BloostonLaw Telecom Update Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP [Selected portions reproduced here with the firm's permission.] www.bloostonlaw.com | Vol. 11, No. 21 | May 28, 2008 |
Martin Schedules AWS-III Band Service Rules Item For June 12 Open Meeting FCC Chairman Kevin Martin has announced that the Commission’s June 12 open meeting will include an item on service rules for Advanced Wireless Services or AWS-III spectrum in the 2155-2180 MHz band. As Martin stated last April, he is now announcing topics for open meetings three weeks in advance, but such announcements do not affect the one-week “Sunshine period” or lobbying prohibition prior to the meeting. Our rural telco and small business clients will want to consider participating in comments advocating fair auction rules for rural communities, including (1) small licensing areas, and (2) reasonable build-out requirements for sparsely populated areas. Specifically, the AWS item will include an Order on Reconsideration that would address Petitions for Reconsideration of a Commission Order that addressed Applications and Forbearance Petitions to One of the AWS Bands, and a Further Notice of Proposed Rulemaking (FNPRM) that would Seek Further Comment Regarding Service Rules for the AWS Spectrum. Adoption of the item would essentially set the stage for another AWS auction. According to RCR and other press reports, the FCC may require the winning bidder(s) to offer free broadband service under an aggressive build-out schedule. During a press briefing, Martin told RCR that a licensee of the 2155-2180 MHz spectrum would have to provide a free service tier, and would have to reach 50% of the population in four years and 95% of the population by the end of the license term (a difficult burden for most rural areas). Martin also said the agency will initiate a separate rulemaking on what to do with other AWS frequencies in the 1.9-2.1 GHz band. The FCC’s September 2007 Notice of Proposed Rulemaking sought comments on the 2155-2175 MHz band. In that NPRM, the FCC noted that the 2155-2175 MHz band is currently occupied by over 1,800 active, incumbent Fixed Service (FS) and Broadband Radio Service (BRS) licenses, which are subject to relocation by AWS entrants (BloostonLaw Telecom Update, September 26, 2007). This spectrum consists of a single, unpaired, 20-megahertz block, rather than two, separate paired blocks. Therefore, a symmetrical pairing approach – in which one block is used for base station transmissions and another, equal-sized block is used for mobile handset transmissions – cannot be adopted in the rules for this spectrum. Apparently, though, the Commission has added an extra 5 MHz in the order it plans to consider on June 12. In any event, this proposal will directly affect our clients holding BRS, formerly MMDS, and microwave spectrum licenses. Although the AWS-III item is scheduled for the June 12 meeting, Martin acknowledged that the measure could be approved before that date. As RCR noted, it is unclear whether the FCC would hold the AWS III auction later this year, and if that auction will affect the agency’s plans to re-auction the 700 MHz D Block (BloostonLaw Telecom Update, May 21). The free broadband service tier in the AWS-III item is not dissimilar to the free wireless broadband access proposal first advocated by M2Z Networks in its application for an exclusive, 15-year, nationwide license for this spectrum (BloostonLaw Telecom Update, March 14, 2007). M2Z had proposed that the spectrum be licensed to it free of charge, with a portion of its receipts from services being paid to the U.S. Treasury. The FCC dismissed M2Z’s application on the ground that it was not offering a “new” service or technology, and the company subsequently challenged the FCC’s ruling in the U.S. Court of Appeals for the District of Columbia Circuit (BloostonLaw Telecom Update, September 19, 2007). That case is pending. In a related matter, U.S. Reps. Anna Eshoo (D-Calif.), Christopher Cannon (R-Utah), and Ed Markey (D-Mass.) are sponsoring Wireless Internet Nationwide for Families Act (H.R. 5846) to spur deployment of a national, family-friendly wireless broadband network with open access. Their bill envisions one auction of airwaves in the 2155- 2180 MHz band and another auction involving yet-to-be determined spectrum below 3 GHz. Skype petition: Also scheduled for action at the June 12 meeting is the expected dismissal of Skype Communications S.A.R.L.’s petition to mandate an open access rule for all mobile-phone and other commercial wireless spectrum. More specifically, the Commission would consider an Order that would address Skype’s Petition to Confirm a Consumer’s Right to Use Internet Communications Software and Attach Devices to Wireless Networks (BloostonLaw Telecom Update, February 28, 2007). Skype had asked the FCC to create “an industry-led mechanism” to ensure the openness of wireless networks. In a February 2007 petition, Skype asked the Commission to subject the wireless industry to the Carterfone rules, which would allow consumers to use devices and software of their choice on mobile phone networks. The Carterfone rules, which were enacted in 1968 during the old Bell System monopoly era, allow consumers to hook any device up to the landline phone network, so long as it does not harm the network. Prior to the Carterfone decision, AT&T provided all telephones and devices connected to the public switched telephone network (PSTN), and it routinely sued companies that sold unauthorized products that could be attached to the network. The Carterfone itself was an acoustic coupler for land mobile radios. Invented by Tom Carter, it was used to allow radio-equipped oil field drill rigs to patch calls into the telephone network. Arguably, the Carterfone decision helped spur new innovations, such as the fax machine and Internet modem. In more recent times, the Carterfone principle has been extended to other communication networks, such as cable modem and digital subscriber line (DSL). But, as the Skype argument goes, the principle has not been applied to wireless networks. As a result, Skype said, that market has evolved into one that is heavily controlled by wireless carriers. They dictate which phones are used on their networks, what content users can access, and which applications can run on wireless phones. Some carriers have even included specific terms in their service contracts that prevent customers from downloading and using software from Skype on their networks. Thus, Skype's motivations for filing the petition were clear. The company had created software that allows people to make free phone calls across the Internet. And so it wanted users who access the Internet via a mobile device to be able to use their software and services, too. As a result, Skype requested that the Commission issue a declaratory ruling that Carterfone applies to the wireless industry, launch a rulemaking proceeding, and enforce the Carterfone rules as they would apply to wireless. But during his keynote address at last April’s CTIA-The Wireless Association show in Las Vegas, Martin observed that the wireless industry had begun to recognize the benefits of “open access” and more open platforms. Because of this, Martin said he would circulate an order dismissing the Skype petition (BloostonLaw Telecom Update, April 9). This appears to be that order. OTHER AGENDA ITEMS Other agenda items that Martin has scheduled for the June 12 open meeting include the following: DTV: An Order on Clarification with respect to Petitions for Reconsideration of Clarification of the Third Periodic Review of the Commission’s Rules and Policies Affecting the Conversion to Digital Television; National Do-Not-Call Registry: A Report and Order Addressing the Commission’s Rules under the Telephone Consumer Protection Act Concerning the National Do-Not-Call Registry. Telecommunications Relay Service (TRS): A Notice of Proposed Rulemaking Concerning the Provision of Speech-to-Speech, a form of TRS. A Report and Order and Further Notice of Proposed Rulemaking Concerning a Ten-Digit Numbering Plan for Internet-Based TRS. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast. AUGUST 1: FCC FORM 502, NUMBER UTILIZATION REPORT. Any wireless or wireline carrier that has been assigned an NXX code (10,000 numbers) or one or more 1,000 number blocks; and any wireless or wireline carrier that has received from the North American Numbering Plan Administrator (NANPA) or from another carrier one or more 1,000 number blocks must file Form 502. Such carriers should apply for an Operating Company Number (OCN) from NANPA if they do not already have one. Make sure you send your data to Gerry Duffy at BloostonLaw. FCC Meetings and Deadlines May 29 – Deadline for reply comments on AT&T’s request to review USAC audit finding regarding Form 497 (WC Docket No. 03-109). May 30 – Deadline for reply comments on FNPRM proposing to eliminate “30 Market Rule” for BAS transition before 2 GHz MSS operations can begin (WT Docket No. 02-55). May 30 – Effective date of revised DTV consumer education rules. May 30 – Deadline for comments on homeowner association antenna restrictions (CSR-7861-O, CSR-7862-O). May 30 – Deadline for comments on assessment and collection of FY 2008 regulatory fees (MD Docket No. 08-65). May 31 – FCC Form 395, Employment Report, is due. June 2 – Deadline for reply comments on petitions for reconsideration of order denying HAC waiver requests (WT Docket No. 01-139). June 2 – Deadline for upfront payments for closed Auction No. 77 (cellular service to two unserved areas). June 2 – Deadline for reply comments on USF reform NPRMs—Joint Board, Identical Support Rule, and Reverse Auctions NPRMs (WC Docket No. 05-337). Extended from May 19. June 4 – Deadline for comments on Progeny’s request for waiver of M-LMS construction rule (WT Docket No. 08-60). June 6 – Deadline for reply comments on EEOC forms (FCC Forms 395-A and B) (MM Docket No. 98-204). June 6 – Deadline for reply comments on assessment and collection of FY 2008 regulatory fees (MD Docket No. 08-65). June 9 – Deadline for reply comments on VTel petition for declaratory ruling regarding interconnection rights for LECs, VoIP providers (WC Docket No. 08-56). June 10 – Auction Seminar, Auction 78 (unsold AWS-1, broadband PCS licenses). June 10 – Short-form application filing window opens for Auction 78 (unsold AWS-1, broadband PCS licenses). June 11 – Deadline for reply comments on broadcast localism NPRM (MB Docket No. 04-2333). June 12 – FCC open meeting. June 16 – Deadline for ILECs filing annual access tariffs on 15 days’ notice (carriers proposing to increase any of their rates). June 17 – Auction No. 77, closed auction of licenses to provide cellular service in two different unserved areas, is scheduled to begin. June 19 – Deadline for reply comments on Progeny’s request for waiver of M-LMS construction rule (WT Docket No. 08-60). June 19 – Short-form application filing deadline for Auction 78 (unsold AWS-1, broadband PCS licenses). | 
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