 BloostonLaw Telecom Update Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP [Reproduced here with the firm's permission.] www.bloostonlaw.com |
| Vol. 14, No. 38 | October 19, 2011 |
New CMRS Data-Roaming Requirements Now In Effect On October 13, the FCC’s order took effect requiring facilities-based providers of commercial mobile data services (CMRS) to offer data roaming arrangements to other such providers on commercially reasonable terms and conditions, subject to certain limitations(BloostonLaw Telecom Update, April 13). The information collection requirements pertaining to the new CMRS data roaming rules have been approved by the Office of Management and Budget (OMB). The rules provide for a new complaint mechanism for resolving data roaming disputes with CMRS providers, regarding both voice and data roaming. The Commission said that some roaming disputes will involve both data and voice and are likely to have factual issues common to both types of roaming. This approach allows a party to bring a single proceeding to address such a dispute, rather than having to bifurcate the matter and initiate two separate proceedings under two different sets of procedures. This, in turn, will be more efficient for the parties involved, as well as for the Commission, and should result in faster resolution of such disputes, according to the FCC. The FCC’s order provides some relief to small and rural carriers that have encountered certain larger carriers taking the position that data is not included in FCC-mandated roaming obligations. The problems created by such position will only be exacerbated by the proposed merger of T- Mobile into AT&T, which will remove one of the last sources of competitive pressure on nation-wide carriers when it comes to roaming rates. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast. |
 INSIDE THIS ISSUE - Rural associations provide update on USF/ICC order set for Oct. 27 meeting.
- Senate USF/ICC hearing draws rural response.
- FCC notice regarding data requests in AT&T/T-Mobile district court proceeding.
- New electronic tariff filing rules take effect Nov. 17.
- High court to hear cases on indecency standards, GPS monitoring.
|
Rural Associations Provide Update On USF/ICC Order Set For Oct. 27 Vote The National Telecommunications Cooperative Association (NTCA), the Organization for the Promotion and Advancement of Small Telephone Companies (OPASTCO), and the Western Telecommunications Alliance (WTA) have issued a joint association member alert regarding the forthcoming FCC order on Universal Service Fund (USF) and intercarrier compensation (ICC) reform. These organizations are urging their members to contact their Senators and Representatives in a last push to obtain reforms that will promote broadband deployment in rural America before the “Sunshine” period (restricting further communications to the FCC) begins this Friday, October 21. According to the associations, the FCC may only address short-term "fixes"—mostly in the form of new constraints on the legacy USF mechanisms that affect rural telecom companies, at its October 27 open meeting. They added that it also appears that the FCC may adopt ICC reforms that present concerns for rural companies who are trying to provide quality service in high-cost areas without increasing the burden on rural consumers. The full text of the joint association member alert can be obtained from the associations. However, some of the key provisions the associations anticipate could be in the order and suggested arguments in connection with such provisions follow. 1. New caps on supported capital investment and operating expenses . The FCC is strongly considering the adoption of a rule to cap all capital and operating expenses based on regression analyses, the specifics of which, apparently, will be adopted later. The associations argue, rightly, that putting such a rule into effect before the caps can be reviewed, debated and refined will only chill new investment. Moreover, the associations suggest that the caps might be retroactively applied, rather than just applying them to new investments made after the rule takes effect, which would be extremely harmful to carriers that have already made significant investments in broadband. The associations are asking for more debate and discussion of any such rule before it is adopted. 2. $30 Local Service Benchmark . The RLEC Plan proposed a $25 benchmark, with a modest increase in residential subscriber line charges (SLCs) per year, for ICC reform because rural telcos have fewer customers in their calling areas and to avoid shock to customer rates. The associations contended this would provide an appropriate balance between states that had undertaken reform and those who had not yet done so. It appears the FCC is considering a $30 benchmark for residential rates, and extending SLC charges to other customers. The associations are concerned that this will undermine the stability needed during the ICC transition and harm consumers—even in some states that have already reformed their rates. In addition to the associations' concerns, there may also be a question as to whether rates will be comparable for rural consumers, as required by the Act. 3. ICC Restructure Mechanism . The Consensus Framework and RLEC Plan called for a compensatory restructure mechanism consistent with rate-of-return principles. It appears that the FCC may be considering changes to the associations’ proposed methodology that could undermine carrier replacement of ICC revenues over the long-term. 4. Funding Where There is Some Unsubsidized Competition . It appears that the FCC may limit funding in certain areas where an unsubsidized provider, including a mobile provider, can offer voice and a minimum level ( e.g. , 4/1) broadband service throughout the entirety of a telco serving area. According to the associations, even if it seems highly unlikely today that a mobile wireless provider would offer such services throughout the entirety of most study areas, this sets poor precedent. It also appears questionable since the FCC is likely to give additional funding to mobility providers in a special fund, and yet rural telco funding could get cut due to the presence of a mobile wireless provider throughout telco study areas. In addition to the concerns raised by the associations, we also believe this raises questions about the FCC's commitment to abide by the Act and ensure comparable, quality services to rural consumers. The associations conclude that the order may only "implement a handful of near-term constraints to legacy mechanisms" ( i.e. reduce universal service and intercarrier compensation revenues) rather than set the stage for "a long-term transformation of USF and ICC in a way that best serves rural consumers." The associations state that they will continue to seek specific improvements to proposals such as those noted above, and a long-term vision for USF and ICC reform. The window to influence this debate is rapidly closing. If you wish to add your voice at the FCC or through your congressional representatives, we are available to provide assistance in this effort. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. Senate USF/ICC Hearing Draws Rural Response Bloomfield Testifies on Behalf of Associations The Senate Commerce Committee last week conducted a hearing on Universal Service Fund (USF) and intercarrier compensation (ICC) reform. Committee Chairman Jay Rockefeller (D-W.Va.) said that the universal service system has been broken for a long time. He said: “For too long, our universal service system has focused on the communications challenges of the last century. We need to refocus it on the challenges of our modern age. Broadband is not just a technology. It is a platform for opportunity. It is the essential infrastructure of our day. It is how we will grow our economy, expand businesses, foster innovation, increase access to education, improve health care, and even transform entertainment. There is no doubt about it. Having widespread access to high-speed service is what this country requires to compete internationally. And if we get this right, we can close the digital divide in rural America. And we can provide the broadband and wireless access that is essential for every community to have a fair shot at prosperity in the 21st century.” Testifying on behalf of the National Telecommunications Cooperative Association (NTCA), the Organization for the Promotion of Small Telephone Companies (OPAST-CO), and the Western Telecommunications Alliance (WTA), NTCA CEO Shirley Bloomfield pointed out that “all broadband networks, whether wireless or wired, ultimately rely upon the wired network. And we know that wired networks provide the capacity to support the type of applications that this nation critically needs: telehealth, distance learning, civic participation, and interstate and global commerce.” Bloomfield noted that a New Mexico State University study concluded that in 2012, USF reductions (based on early 2011 FCC estimates), “could lead to a total employment loss of 335 jobs, with more than 260 of those jobs being outside the telecommunications industry. In that first year alone, New Mexico personal income would be reduced by $14.1 million; over ten years, personal income in the state would decline $200.3 million, leading to a loss in State tax revenue of $13.6 million.” Bloomfield also stated that “Oklahoma City University predicts 3,000 lost jobs over five years, with lost wages of $123 million. The news from Kansas is no better: Wichita State University estimates that USF reductions proposed by the FCC in its February 2011 Notice of Proposed Rulemaking (NPRM) would cost rural Kansas 367 jobs and $51 million in wages over a five year period. These results are not limited to the telecommunications sector, but instead extend to firms that do business with the carriers and their employees.” Further, Bloomfield said that a “study being released by the Hudson Institute indicates that rural telecommunications companies across the country contributed a collective $14.5 billion to the economies of the states in which they operated in 2009. Of this amount, $10.3 billion was through the carriers’ own operations, while $4.2 billion arose out of the follow-on impact of their operations. Notably, the study also finds that of that $14.5 billion total, two-thirds — or $9.57 billion — accrues to the benefit of urban areas. We speak of universal service; let's talk about a universal economy. The rural telecommunications sector supported 70,700 jobs in 2009, both through its own employment and also through the employment that its purchases of goods and services generated.” Bloomfield noted that the “High-cost USF is a program that enables providers to deploy and operate advanced networks in places where low customer density and vast distances would deter even the most optimistic business cases. The availability of these networks, the investment in them, and the operation of them generates substantial economic activity to the extent described above. But the high-cost USF program does so much more as well. It is a service-quality program, requiring rate-of-return-regulated carriers to show how they are making good use of valuable USF resources to invest in and operate these essential networks for the benefit of their consumers. Indeed, small carriers have used the existing USF program to invest efficiently in advanced networks, increasing broadband service penetration to 92% of consumers using the FCC’s current definition of broadband. This has occurred over the past 5 years with only a small 3% compound annual growth rate in high-cost USF support. It is also an adoption program – high-cost USF helps to keep rates reasonably comparable with urban areas in places where the costs of providing service would yield otherwise unaffordable prices.” Further, Bloomfield said: “If USF support were to decline, or disappear altogether, two scenarios would almost certainly result. In one, companies would raise prices and rural users would pay substantially more for communications service. In the other, companies would cut investment and the networks would shrink, deteriorate, and possibly disappear over time. Both outcomes would be inconsistent with our long-standing national statutory universal service policy demanding that all Americans receive access to affordable advanced communications services that are comparable in price and quality.” Bloomfield ended her remarks by asking the FCC to give serious consideration to the rural local exchange carrier (RLEC) plan that the associations have proposed. Kathleen Abernathy , Chief Legal Officer and Executive Vice President of Regulatory Affairs at Frontier Communications, and a former FCC Commissioner, advocated for the ABC Plan. She said, “the ABC Plan, in conjunction with the reform proposal for rate-of-return providers offered by the rural local exchange carrier associations NTCA, OPASTCO and WTA, provides a consensus framework for key areas of universal service and inter-carrier compensation reform.” She urged that the FCC accept the ABC Plan along with the rate-of-return proposal, which “provides a framework for comprehensive reform of the existing systems while observing the key principles laid out by FCC Chairman [Julius] Genachowski and providing significant benefits to consumers. It is a carefully negotiated proposal among the carriers with the most history and involvement in universal service and intercarrier compensation. We urge the FCC to take momentous action later this month by implementing as closely as possible, our comprehensive proposal.” Mary Dillon , President and CEO of U.S. Cellular said: “It is critically important that the timing of a phase-out of existing support coincides with the phase-in of new mechanisms. First, if support to wireless carriers is reduced without a replacement mechanism, cell sites built in remote areas will be immediately at risk, especially those where revenues are not covering cell site operating costs. Second, it is counterproductive to rapidly reduce funding to rural areas that still require significant capital investment to be brought up to par with urban areas. Third, as a part of how we are accountable for the funds we receive, we have submitted build plans to many states, the accomplishment of which depend on high-cost support. Cutting funding will undermine the regulatory promises we have made to state commissions and deny many communities the benefit of new cell sites that we have committed to deliver.” Former FCC Chairman Michael Powell , now President and CEO of the National Cable & Telecommunications Association (NCTA), testified that the FCC should ensure that “carriers are able to collect and pay for Voice over Internet Protocol (VoIP) calls under the same rules that apply to traditional circuit-switched calls.” He also wants to cap USF high-cost support at $4.5 billion per year, and he supports reverse auctions. Phillip Jones, a Commissioner at the Washington Utilities and Transportation Commission, gave the “state view.” He said that “any approach that allows the FCC exclusive jurisdiction over VoIP services is short-sighted and will likely only provide yet another arbitrage opportunity. Moreover, long-term, such an approach could well jeopardize the funding streams for the more than 20 states that have adopted state-specific USF programs, as well as state authority over emergency calling and outage restoration.” BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. FCC Notice Regarding Data Requests In AT&T/T-Mobile District Court Proceeding The FCC has issued a Public Notice to inform carriers of the pending civil action and the required exchange of information subject to the U.S. District Court for the District of Columbia’s protective order regarding the proposed AT&T/T-Mobile merger to allow carriers the opportunity to contact the Court if they have concerns regarding the exchange of the Numbering Resource Utilization and Forecast (NRUF) reports filed by wireless telecommunications carriers and disaggregated, carrier-specific local number portability (LNP) data related to wireless telecommunications carriers. Note that comments or objections should not be filed with the Commission. The Court has ruled that all parties to the AT&T/T-Mobile court proceeding must exchange information, including filings with the FCC. The Court’s protective order applies to Numbering Resource Utilization and Forecast (NRUF) reports filed by wireless telecommunications carriers and disaggregated, carrier-specific local number portability (LNP) data related to wireless telecommunications carriers. Background: On April 28, 2011, and June 3, 2011, subject to a protective order, the Commission placed into the record in WT Docket No. 11-65 (Applications of AT&T Inc. and Deutsche Telekom AG For Consent To Assign or Transfer Control of Licenses and Authorizations) various Numbering Resource Utilization and Forecast (NRUF) reports filed by wireless telecommunications carriers and disaggregated, carrier-specific local number portability (LNP) data related to wireless telecommunications carriers. Pursuant to the protective order, outside persons participating or intending to participate in Docket No. 11-65 who are not involved in competitive decision-making activities and who have signed the Acknowledgment of Confidentiality attached to the protective order may review and use the NRUF and LNP data “solely for the preparation and conduct of [WT Docket No. 11-65] before the Commission.” The protective order further provides that if a Court, among others, orders the production of NRUF or LNP data or information derived from NRUF and LNP data that a person has received pursuant to the protective order, the person receiving such an order must notify all affected parties and the Commission, such that “the Commission and each affected wireless telecommunications carrier has a full opportunity to oppose such production prior to the production or disclosure of any NRUF/LNP Confidential Information.” According to the FCC, such a situation has arisen here. On August 31, 2011, the Justice Department filed a complaint that the merger of AT&T Inc. and T-Mobile USA, Inc. (the action underlying the license transfer applications in WT Docket No. 11-65) would violate the antitrust laws and seeking a permanent injunction against the merger. Seven states (New York, Washington, California, Illinois, Massachusetts, Ohio and Pennsylvania) and Puerto Rico have joined the action as plaintiffs. On September 23, the Court ordered that the parties produce to each other all information exchanged with third parties, including filings made with the Federal Communications Commission. This includes both NRUF and LNP data and information derived from NRUF and LNP data. Prior to this order, the Court on September 15, 2011, adopted a protective order protecting confidential information that may be produced or filed in the case and limiting disclosure to outside counsel and experts. The Court’s protective order also provides that a non-party whose confidential information is subject to the protective order has ten days from receipt of the order to seek additional relief if it believes the protective order does not adequately protect its confidential information. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast. NEW ELECTRONIC TARIFF FILING RULES TAKE EFFECT NOVEMBER 17: The FCC’s Wireline Competition Bureau has announced that the Office of Management and Budget (OMB) have approved the information collection associated with the Commission’s Electronic Tariff Filing System Report and Order (ETFS Order). The ETFS Order revises the Commission’s rules to enable all tariffs to be filed electronically, and those rule revisions become effective on November 17, 2011. As required by the ETFS Order, all tariff filers must use the Electronic Tariff Filing System (ETFS) to file their initial Base Document within sixty (60) days after the rules become effective. Accordingly, tariff filers should file their initial Base Document and/or Informational Tariff using the ETFS between November, 17, 2011 and January 17, 2012. We encourage tariff filers to plan appropriately and not wait until the last day of the 60-day period to ensure that the ETFS will be able to accept their filing. In filing their initial Base Document and/or Informational Tariff, carriers should file electronically the exact tariff that is effective with the Commission at that time. These initial documents must be filed in Adobe Acrobat’s Portable Document Format (PDF) and should include a cover letter that concisely explains the nature and purpose of the filing. No transmittal number or filing fee is required for this initial filing. To file the initial Base Document and/or Informational Tariff during the initial 60-day filing period, carriers will need their FCC Registration Number (FRN) and FRN password. The FRN and FRN password will be used by the ETFS system to generate a specific ETFS ID. After the initial 60-day filing period, new carriers filing on the ETFS must establish a new account and the Commission will assign the required ETFS ID. Except for Operator Service Providers (OSPs), once the initial Base Document is filed all subsequent tariff revisions to this document must be filed on the ETFS and such filings must comply with the revised Part 61 rules. OSPs must file their revised Informational Tariffs on the ETFS in accordance with Section 64.709 of the Commission’s rules and Section 226(h)(1) of the Act. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. HIGH COURT TO HEAR CASES ON INDECENCY STANDARDS, GPS MONITORING: During the current term, the U.S. Supreme Court is expected to hear FCC v. Fox Television Stations Inc. regarding whether the FCC’s standards for indecency on television are too vague to meet constitutional standards. In this case, the FCC is defending its authority to police the airwaves during the times when children are most likely to be watching. The broadcast networks are challenging the FCC’s rules as unconstitutionally vague and outdated when cable television and the Internet are unregulated. The case involves FCC fines for network shows in which celebrities used profanities at award shows and the old television drama “NYPD Blue,” which showed a woman’s bare buttocks. The 2nd U.S. Circuit Court of Appeals in New York had ruled against the FCC, saying its rules showed “little rhyme or reason.” The FCC claims it should be allowed to keep the broadcast channels as a “safe haven” for families. Changing technology is at the heart of another case that weighs government’s power to track suspects against an individual’s right to privacy. The question is whether the government has the right to place a Global Positioning System (GPS) device on the vehicle of a suspected drug dealer without a judge’s approval. The Justice Department points to a Supreme Court ruling to say citizens have no reasonable expectation of privacy as they travel along public streets and highways. But the U.S. Court of Appeals for the District of Columbia Circuit disagreed. It said 24/7 monitoring of a person’s whereabouts for an extended period requires a warrant. Other courts of appeal answered the question differently. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast. COMMENT DATES SET FOR USAC PROPOSAL FOR DISBURSING USF LOW INCOME SUPPORT TO ETCs: The FCC has set comment dates for the Universal Service Administrative Company’s proposal for disbursing Universal Service Fund (USF) low income support to eligible telecommunications carriers (ETCs) based upon claims for reimbursement of actual support payments made, instead of projected claims for support (BloostonLaw Telecom Update, September 28). Payment based on actual support payments would replace the current administrative process, under which USAC reimburses ETCs for low income support each month based on USAC's projection of payments and on a “true-up”' calculated using an ETC's actual support payments. Among other things, the FCC is seeking comment on a proposal that would require that the FCC Form 497 be filed monthly. Comments on this WC Docket Nos. 03-109 and 11-42 Public Notice are due November 18, and replies are due December 5. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. FCC FINDS MSG, CABLEVISION IN VIOLATION OF RULES FOR WITHHOLDING PROGRAMMING: The FCC’s Media Bureau has issued an Order finding that MSG Holdings, L.P. (formerly Madison Square Garden, L.P.) and Cablevision Systems Corporation violated the Communications Act and the Commission’s rules by withholding the high definition (HD) versions of the MSG and MSG+ Regional Sports Networks (RSNs) from AT&T Services, Inc. and Southern New England Telephone Company d/b/a AT&T Connecticut in the state of Connecticut. Separately, the Media Bureau also found MSG and Cablevision in violation of the Act and the rules for withholding the same programming from Verizon in the New York and Buffalo Designated Market Areas (DMAs). The Orders require MSG to enter into an agreement to license such programming to AT&T, and separately to Verizon, by October 22. On September 28, the defendants filed with the Commission Petitions for Stay and Applications for Review of the Orders. In particular, Defendants assert in their Petition that they will suffer irreparable harm from having to deliver their RSN programming to AT&T, and separately to Verizon, under the Orders. The FCC retained the agreement deadline but stayed the Orders to the extent it would otherwise require MSG to make the programming available to AT&T and Verizon on or before November 14. The FCC took this action on its own motion to provide the Commission an opportunity to consider the defendants’ Petition and Application for Review. BloostonLaw contact: Gerry Duffy. FCC SEEKS INFORMATION REGARDING POTENTIAL VENDORS FOR LNP DATABASE PLATFORMS: The FCC’s Wireline Competition Bureau (WCB) has issued a Request for Information (RFI) to obtain information, request input, and allow potential vendors to pre-qualify to bid for the contract that will develop and manage local number portability (LNP) database platforms and services in the United States beginning in 2015. The North American Portability Management LLC’s (NAPM LLC) Future of Number Portability Administration Center Subcommittee (FoNPAC), in consultation with the North American Numbering Council (NANC), is developing a Request for Proposals (RFP) for local number portability database platforms and services in the seven United States NPAC regions. In preparation for the RFP, the NAPM LLC, in consultation with the NANC, has issued an RFI to obtain information, request input, and allow potential vendors to pre-qualify to bid for the contract. The RFP is scheduled to be issued in 2012, with vendor selection, contract execution, platform testing, and system deployment to be completed prior to system launch in June 2015. The RFP will provide the specifications and terms for the development of a next-generation Number Portability Administration Center/Service Management System (NPAC/SMS). The NPAC/SMS consists of hardware and software platform(s) that host a national information database and serves as the central coordination point of LNP activity. Currently, Neustar, Inc. is responsible for maintaining, administering, and operating the NPAC/SMS, under a contract with the NAPM LLC to perform duties as the LNPA. RFI responses are due on or before November 23. In an unrelated matter, the General Services Administration (GSA) has renewed the charter of the NANC through September 23, 2013. The Council will continue to advise the FCC on numbering issues. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. CTIA, FCC UNVEIL “BILL SHOCK” ALERTS FOR WIRELESS CONSUMERS: CTIA-The Wireless Association has announced new commitments by providers that represent more than 97 percent of wireless consumers in the U.S. to send free alerts to help consumers avoid unexpected overage charges. The joint announcement was made by CTIA President & CEO Steve Largent, FCC Chairman Julius Genachowski, and Consumers Union’s Communications Policy Counsel Paul Desai. The plan – called the “Wireless Consumer Usage Notification Guidelines” – will provide free alerts both before and after subscribers reach monthly limits on voice, data and text. In addition, the plan includes a notification to inform consumers of international roaming charges when traveling abroad. Subscribers will be covered by this plan unless they opt-out. The CTIA “Wireless Consumer Usage Notification Guidelines” will become part of the broader CTIA “Consumer Code for Wireless Service” that provides disclosures and practices for wireless service to individual consumers. By October 17, 2012 participating carriers will provide customers with at least two out of the four notifications for data, voice, text and international roaming and all of the alerts by April 17, 2013. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell. SENATORS INTRODUCE BILL REQUIRING DISCLOSURES ABOUT 4G SERVICE: U.S. Senators Richard Blumenthal (D-Conn.), Amy Klobuchar (D-Minn.), and Al Franken (D-Minn.) have introduced S. 1695, the Next Generation Wireless Disclosure Act, which would require wireless operators to disclose certain information about services they market as “4G” or “fourth generation wireless.” The measure is similar to HR 2281, introduced last June by Rep. Anna Eschoo (D-Calif.). It would require operators to disclose the guaranteed minimum data speed, network reliability, coverage areas, pricing, and network conditions that can impact the speed of their 4G applications and services. It also would require the FCC to evaluate the speed of 4G data services for the top 10 U.S. wireless operators. CTIA-The Wireless Association opposes the legislation. "This bill proposes to add an additional layer of regulation to a new and exciting set of services, while ignoring the fact that wireless is an inherently complex and dynamic environment in which network speeds can vary depending on a wide variety of factors, such as weather, terrain and foliage," CTIA said. Wireless carriers use the term 4G for HSPA+, LTE and WiMAX services. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell. BloostonLaw Private Users Update Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP [Reproduced here with the firm's permission.] www.bloostonlaw.com |
| Vol. 12, No. 10 | October 2011 |
New Jobs Bill Includes
New Spectrum Use Fees Spectrum Fees Would Be Yet Another Tax on Private Radio Licensees
President Obama’s “American Jobs Act” includes proposals for auctioning wireless spectrum and public safety broadband expansion. These proposals stem from the “National Wireless Initiative” (NWI) that the President unveiled in his State of the Union address last January. The NWI essentially calls for expanding wireless broadband to 98% of all Americans within five years. And to achieve that, the administration proposes to have government agencies auction off their spectrum, use spectrum more efficiently, and convince TV broadcasters to engage in “voluntary incentive auctions.” The President expects that this plan will raise $27.8 billion over the next 10 years, including about $10 billion to support expansion of the public safety network, and proceeds to draw down the deficit by $17.8 billion. Unfortunately, the Jobs Bill would also authorize the FCC to assess “spectrum use” fees from new and existing licensees to pay for the initiative. The Bill provides a minimum amount the Commission must collect, starting with $200m total in 2012 and $550m total in 2015 and each year thereafter, until 2021. The legislation provides a list of factors which the Commission may consider in assessing such fees, including the “highest value alternative spectrum use” and the level of demand for the particular license. If passed, the new spectrum fees could quintuple the amount of the fee due with each license renewal application, or worse. Failure to pay these fees may result in revocation of license or permit. Only broadcasters and public safety entities would be exempt from this new fee assessment. We will be assisting clients with efforts to contact their Congressional delegation to oppose the imposition of yet another tax on their licenses. Interested clients should contact us ASAP. BloostonLaw Contact: John Prendergast |
FCC’s NG911 NPRM Explores Texting, Prioritizing Calls At its September 22 open meeting, the FCC adopted a Notice of Proposed Rulemaking (NPRM) to examine ways to modernize the current voice-based 911 system to a Next Generation 911 (NG911) system that will enable the public to send texts, photos, videos, and other data to 911 call centers or Public Safety Answering Points (PSAPs). The NPRM struggles somewhat with certain fundamental questions, such as what role the FCC should play in creating the NG911 system; how will PSAPs be protected from getting too much information; and what standards should govern NG911 devices. While the NPRM has been issued based on a round of public comments in response to a Notice of Inquiry, the FCC decided it did not yet have enough information to draft proposed rules. Therefore, it is likely there will be additional NPRMs in this proceeding. As a result of the East Coast earthquake on August 23, 2011, the FCC said, it is also seeking comment on whether and how to prioritize calls to 911 over other calls during emergencies, which are usually the moments when wireless networks experience the most congestion and calls fail to go through. The Commission said it recognized the need to ensure the availability of reliable voice-based 911 services, while moving forward with a NG911 system that adds text and other information capabilities. Enabling text, photos, and video and data transmissions to PSAPs allows consumers to communicate with 911 in the same way they communicate with others on a daily basis, the FCC said. It added that the capability also enhances public safety by allowing consumers to text 911 when a voice call is difficult or dangerous. NG911 is also particularly beneficial to people with disabilities. The FCC said the text, photo, video, and data capabilities of NG911 will also provide 911 call centers and first responders with enhanced information and improved technological tools that can be synthesized with existing databases. This allows 911 call centers to dispatch the appropriate emergency response more quickly, a difference that can save lives during emergencies. The NPRM examines short-term and long-term options for enabling consumers to send texts to 911, including the advantages and disadvantages of different approaches. The Commission is also seeking comment on long-term development of multimedia NG911 technology that would support delivery of photos, videos, and data to 911, in addition to texting. The Commission will consider the appropriate role for the agency in facilitating – and, if necessary, accelerating – the rollout of these capabilities, and encouraging the parallel development of NG911 capabilities in 911 call centers. The Commission also noted that the transition to NG911 is not likely to occur uniformly across the country and asked for comment on how best to educate the public about the availability, capabilities, and limitations of NG911 as it is deployed. The NPRM provides a procedural history, together with technical background, regarding three broad classes of text-capable communications, namely Short Message Service (SMS), Internet protocol (IP)-based messaging, and Real-Time Text (RTT), comparing their characteristics, strengths, and limitations in supporting emergency communications. The NPRM then examines potential short-term methods for sending text messages to 911. The FCC said it did this because of the widespread availability and increasing use of text in communications systems and because many of the emerging IP-based mechanisms for delivering text also have the capability, with relatively minor technical adjustment, to support delivery of photos, videos, and other data as well. The FCC seeks comment on what role the Commission should play to facilitate – and, if necessary, accelerate – the implementation of text-to-911 capabilities by providers in the short term. Additionally, the NPRM explores the long-term implementation of NG911, with particular focus on IP-based alternatives for delivering text, photos, videos, and other data to 911 that would leverage the increasing percentage of mobile devices that have the ability to access the Internet. The FCC seeks comment on the potential for developing downloadable smartphone applications that both consumers and IP-capable PSAPs could acquire to support capabilities for an early rollout of text and multimedia functionality. The FCC noted that such applications could also provide early access to key NG911 capabilities for mobile callers, especially those persons with hearing and speech disabilities. The Commission said it explored the full range of options for the agency, including both non-regulatory and regulatory approaches, and it seeks to adopt the least burdensome approach that would achieve the desired result. The FCC also recognized that it must carefully assess the costs and benefits of different regulatory options to determine the Commission’s proper role. Also at last week’s open meeting, the Public Safety and Homeland Security Bureau presented a cost study on NG911 network connectivity costs, titled, A Basis for Public Funding Essential to Bringing a Nationwide Next Generation 911 Network to America’s Communications Users and First Responders . The Bureau staff analysis determined that NG911, because of its ability to leverage commercial off-the-shelf technology, has the potential to be more cost-effective to operate and upgrade than the legacy 911 system. The study offers two models for NG911 deployment: a baseline model and a cost-effective model that assumes cost savings from a reduction in the total number of 911 call centers nationwide and a greater percentage of call centers sharing NG911 infrastructure as opposed to operating their own dedicated systems. Based on these assumptions, the baseline model concludes that the network connectivity and call routing costs to transition to NG911 will be approximately $2.68 billion over 10 years. In the cost-effective model, the transition costs are approximately $1.44 billion. However, it should be noted that network connectivity and call routing costs are only part of the costs involved. FCC Chairman Julius Genachowski noted that the Commission is working with the Federal Emergency Management Agency (FEMA), local public safety authorities, and the wireless industry to launch, on an accelerated basis, the Personal Localized Alerting Network (PLAN). In the event of an emergency, PLAN allows government officials to send text-like, targeted alerts to all enabled mobile devices in a geographic area, Genachowski said. In just a few months, he added, PLAN will go live in New York City, and it will launch nationwide in April 2012. Commissioner Michael Copps said: “We’re not trying to identify a silver bullet here. Texting is neither a total response nor a perfect tool. The record so far points out that, unlike phone calls, texts can take precious more time to get to recipients. And, importantly, they lack the automatic location information that accompanies calls to 911 and that is so important is responding to emergencies. ” Commissioner Robert McDowell said that “we must develop a strong record illustrating the costs and technical feasibility of implementing this technology. Accordingly, I approve of this prudent approach to develop the record further before drafting proposed rules.” Comments in this PS Docket Nos. 10-255 and 11-153 proceeding are due December 12, and replies will be due January 10, 2012. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, Cary Mitchell, and Bob Jackson. Modified E911 Rules for Wireless and VoIP Providers Become Effective Nov. 28 The FCC’s recent order modifying the E911 Rules for Wireless and VoIP providers were published in the September 28 Federal Register, and will become effective November 28 . For our private user clients that are public safety entities, this will mean a greater ability to pinpoint the location of an emergency. The FCC retained its current handset- and network-based location-accuracy regime and eight-year implementation period first established in an order last year, which required accuracy to be measured at the county level. After an eight-year period ends in 2019, all carriers will have to meet the handset-based location-accuracy standard. The FCC will decide the sunset date at a later time. New commercial mobile radio service networks will have to meet the more accurate handset-based standards created by the new E911 rules right away. The order also requires wireless carriers to periodically test their E911 location accuracy results and share the results with Public Safety Answering Points (PSAPs), state 911 offices, and the FCC, subject to confidentiality protections. BloostonLaw contacts: Hal Mordkofsky, Cary Mitchell. FCC White Paper Outlines Vision for Deploying DACA The FCC’s Public Safety and Homeland Security Bureau, at the September 22 open meeting, released a comprehensive white paper outlining a vision for how “deployable aerial communications architecture” (DACA) can be used to provide communications following a catastrophic event when the terrestrial communications infrastructure is severely damaged or unavailable. The white paper includes recommendations to the Commission for next steps on how to incorporate this technology into the Nation's communications infrastructure. Titled The Role of Deployable Aerial Communications Architecture in Emergency Communications and Recommended Next Steps, the paper offers an analysis of how DACA could fit into the restoration of communications services in the early hours immediately after a catastrophic event. DACA is deployable 12 to 18 hours after a catastrophic event to restore critical communications, including broadband, temporarily for a period of 72 hours or more. This capability would be useful in situations where the power grid may be inoperable for several days, depleting backup power supplies and resulting in an almost complete failure of landline, cellular, public safety radio, broadcast, and cable transmissions, as well as Wi-Fi and Internet services. Based on its conclusions in the white paper, the Bureau recommended several steps for further Commission action: - Open an inquiry by the end of the year to gather data and address issues such as the role of DACA solutions during catastrophic disasters, radio interference, spectrum coordination, authorization requirements, costs, cost-effectiveness, equipment standards, and operational procedures.
- Host a workshop on DACA solutions by the end of 2011.
- Share findings with the Federal Emergency Management Agency, the Federal Aviation Administration, and other Federal partners to initiate discussions regarding pilot programs and implementation.
- Working with the Department of State and other appropriate Federal agencies, explore any international implications of these issues.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, Cary Mitchell, and Bob Jackson. New Tower Registration Comment Date Extended Until November 2 The FCC has extended the deadline for comments on its Draft Programmatic Environmental Assessment (PEA) of the Antenna Structure Registration Program (ASR EA Program) until November 2. The draft PEA is an outgrowth of the FCC’s proposed interim rules that would impose substantial burdens on antenna tower owners subject to the ASR requirements. In particular, the ASR EA Program considers several different alternatives or options that could potentially impose significant costs and/or regulatory burdens on tower owners that are subject to the FCC’s ASR Rules. In addition to current requirements not related to migratory birds, these include: (a) requiring a 30-day public notice period (and potentially the filing of an environmental assessment (EA)) for all towers that are subject to the FCC’s ASR Rules – irrespective of whether the Federal Aviation Administration (FAA) changes its obstruction lighting in order to eliminate red steady burning lights on antenna towers that are equipped with flashing red lights; (b) requiring the filing of an EA for all new ASR registered towers that are located outside of an antenna farm, regardless of height, use of guy wires or lighting scheme – towers in an antenna farm would require an EA only if it involved a substantial increase in size over existing towers or a change in lighting to steady burning lighting. EAs would also need to consider the effects not only on migratory birds, but also on Bald Eagles and Golden Eagles. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. FCC Tests Spectrum Bridge TV Band Database System For White Space Devices The FCC’s Office of Engineering and Technology (OET) has begun a 45-day public trial of Spectrum Bridge Inc.’s TV band database system. This is a limited trial that is intended principally to allow the public to access and test Spectrum Bridge’s database system to ensure that it correctly identifies channels that are available for unlicensed TV band “White Space” devices, properly registers those facilities entitled to protection, and provides protection to authorized services and registered facilities as specified in the rules. The FCC said it encourages all interested parties to test the database and provide appropriate feedback to Spectrum Bridge. The Commission’s Part 15 rules require that unlicensed TV band devices contact an authorized database system to obtain a list of channels that are available for their operation (i.e., channels not occupied by authorized radio services) at their individual locations and must operate only on those channels. Such devices are required to provide their geographic location, by means of a secure Internet connection, to a TV band database system authorized by the Commission. The database will then return a list of the channels available for operation by the device for its reported location. Parties may participate in the trial by accessing Spectrum Bridge’s TV band database test facility at the following web address: http://whitespaces.spectrumbridge.com/Trial.aspx . This website provides a description of the trial, instructions for participation, details on use of the database system, access to the database’s various capabilities, and a link for providing feedback to Spectrum Bridge. The successful creation of a TV Band database would be another step toward the availability of equipment that can successfully use the TV white space spectrum for low power operations. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. FCC Acts against Illegal Jamming Devices The FCC’s Enforcement Bureau has issued 20 enforcement actions against online retailers in 12 states for illegally marketing more than 200 uniquely-described models of cell phone jammers, Global Positioning Satellite (GPS) jammers, Wi-Fi jammers, and similar signal jamming devices. These devices have the capacity to prevent, block, or otherwise interfere with authorized radio communications in violation of the Communications Act and the Commission’s rules. The FCC said the enforcement actions are intended to warn retailers and potential purchasers that marketing, selling, or using signal jamming devices in the U.S. is illegal and that the FCC will vigorously prosecute these violations. Entities tempted to use jammers to maintain quiet in a theater, restaurant or other location should be aware of the risk of significant fines, and perhaps liability in the event an emergency call is blocked. In the Omnibus Citation and Order, the FCC emphasized that because signal jamming devices work by indiscriminately interrupting or interfering with communications, the use of a jamming device in a classroom, theater, church, restaurant, or other public place could prevent someone in the vicinity of the jammer from making an emergency call to 9-1-1, the police, a fire department, or a family member in trouble. Accordingly, the FCC directed each online retailer to take immediate steps to cease marketing signal jamming devices to consumers in the United States and its territories. Such steps may include removing the illegal signal jamming devices from online display, expressly excluding consumers in the United States as potential customers, and declining to sell signal jamming devices or complete any sales transaction to consumers in the United States. In a Request for Information attached to the Omnibus Citation, the Bureau also ordered the online retailers to provide information about their signal jammer suppliers, distribution channels, and sales—including the manufacturer of each illegal signal jamming device, the websites that the online retailer has used to market the devices in the United States or its territories, and the corrective actions the online retailer has taken or will take to comply with federal law prohibiting the marketing and sale of jamming devices. Because these enforcement actions were taken against retailers who are not otherwise regulated by the Commission, the Communications Act requires the Commission to first issue a “citation” describing the violation and warning against future misconduct. The Omnibus Citation and Order emphasized that a second violation could lead to monetary penalties of $16,000 to $112,500. The Omnibus Citation and Order also noted, for example, that a separate penalty could be imposed for each jamming device sold or each day on which a jamming device is marketed, and that additional violations could result in the seizure of equipment and imprisonment. The signal jamming devices listed in the Omnibus Citation and Order include GPS blockers for vehicles, high-tech signal blockers with remote control capabilities, jammers disguised as paintings and cigarette packs, and other small, easily-concealable cell phone jammers, as well as high-powered industrial jammers that have the potential to disrupt radio signals in areas as large as a football field. In addition, the signal jammers offered by the online retailers claim to target a wide variety of frequencies, services, and technologies. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. LoJack Gets Partial Relief for Stolen Vehicle Tracking The FCC has granted LoJack Corp. a conditional partial waiver of Sections 90.20(e) (6) and 2.106 of the Commission’s rules, which provide for operation of Stolen Vehicle Recovery Systems (SVRS) on frequency 173.075 MHz. In 2008, the Commission amended Section 90.20(e) (6) to permit the tracking of missing persons and individuals at risk using SVRS technology. To enhance the ability of the law enforcement and the public safety community to perform their duties in this context, LoJack sought a partial waiver: (1) for “the ability to activate the frequency [i.e., transmit activation signals on the frequency] using a portable device as opposed to a base station,” and (2) “to allow any Public Safety Pool eligible, not just police entities, to activate the frequency using a portable device.” LoJack also sought to employ a duty cycle of 1000 milliseconds every 8 seconds for activation signals. First, regarding LoJack’s request to allow activation on frequency 173.075 MHz using a portable device, the FCC said its Part 90 Rules do not differentiate between activation signals and response signals, nor does it say that mobiles may transmit only one type of signal. The Commission stated that although the mobile duty cycle portion of Rule Section 90.20(e) (6) appears to associate mobiles with “tracked” vehicles, the rule does not limit mobiles to units in vehicles or units worn by people being tracked. Therefore, on its own motion, the FCC clarified by declaratory ruling that Section 90.20(e) (6) permits mobile or portable units to transmit any type of signal, including activation signals, on frequency 173.075 MHz. Additionally, the FCC said it limits activation signals on portable devices to 5 watts power output, as is the case with any mobile transmission. Given that the Commission does not issue licenses for mobile transmitters, but rather authorizes mobile transmitters by rule, the SVRS rules would not appear to restrict Portable Activation Tracker (PAT) use to the geographic areas or states covered by existing SVRS licenses. Second, regarding LoJack’s request to allow any Public Safety Pool eligible entity, not just police entities, to activate a mobile or portable device on frequency 173.075 MHz, the FCC said that eligible entities in the Public Safety Pool are authorized to operate mobile transmitters on this frequency. LoJack contended that this section allows mobile use of 173.075 MHz by any Public Safety Pool eligible entity without a waiver, but the FCC disagreed and said that a waiver was necessary to permit operation of PATs by non-law enforcement public safety entities. The FCC concluded that grant of a partial waiver is warranted, conditioned on procedures to eliminate interference. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. FCC Issues Large Fine for Failure to Notify FAA of Outage The FCC has issued a $10,000 monetary forfeiture to Taylor Communications, licensee of Station WOXD-FM, in Oxford, Mississippi, and owner of antenna structure number 1038246, for failure to inform the Federal Aviation Administration (FAA) of a malfunction of the antenna structure lighting and its failure to make available a public inspection file. The antenna structure is 328 feet in height above ground level and is required to be painted and lit. Agents from the New Orleans Office observed the antenna structure 90 minutes after sunset and found that none of the red obstruction lights were working. The FCC said it considered Taylor’s response and reduced the forfeiture to $10,000 based on Taylor’s history of compliance and good-faith efforts to comply with the rules. Additionally, the FCC noted that Taylor called the published local number for the FAA about the outage prior to the inspection, but that number was not in service. Taylor also pointed out that, during the inspection, the agent from the New Orleans Office had no local number for the FAA other than the same non-working one. Although Taylor submitted a criminal affidavit against its former station manager, and the former station manager was arrested for embezzlement, the charges were dropped and there was no formal finding of guilt. Moreover, the FCC said, the former station manager submitted an affidavit to the court specifically denying that he “discarded, concealed or otherwise tampered with” Taylor’s public inspection file. Indeed, the former station manager alleged that “following the renovations and cleaning [of the interior of the station in the spring of 2008], the FCC Public Inspection file could not be located.” Whether the public inspection file was lost, misplaced, or stolen, the fact remains that the public inspection file was not available for inspection on September 26, 2008, and the “Commission has long held that licensees and other Commission regulatees are responsible for the acts and omissions of their employees and independent contractors.” Therefore, the FCC found that Taylor willfully failed to make available a public inspection file and found no grounds to cancel or reduce the $10,000 forfeiture associated with this violation based on Taylor’s claim of theft. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. Texas Advised To Re-File For License Modification The FCC has denied a petition by the State of Texas, seeking reconsideration of the Commission’s grant-in-part of Texas’ license for call sign KBF545. Because Texas did not submit the required frequency coordination with its license renewal/modification for call sign KBF545, the FCC denied its petition for reconsideration. However, the FCC said Texas may refile for a license modification with the required frequency coordination. Texas submitted a license renewal/modification for call sign KBF545 on March 14, 2011. By accompanying document, Texas explained: “The coordinates for this location were changed to reflect a more accurate location and to match the ASR of the support structure. This station has not been moved.” On June 2, 2011, the Policy Division of the Public Safety and Homeland Security Bureau granted Texas’ renewal application in part. However, the Division noted that “[m]codifications indicated at location 1 require new frequency coordination.” Texas subsequently sought reconsideration of the Division’s grant-in-part of the license, asking for “a full granted status of this call sign without the need for frequency coordination.” The FCC said the Division did not err when it granted in part Texas’ application for renewal/modification. Section 90.135(b) of the Commission’s rules requires that licensees must submit a Form 601 application for modification to the applicable frequency coordinator for any “[c]hangers in the authorized location … of base stations.” Because a change in the licensed coordinates for Texas’ base station, even to correct an error in the original licensed coordinates, constitutes a change in the base station’s authorized location, the Division correctly determined that Texas’ application with respect to the request for license modification was defective because it lacked the requisite frequency coordination. The FCC recommended that Texas refile for a license modification with the required frequency coordination. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. L.A. County Gets Extension of Construction Deadline Subject to certain conditions, the FCC has granted Los Angeles County, California, an extension of the construction deadline associated with 21 narrowband licenses that are to be integrated into the Los Angeles Regional Interoperable Communications System (LA-RICS) until June 30, 2012. In 1998, the Commission granted the County 21 narrowband UHF licenses for inclusion in the LA-RICS system. At the time of the initial grant, the County requested and was granted a five-year construction period under Section 90.629 of the Commission’s rules, which provides for an extended implementation or “slow growth” period of up to five years to complete system construction where technical or coordination issues necessitate more than the standard one-year construction period. Under the initial extended implementation grant, the County had until 2003 to complete construction and implementation, but the Commission granted two additional extensions based on the County’s representation that the scope of the LA-RICS project had expanded and that the County had encountered planning and funding difficulties. The second of these extensions expired on June 24, 2011. On May 24, 2011, the County filed a request for an additional five-year extension of the construction deadline. On June 24, 2011, the Policy and Licensing Division of the Public Safety and Homeland Security Bureau granted the County’s waiver request in part and extended the County’s construction deadline until October 9, 2011. Noting that the County had held the licenses for nearly 14 years without having completed construction, the Division found that County’s showing in support of an additional five-year extension did not meet the Commission’s waiver standard. However, the Division found a limited extension to be justified based on the County’s representation that it planned to complete negotiations and enter into a contract with a prime vendor by August 2011. The Division therefore granted an extension until October 9, 2011, and stated that if the County chose to seek an extension beyond that date, it would be required to submit the following: - A report on progress made since the receipt of the June 24, 2011 letter;
- Evidence of a signed contract with a vendor to construct the project;
- Evidence that funds for the project are on hand or have been legislatively appropriated; and,
- A more complete and accurate timeline.
On August 30, 2011, the County filed its request for waiver, stating that it was unable to comply with the above conditions because it had not entered into a contract with a prime vendor in August 2011 as previously anticipated. The County states that on July 28, 2011, acting on advice of counsel, the LA-RICS Board of Directors cancelled the existing procurement process and began a new procurement process “to comply more fully with the California Public Contracts Code.” The County represents that the new procurement will be “highly accelerated . . . , with the goal of having a new contract finalized for LA-RICS Board approval no later than January 2012.” In light of the changed circumstances, the County requested an extension until June 30, 2012. The FCC said that granting the requested extension to the County will not result in the relevant channels being “unavailable to other licensees” because, as the County notes, “[n]o other licensee can use the narrowband channels in question, as such use would interfere with the County’s existing public safety operations on overlapping channels.” Moreover, the FCC said, the waiver furthers the construction of a modern, integrated wireless voice and data communications system that will serve more than 34,000 first responders and local mission-critical personnel in Los Angeles County. Further, the FCC required the County to file a report with the Bureau by January 31, 2012, detailing the status of the project and the County’s progress in finalizing the prime contract for construction. If the prime contract has been finalized as of January 31, the County shall provide the contract’s material terms and timeline as part of its report. If the contract has not been finalized, the County shall provide an explanation of the delay and an updated timeline for finalizing the contract and completing the project, the FCC said. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. This newsletter is not intended to provide legal advice. Those interested in more information should contact the firm. |
for a list of used paging infrastructure and test equipment for sale from Ray Primack in Vancouver. Pagers, a big UPS, and other equipment as well. Check it out! 
Steve Jobs' impact on your life cannot be overestimated. His innovations have likely touched nearly every aspect — computers, movies, music and mobile. As a communications coach, I learned from Jobs that a presentation can, indeed, inspire. For entrepreneurs, Jobs' greatest legacy is the set of principles that drove his success. 
United Communications Corp. 
