of future delivery notifications; voice call notifications that could be answered by a live person must include an automated, interactive voice-and/or key press-activated opt-out mechanism that enables the called person to make an opt-out request prior to terminating the call; voice call notifications that could be answered by an answering machine or voice mail service must include a toll-free number that the consumer can call to opt out of future package delivery notifications; text notifications must include the ability for the recipient to opt out by replying “STOP.”
The Commission’s grant of the exemption is limited to package delivery notifications to consumers’ wireless phones either by voice or text, and applies so long as those calls are not charged to the consumer recipient, including not being counted against the consumers’ plan limits on minutes or texts. Our clients that engage in similar delivery notifications should be mindful of the conditions listed above and that any party who sends an autodialed or prerecorded package delivery notice to a wireless number must be in full accordance with these requirements in order to take advantage of the exemption from the TCPA restrictions. FCC Considers Allowing Account Updates and Messages by Autodialer under TCPA On February 12, 2014, Edison Electric Institute (EEI) and American Gas Association (AGA) filed a petition for expedited declaratory ruling requesting the FCC to confirm, under the Telephone Consumer Protection Act (TCPA), that providing a telephone number to an energy utility constitutes “prior express consent” to receive, at that number, non-telemarketing, informational calls related to the customer’s utility service, which are placed using an automatic telephone dialing system (“autodialer”) or an artificial or prerecorded voice . The FCC is accepting comments on the petition through April 10, 2015. According to EEI3 and AGA, their members often need to contact their customers, for example, to: provide notification about planned or unplanned service outages; provide updates about outages or service restoration; ask for confirmation of service restoration or information about the lack of service; provide notification of meter work, tree-trimming, or other field work; or warn about payment or other problems that threaten service curtailment. With regard to such notifications, EEI and AGA state that their members have long used prerecorded message telephone calls and autodialers to reach their customers about service or other related issues. As utility customers increasingly have transitioned to using wireless phones, EEI and AGA note that their members also have transitioned to using new technologies for notifying their customers, including using wireless-only technologies, such as text messaging. Thus, according to EEI and AGA, its member utilities use automated texting technologies to notify customers who have provided wireless numbers with information on service or other related issues. Our clients may be using various methods of notifying customers about account status and other issues for which they could not reach the customer via a live operator call. Our clients will want to size up whether their practices clearly comply with the TCPA, and if it is not clear they will want to seek clarification from the FCC. Motorola Seeks Waiver of Public Coast Power Limits for Columbia County, NY Motorola, on behalf of Columbia County, New York, is seeking a waiver of Rule Section 80.123(e) in order to permit the operation of mobile units with 50 watts transmitter power output (TPO) and 50 watts effective radiated power (ERP) on VHF Public Coast frequencies. Comments on this waiver request are due April 22, 2015 and Reply Comments are due May 8, 2015. At the time Motorola first acquired this spectrum, the FCC waived its rules in order to allow Motorola to provide service to third parties, provided this service would satisfy public safety and other first responder needs. Later, the FCC amended its rules to allow VHF Public Coast licensees to provide service to units on land, provided that certain conditions were met — including (a) the use of equipment that complied with the technical limitations for Part 80 and (b) priority being given to marine communications. Motorola now seeks to assign a portion of its VHF Public Coast spectrum to Columbia County, New York in order to support its land mobile public safety and homeland security operations. Motorola and the County have determined that a higher output power will be required and that this higher TPO will not cause harmful interference to maritime communications or otherwise adversely affect the priority of marine communications provided by co-channel licensees in geographic areas that will not be assigned to the County. In this regard, Motorola states that the County’s mobile units will utilize antennas with limited antenna gain and some line loss and that it believes that the potential for harmful interference would not be increased any more than it would for mobile units operating with the allowable 3 dB antenna gain. Further, Motorola notes that the +5dB contour for the County’s operations would not extend to or overlap major navigable water ways. Montgomery County Challenges FCC’s Tower Siting Order Montgomery County, Maryland has challenged the FCC’s October 21, 2014 Report and Order which imposed new rules on tower siting pursuant to Section 6409(a) of the Middle Tax Relief and Job Creation Act of 2012. Montgomery County stated that the rules adopted in the Report and Order were “inconsistent with the United States Constitution; an unlawful interpretation of Section 6409(a) and other statutory provisions; arbitrary and capricious and an abuse of discretion; and otherwise contrary to law”. The initial filing by Montgomery County did not provide any details concerning the substance of its claims, although conventional wisdom suggests that the 60-day shot-clock for local jurisdictions to act on tower siting requests is likely to be one of the main issues. The County did request that the Court find the FCC’s action to be unlawful and that the Report and Order be vacated and that the FCC be enjoined from enforcing the rules. Because other appeals may have been filed in this proceeding, the Court that takes jurisdiction over the case will issue a briefing schedule. At that point, Montgomery County and others will be required to make their arguments in detail. The Personal Communications Industry Association (PCIA) has raised concerns about the Montgomery County challenge in a press release, stating: “PCIA is working closely with cities, counties, and municipalities to make the implementation of the FCC’s new wireless facility siting regulations smooth and efficient. The wireless infrastructure industry wants to reduce or eliminate, whenever possible, obstacles to realizing the extraordinary economic and technological potential of wireless broadband. We hope that this lawsuit will not detract from that goal, since PCIA supports the FCC’s rationale behind its Infrastructure Order and its guidelines for implementation.” FCC Grants South Carolina Waiver of Construction Notification Deadline South Carolina requested a waiver of the FCC’s Rules to permit the acceptance of its late-filed interim “substantial service” build out notification with respect to its statewide 700 MHz license. Under the FCC’s Rules, South Carolina was required to certify that it was either providing or prepared to provide substantial service to at least one-third of the population or territory by June 13, 2014, the five-year interim benchmark. On December 12, 2014, South Carolina filed its interim substantial service certification. In its request for waiver, South Carolina explained that it missed the June 13, 2014 filing deadline due to a “misinterpretation” of the rules. In particular, South Carolina stated that it thought that it had been required to construct “base station infrastructure” but had not been able to do so because its conversion to P25 technology was incomplete. Nonetheless, South Carolina stated that it had programmed the six State License pairs into its portable trunked system and that those portable sites were operational prior to June 13, 2014. In granting South Carolina’s waiver request, the FCC noted that the “underlying purpose of the substantial service requirement is to ensure efficient use of state channels including service to ‘rural, remote and insular areas.’” Additionally, Rule Section 90.529(c) states that a licensee will be deemed to be prepared to provide substantial service if it certifies that the radio system has been approved and funded by the deadline — which in this case, was June 13, 2014. As a result, the FCC found that South Carolina met its substantial service obligation because it had programmed the six paired channels into the State’s portable fixed trunked infrastructure and 16 channels into over 42,000 mobile and handheld radios statewide. In taking its action on the South Carolina waiver request, the FCC emphasized that the purpose of the construction notification process is to verify construction and not to terminate authorizations where licensed facilities have been properly constructed on a timely basis. FCC Sets Comment Deadlines for Proposal to Create 800 MHz Interstitial Channels The FCC has established May 11, 2015 as the deadline for Comments and May 26, 2015 as the deadline for Reply Comments on its proposal to create new, full power 12.5 kHz offset channels in the 809-817/854-862 MHz band — also known as the 800 MHz Mid-Band. If adopted, the new rules would create the opportunity for up to 319 additional voice-grade channels for use by Public Safety, Business/Industrial, General Category and high-site SMR licensees. In particular, the FCC is looking for comments on who would be eligible for licensing on these channels, as well as technical licensing requirements for the channels. In making this proposal, the FCC has made it clear that incumbent licensees must be safeguarded from new licensees on the interstitial channels. Currently, the Mid-Band is used by licensees in the public safety and Business /Industrial pools and high-site SMR licensees on an exclusive use basis, with co-channel licensing restricted by distance in order to prevent harmful interference. The FCC believes that by licensing the offset or interstitial channels, licensees could take advantage of advances in technology to improve spectral efficiency. Interstitial Channels
The FCC is proposing to license the 12.5 kHz interstitial channels in the Mid-Band while continuing to license the standard 25 kHz channels within the same band. The FCC believes that it will be able to maintaining 25 kHz channel center frequencies, while licensing full power interstitial channels 12.5 kHz above and below the 25 kHz center frequency. The FCC believes that this would promote greater use of the 800 MHz Mid-Band without imposing greater costs on existing users. The FCC is seeking comment as to whether the creation of interstitial channels will promote efficient use of the 800 MHz Mid-Band channels. Additionally, the FCC is also seeking comment on how the introduction of TETRA technology in the Mid-Band would impact its proposal to create 12.5 kHz interstitial channels. In this regard, the FCC recently amended Part 90 of its rules to permit the certification and use of TETRA equipment in the 800 MHz Mid-Band and ESMR band provided that it met the Adjacent Channel Power limits in the FCC's Rules. Because of the potential for issues arising out of the ongoing 800 MHz rebanding effort, the FCC has proposed to delay any licensing of the interstitial channels in any NPSPAC region where the 800 MHz rebanding is not yet completed. As a result, the FCC would not license these channels until it released a Public Notice announcing the availability of these channels. Currently, the FCC’s Rules prohibit high density ESMR cellularized operations in the 800 MHz Mid-Band in order to prevent the type of interference that resulted in the ongoing 800 MHz rebanding effort. The FCC is asking whether it would be desirable to introduce wideband technologies into the Mid-Band by allowing licensees to aggregate 25 KHz channels in this band. In this regard, UTC claims that broadband operations ( e.g., CDMA) would not increase the potential for harmful interference to narrowband incumbents over the potential for harmful interference that would be created by full power use of the interstitial channels. UTC has also raised a concern that licensing of the 800 MHz interstitial channels in the Mid-Band could create the very same interference that led to the current 800 MHz rebanding effort that is still ongoing almost 13 years after the FCC recognized the problem in 2002. The FCC notes that the underlying cause of much of the interference was the result of high-power, low site systems creating near-far and intermodulation interference — neither of which the FCC believes would be caused by the typical high-site systems that would use the interstitial Mid-Band. Because of concerns, interested parties have requested interference protection criteria. Additionally, LMCC has developed an approved table of “Interstitial 800 MHz Coordination Procedures.” The FCC is asking whether this is sufficient. Eligibility
The FCC’s current rules establish four eligibility pools or categories in the Mid-Band — General Category, Public Safety, Business/Industrial Land Transportation and high-site SMR. Within each category, the FCC has established specific eligibility requirements. The question is whether licensees that are eligible for each of these categories should be eligible for licensing on the 800 MHz Mid-Band Channels or whether the channels should be reserved for public safety use for three years, and then available to critical infrastructure licensees for the following two years before it is opened up to all eligibles. This is similar to the structure that the FCC has adopted for the 800 MHz spectrum that has been released by Sprint following rebanding. The FCC is also asking whether public safety licensees should receive preferential treatment or exclusive access to the 800 MHz Mid-Band interstitial channels since the Middle Class Tax Relief and Job Creation Act of 2012 requires public safety licensees to relocate from the UHF T-Band (470-512 MHz). More specifically, the FCC asks whether incumbent public safety T-Band licensees should be afforded preferential or exclusive access to the interstitial channels within their geographic area. Authorized Bandwidth/Emission Mask
The FCC is proposing to maintain the current authorized 22 kHz bandwidth on the standard 25 kHz Mid-Band channels while establishing an authorized bandwidth of 11.25 kHz on the 12.5 kHz interstitial channels. The FCC is seeking comment on this proposal. The FCC is proposing to require licensees on the 800 MHz Mid-Band interstitial channels to use Emission Mask “D” — which is the same emission mask used on interstitial channels in other Part 90 frequency bands. The Emission Mask “D” was designed to allow licensees operating on 12.5 kHz bandwidth channels to employ various modulation techniques while offering interference protection to licensees operation on the adjacent 25 kHz channels. The FCC is seeking comment on whether Emission Mask “D” would provide sufficient protection to limit the potential for harmful interference to licensees operating on the adjacent 25 kHz wideband channels. Comments are due May 11, 2015 ; Reply Comments are due May 26, 2015 . | 
David George and Bill Noyes
