 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. 34 | September 21, 2011 |
FCC To Consider NPRM
On Next Generation 911
At Sept. 22 Meeting The FCC’s “Sunshine Agenda” for its September 22 open meeting includes two items: 1. Framework for Next Generation 911 Deployment (PS Docket No. 10-255). The Commission will consider a Notice of Proposed Rulemaking (NPRM) to accelerate the development and deployment of Next Generation 911 (NG911) technology to improve public safety by enabling the public to send text, photos, videos, and data communications to 911 Public Safety Answering Points (PSAPs) and enhancing the information available to PSAPs and first responders for assessing and responding to emergencies. 2. The Public Safety and Homeland Security Bureau will present a white paper on the use of deployable aerial communications architecture to facilitate the ability of first responders to communicate with each other and consumers to reach first responders in the wake of natural and manmade disasters, even in situations where there is severe damage to terrestrial communications infrastructure. The report will make recommendations regarding next steps the FCC should consider to promote the development and use of deployable aerial communications architecture. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast. |
INSIDE THIS ISSUE - 15 Democratic lawmakers back AT&T/T-Mobile merger.
- FCC requests voluntary data submissions regarding special access market.
- FCC extends reply deadline in low-power radio service proceeding.
- FCC OKs forbearance for “Lifeline-only” ETCs.
- Obama plans to fight “cyberphobia”—fear of having records posted online.
|
15 Democratic Lawmakers Back
AT&T/T-Mobile Merger A group of 15 Democratic lawmakers, led by Rep. Heath Shuler (N.C.), has asked President Obama and the Department of Justice (DoJ) to quickly settle the lawsuit challenging the proposed AT&T/T-Mobile merger. Essentially, the Congressional representatives argued that the deal should be approved, with conditions, because it would create jobs. At the same time, seven States—California, Illinois, Massachusetts, New York, Ohio, Pennsylvania, and Washington—have joined DoJ’s lawsuit to block the $39 billion merger. These seven States agree with DoJ’s argument that the proposed deal would be anticompetitive because it would reduce the number of nationwide wireless carriers from four to three (BloostonLaw Telecom Update, September 7). Cellular South also joined the lawsuit. On the other hand, a number of States, including Alabama, Arizona, Arkansas, California, Georgia, Kentucky, Louisiana, Massachusetts, Michigan, Mississippi, North Dakota, Ohio, Pennsylvania, South Dakota, Utah, West Virginia, Washington, and Wyoming support the deal. In response to the DoJ complaint, AT&T last week reiterated its argument that the combination of T-Mobile and AT&T is good for consumers. It said that integrating the two networks will free up spectrum and create substantial new capacity to meet the growth in demand resulting from an increasingly online world. AT&T said that the “new network” (itself and T-Mobile) would be “more than the sum of its parts: as a result of engineering efficiencies enabled by the transaction, the combined capacity of the new firm will be significantly greater than what the two companies could do separately.” According to AT&T, that means increased output, higher quality service, fewer dropped calls, and lower prices to consumers than without the merger. AT&T argued that this would increase, rather than reduce, competition. The letter from Rep. Heath Shuler and his Democratic colleagues argues that the proposed AT&T/T-Mobile merger would achieve President Obama’s “three job creation strategies” embodied in his September 8 speech before a Joint Session of Congress to promote his “Jobs Bill” plan. According to the Democratic Representatives, the merger proposal would: - Reduce unemployment. The lawmakers said that AT&T has announced plans to repatriate 5,000 jobs that are currently being performed overseas. In addition to these 5,000 jobs, a recent study has shown that the merger will create somewhere between 55,000 and 96,000 new jobs to integrate the two networks and upgrade facilities.
- Create new private investment to deploy wireless high speed Internet access services to 97% of the U.S. population. Coverage of this magnitude will necessitate an additional $8 billion investment from AT&T over and above its current industry leading capital investments.
- Accelerate wireless broadband deployment to cover 98% of the population within the next five years. The Democratic lawmakers wrote: “[President Obama], you recognized the economic importance of these services in your State of the Union address to the nation last January, when you said ‘within the next five years, we'll make it possible for businesses to deploy the next generation of high-speed wireless coverage to 98% of all Americans.’ The proposed merger will virtually achieve that goal—and do so on a faster timetable than you had proposed and without a single dime of taxpayer money.”
- Next-generation wireless will increase the type of investment to drive job creation. The lawmakers cited a recent study by Deloitte that predicts that next generation wireless broadband buildout by the wireless industry will create 371,000-771,000 jobs and GDP growth between $73 billion and $151 billion by 2016. “AT&T's proposed merger commitment to make available this new technology to 98% of the nation's population will be a key component of the industry buildout,” the lawmakers said.
Finally, Shuler and his colleagues said that they recognized DoJ’s concerns about the merger. But they noted that “Addressing these concerns through a settlement agreement that ensures robust competition while preserving the job creation, capital infrastructure investment and wireless broadband deployment benefits of the merger should be the Department's goal.” A hearing to discuss settlement options was scheduled for September 21, by the U.S. District Court for the District of Columbia. AT&T’s claims run counter to the conventional wisdom that mergers generally result in the reduction of jobs, because a combined entity will strive to cut costs by, among other things, eliminating duplicate jobs. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast. FCC REQUESTS VOLUNTARY DATA SUBMISSIONS REGARDING SPECIAL ACCESS MARKET: The FCC has issued a Public Notice (PN) asking for key information regarding the special access market—services that link cell phone towers, carry data to the Internet, and serve high-volume business customers. All submissions would be voluntary. The FCC said these dedicated, high-capacity links are offered by local telephone companies and purchased by businesses and competitive communications providers. The FCC said that the National Broadband Plan recognized that special access services play a significant role in the availability and pricing of broadband services and recommended that the FCC take steps to ensure that special access rates, terms, and conditions are just and reasonable. In the PN, the FCC’s Wireline Competition Bureau requested detailed data on special access prices, revenues, and expenditures. The request includes information on services such as DS1 and DS3 services, as well as packet-based services such as Ethernet. The PN also seeks data about the nature of terms and conditions for special access services. The Commission said it will use this data to determine whether special access rates, terms, and conditions are just and reasonable. Voluntary submissions in this WC Docket No. 05-25 proceeding are due by December 5. The FCC said that no person is required to supply specific information pertaining to itself, other than that necessary for self-identification, as a condition of the FCC’s full consideration of the comment. Thus, the PN does not seek “information” as that term is used in the Paperwork Reduction Act of 1995. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. FCC EXTENDS REPLY DEADLINE IN LOW POWER RADIO SERVICE PROCEEDING: The FCC has extended the reply comment date until September 27 for its MB Docket No. 99-25; MM Docket No. 07-172; and RM-11338 Third Further Notice of Proposed Rulemaking (FNPRM) regarding Creation of a Low Power Radio Service; Amendment of Service and Eligibility Rules for FM Broadcast Translator Stations. On September 15, the FCC received a request for a one-week extension of the reply comment deadline based on the number of comments filed and the extensive technical exhibits submitted with several comments, as well as the involvement of counsel for several commenting parties in the NAB Radio Show in Chicago in the week prior to September 20, 2011. The FCC found that these circumstances justified a one-week extension of the comment period. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. FCC OKs LIMITED FORBEARANCE FOR “LIFELINE-ONLY” ETCs: The FCC has granted two petitions for forbearance—one filed by Cricket Communications, and one filed by NTCH, Inc.—seeking relief from the requirement that the service area of a competitive eligible telecommunications carrier (ETC) conform to the service area of any rural telephone company serving the same area, for the limited purpose of becoming designated as Lifeline-only ETCs. The Commission concluded that forbearance in these limited circumstances furthers the Communications Act’s and Commission’s goals of promoting access to affordable service for low-income consumers by reducing barriers to carriers participating in the Lifeline program. The FCC conditioned its forbearance upon these companies’ compliance with certain conditions previously imposed on other Lifeline-only ETCs. The FCC emphasized that the forbearance is limited to NTCH and Cricket’s designation as a Lifeline-only ETC. If either entity petitions to become an ETC to receive high-cost support, this forbearance order is inapplicable and each entity must satisfy all of the statutory requirements applicable to ETCs under the Act, the FCC said. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. LIGHTSQUARED NOW EMBROILED IN ALLEGED POLITICAL SCANDAL: LightSquared, which has been trying to convince the FCC that its satellite broadband service will not interfere with Global Positioning Satellite (GPS) systems, has now become embroiled in a Congressional probe, according to several news sources, including POLITICO. LightSquared is majority-owned by an investment fund run by Democratic donor Philip Falcone. Gen. William Shelton was originally scheduled to testify Aug. 3 to a House committee that the project would interfere with the military's sensitive GPS capabilities, which control automated driving directions and missile targeting, among other things. According to POLITI-CO, Shelton's prepared testimony was leaked in advance to the company. And the White House asked the general to alter the testimony to add two points: that the general supported the White House policy to add more broadband for commercial use; and that the Pentagon would try to resolve the questions around LightSquared with testing in just 90 days. Shelton chafed at the intervention, which seemed to soften the Pentagon's position and might be viewed as helping the company as it tries to get the project launched, POLITICO said. GOP lawmakers have asked for an investigation. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell. OBAMA PLANS TO FIGHT “CYBERPHOBIA”—FEAR OF HAVING RECORDS POSTED ONLINE: The Obama Administration intends to fight “cyberphobia”—fear of having your records available online—with an initiative intended to bolster confidence in e-commerce, according to the New York Times. The plan, called the “National Strategy for Trusted Identities in Cyberspace” and introduced earlier this year, encourages the private-sector development and public adoption of online user authentication systems. Think of it as a driver’s license for the Internet, the Times said. The idea is that if people have a simple, easy way to prove who they are online with more than a simple password, they’ll naturally do more business on the Web. And companies and government agencies, like Social Security or the I.R.S., could offer those consumers faster, more secure online services without having to come up with their own individual vetting systems. If the plan works, consumers who opt in might soon be able to choose among trusted third parties — such as banks, technology companies or cellphone service providers — that could verify certain personal information about them and issue them secure credentials to use in online transactions. Industry experts expect that each authentication technology would rely on at least two different ID confirmation methods. Those might include embedding an encryption chip in phones, issuing smart cards or using one-time passwords or biometric identifiers like fingerprints to confirm substantial transactions. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast. COMPLIANCE DEADLINE FOR CAP-FORMATTED EMERGENCY ALERTS EXTENDED UNTIL JUNE 30, 2012: The FCC has issued a Fourth Report and Order (R&O), which extends the compliance deadline Common Alerting Protocol (CAP)-formatted Emergency Alert System (EAS) alerts. The R&O requires EAS Participants to be able to receive CAP-formatted EAS alerts as required by Part 11 of the Commission’s rules no later than June 30, 2012. The FCC said it anticipates that it will adopt the CAP-based revisions to its Part 11 EAS rules in a subsequent order stemming from the Third Further Notice of Proposed Rulemaking (FNPRM) in the EB Docket No. 04-296 proceeding sufficiently in advance of June 30, 2012, to allow EAS Participants ample time to comply with the new Part 11 rules. In this subsequent order, the FCC said it will also address the many remaining non-CAP related issues raised in the Third FNPRM. The current EAS is a national public warning system that requires broadcasters, cable systems, and other service providers to provide communications capabilities that enable the President to address the public in national emergencies. EAS participants also distribute, on a voluntary basis, alerts issued by state and local governments, as well as the National Weather Service (NWS). The Commission, the Federal Emergency Management Agency (FEMA), and NWS implement the EAS on the federal level. The Commission adopts, administers, and enforces the technical rules for the EAS. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and Mary Sisak. FCC TESTING SPECTRUM BRIDGE’s TV BAND DATABASE SYSTEM: 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 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. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. NET NEUTRALITY RULES TAKE EFFECT NOVEMBER 20: The FCC’s controversial “net neutrality” rules are scheduled to take effect November 20. The Office of Management and Budget (OMB) today approved the information collections, and the rules will go into effect in 60 days. The FCC said the network neutrality rules ensure that Internet openness will continue, providing greater certainty to consumers, innovators, investors, and broadband providers, including the flexibility providers need to effectively manage their networks (BloostonLaw Telecom Update, December 22, 2010). These rules were developed following a public rulemaking process that began in fall 2009 and included input from more than 100,000 individuals and organizations and several public workshops. The rules require all broadband providers to publicly disclose network management practices, restrict broadband providers from blocking Internet content and applications, and bar fixed broadband providers from engaging in unreasonable discrimination in transmitting lawful network traffic. The FCC said the rules ensure much-needed transparency and continued Internet openness, while making clear that broadband providers can effectively manage their networks and respond to market demands. The net neutrality rules are under challenge by certain Republicans in Congress, some of whom have proposed requirements in the context of recent broadband spectrum legislation that would at least partially undo the existing neutrality rules. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. Editor's note: Please accept my apology, this should have been in last week's newsletter. BloostonLaw got it to me in time, I just didn't get it into last Friday's newsletter. Some of this information was time-sensitive and is now out of date. (Mea Culpa — sorry — Brad Dye) BloostonLaw Private Users Update Published by the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP [Portions reproduced here with the firm's permission.] www.bloostonlaw.com |
| Vol. 12, No. 9 | September 2011 |
Ownership Changes May Require FCC Approval We want to remind our clients that many types of reorganizations and other transactions require prior FCC approval; and given the frequent need to implement such transactions by the end of the year, companies engaging in such transactions should immediately evaluate whether they must file an application for FCC approval, and obtain a grant, before closing on a year-end deal. Transactions requiring prior FCC approval include (but are not limited to): - Any sale of a company that holds FCC licenses;
- A conversion in the form of organization from a corporation to an LLC, or vice versa, though such changes are not regarded as a change in entity under state law.
- Any transfer of stock that results in a shareholder attaining a 50% or greater ownership level, or a shareholder relinquishing a 50% or greater ownership level;
- Any transfer of stock, partnership or LLC interests that would have a cumulative affect on 50% or more of the ownership.
- The creation of a holding company or trust to hold the stock of an FCC license holder;
- The distribution of stock to family members, if there are changes to the control levels discussed above;
- The creation of new classes of stockholders that affect the control structure of an FCC license holder.
- Certain minority ownership changes can require FCC approval (e.g., transfer of a minority stock interest, giving the recipient extraordinary voting rights or powers through officer or board position).
Fortunately, transactions involving many types of licenses can often be approved on an expedited basis. But this is not always the case, especially if microwave licenses are involved. Also, in some instances Section 214 authority is required, especially in the case of wireless and other telephony services. Clients planning year-end transactions should contact us as soon as possible to determine if FCC approval is needed. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. |
Reminder — Commercial Regulatory Fee Payments Due September 14, 2011 All regulatory fee payments for Commercial Mobile Radio Service and other similar commercial operations will be due no later than 11:59 PM (ET) on Wednesday, September 14, 2011. Most of our Part 90 private user clients are NOT responsible for paying regulatory fees on an annual basis, since the fees for private radio licenses are collected as part of the filing fee for new licenses and license renewals and cover the 10-year term of the license. However, a few of our private user clients also hold commercial licenses, such as satellite earth stations and for-profit paging stations, that are subject to the annual payment of regulatory fees. Those clients that we have assisted with annual regulatory fees in the past received a separate instruction memo from us. If you believe that you hold any licenses that are subject to annual regulatory fees, please review the information below and contact us with any questions. Like last year, all regulatees that pay annually will be required to pay their regulatory fees via the Commission’s online Fee Filer payment system. As described above, most Part 90 and Part 101 private radio licensees pay their regulatory fee every ten years with their license renewal application. Cellular, PCS, AWS, 700 MHz, Paging, and most other CMRS/commercial licensees must pay annually. Annual payers will be required to access the Fee Filer system (www.fcc.gov/fees/feefiler.html) with their valid CORES FRN and password in order to initiate the process of filing their annual regulatory fees. Payment may be made electronically through the Fee Filer system (ACH Payment or Credit Card) or by check or credit card information that is forwarded directly to the FCC’s Lock Box at US Bank. Additionally, you may also make payment by wire funds transfer directly to the US Treasury. It is important to note that the FCC no longer mails out pre-bills for regulatory fees associated with Interstate Telecommunications Service Providers (“ITSPs”), Satellite Space Stations, holders of Cable Television Relay Service (“CARS”) licenses, Earth Stations or CATV Systems. Instead, the FCC has placed its pre-bill information for these services its Fee Filer system, where they may be viewed and paid. If you choose to submit a payment by check or money order (as opposed to paying electronically via Fee Filer), a Form 159-E voucher, which is generated by the Fee Filer System, must accompany your payment. If you choose to send the payment and Form 159-E payment voucher via regular mail, the envelope should be addressed, as follows: Federal Communications Commission
Regulatory Fees
P.O. Box 979084
St. Louis, MO 63197-9000
If, instead, you chose to send the payment and Form 159-E payment voucher by courier, two envelopes should be used. The outer envelope should be addressed, as follows: Federal Communications Commission
Regulatory Fees
c/o US Bank — Government Lock Box 979084
SL-MO-C2-GL
1005 Convention Plaza
St. Louis, MO 63101
Attention: FCC Government Lock Box
The inner envelope should be addressed as follows: Federal Communications Commission
Regulatory Fees
P.O. Box 979084
St. Louis, MO 63197-9000
We caution that all annual regulatory fees must be paid by the Wednesday, September 14, 2011 filing deadline. A failure to successfully make the payment by this deadline will result in the imposition of a 25 percent late payment fee. Additionally, it is important to note that the FCC has started the practice of immediately placing any regulatee whose payment has not been received and processed by the filing deadline in a “red light” status. Thus, even if the payment has been timely made, you could end up being “red-lighted” if the FCC has not completed the processing of your payment prior to the September 14, 2011 filing deadline. This is significant be-cause any company that is “red lighted” is presumed by the FCC to be delinquent on its debts to the Government and therefore will not receive any benefits from the FCC (such as application grants) until the matter is resolved. Please let us know if you have any questions or need any assistance with your regulatory fee payments. BloostonLaw contact: Richard Rubino FCC Sets Comment Dates For FNPRM Proposing Microwave Flexibility The FCC has established a comment cycle for its Further Notice of Proposed Rulemaking (FNPRM) seeking comment on additional proposals to make microwave communications more flexible and cost-effective. The FNPRM was adopted at the FCC’s August open meeting, in conjunction with a Report & Order (R&O) and Memorandum Opinion and Order (MO&O) to make available new spectrum, covering almost two-thirds of the U.S. landmass, for wireless backhaul as part of the FCC’s Broadband Acceleration Initiative and its spectrum and regulatory reform agendas (BloostonLaw Telecom Up-date, August 17, special issue). Comments on the WT Docket No. 10-153 FNPRM are due October 4, and replies are due October 25. The FNPRM proposes to allow smaller antennas in certain microwave bands, as smaller antennas may be cheaper, easier to install, and generate fewer objections in the zoning process. The FNPRM also seeks comment on exempting licensees in non-congested areas from the Commission’s efficiency standards, which may make use of fixed microwave links more cost-effective in rural areas. More specifically, the FNPRM: - Allows Smaller Antennas in Certain Part 101 Antenna Standards: The Part 101 rules establish directional antenna standards designed to maximize the use of microwave spectrum while avoid-ing interference between operators. The FNPRM seeks comment on whether the FCC may liberalize its rules to allow smaller antennas in the 6, 18, and 23 GHz bands without materially in-creasing interference.
- Exempts Licensees in Non-Congested Areas from Efficiency Standards: Currently, fixed microwave links are subject to the same capacity requirements whether they are in rural or more densely populated urban areas. Lower traffic volumes on rural networks and greater distances between microwave links often make meeting these minimum capacity requirements much more costly in rural areas. Based on an engineering analysis showing that allowing lower efficiency standards in rural areas could allow operators to substantially increase link length, the FNPRM proposes to exempt licensees in non-congested areas from the efficiency standards and to allow licensees in other areas to seek relief from the standards upon making a special showing
- Allows Wider Channels in 6 and 11 GHz Bands: The FNPRM seeks comment on allowing micro-wave operators to create higher capacity links by licensing 60 and 80 megahertz channels in the 6 and 11 GHz microwave bands, respectively.
- Revises Waiver Standard for Microwave Stations Near the Geostationary Arc: To prevent interference to geostationary satellites, the Commission’s Rules require microwave stations that point near the geostationary arc to obtain a waiver. The FCC proposes to revise the rule to limit the circumstances where a waiver is necessary by conforming its rule to International Telecommunications Union (ITU) regulations.
- Updating Definition of Payload Capacity: The FCC proposes to modify the definition of payload capacity in its Part 101 rules to account for Inter-net protocol radio systems.
The Memorandum Opinion and Order addresses various proposals offered in response to the Notice of Inquiry (NOI) that either lack specificity, are outside the scope of this proceeding, or are not yet ripe for consideration. Clients who may want to use the microwave bands will be pleased to know that the Commission has declined to permit the licensing of “auxiliary stations” (using low-gain antennas with large side-lobe radiation so as to allow the main fixed station to communicate with multiple auxiliary stations situated along the side lobes of the antenna) in the FS bands. Last October, a group of our clients opposed a petition proposing the licensing of these auxiliary stations claiming that such operation had the potential for causing interference to conventional microwave operations and limiting the availability of microwave spectrum in the future. The Commission has now agreed and indicated that such auxiliary stations might better be accommodated in the upper micro-wave bands (24 and 39 GHz) and in LMDS. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell. FCC Proposes Changes To Streamline Review Process For Foreign Ownership Of Certain Wireless Licenses At its August 9 open meeting, the FCC adopted a Notice of Proposed Rulemaking (NPRM) to reduce regulatory burdens and streamline the foreign ownership review process for U.S. companies with common carrier radio licenses (e.g., wireless phone companies) and certain aeronautical radio licenses. The proposals would ensure that the Commission continues to receive the information it needs to serve the public interest while reducing the number of required filings by more than 70%. The NPRM does not address foreign ownership of broadcast licensees. Most Part 90 private land mobile licenses are NOT subject to foreign ownership restrictions, but certain licenses such as SMR, paging and public coast radio can have common carrier status. Section 310(b)(4) of the Communications Act establishes a 25% benchmark for foreign investment in U.S. companies that directly or indirectly control a U.S. broadcast, common carrier, or aeronautical radio station licensee. It also grants the Commission discretion to allow higher levels of foreign ownership unless such ownership is in-consistent with the public interest. The NPRM seeks comment on proposed measures to revise and simplify the process for reviewing requests for higher levels of foreign ownership in wireless common carrier and aeronautical licensees, and spectrum les-sees. The proposed changes would purportedly provide greater transparency and more predictability as to what information the Commission needs to carry out its statutory duties under the Act, and would reduce costs for U.S. wireless carriers seeking approval of foreign owner-ship above the 25 percent benchmark. Comments in this IB Docket No. 11-133 proceeding will be due 45 days after publication of the item in the Federal Register, and replies will be due 30 days thereafter. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell. FCC Seeks Comment on Draft “PEA” For Antenna Registration Program To comply with its obligations under the National Environmental Policy Act (NEPA), the FCC is conducting a Programmatic Environmental Assessment (PEA) of its Antenna Structure Registration (ASR) program. The purpose of the PEA is to evaluate the potential environmental effects of the Commission’s ASR program. On August 26, the Wireless Telecommunications Bureau released the Draft PEA on the ASR program, and invites comment on the Draft PEA by October 3. The Draft Programmatic Environmental Assessment of the Antenna Structure Registration Program (ASR EA Program) 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, regard-less 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. Another alternative would base the preparation of an EA on a combination of location and structural/lighting features. Thus, any new registered tower that requires an EA under existing rules that is located within 660 feet/201 meters of a Bald Eagle nest or 0.6mile/1 kilometer of a Golden Eagle nest would require an EA. Additionally, if a proposed tower was located near a ridge line, coastal zone, bird staging area or colonial nesting site, an EA would be required if the tower was more than 450 feet tall or would use red steady burning lights or guy wires. However, if a tower was not located in any of these areas or otherwise have any of the features described above, it would be categorically excluded under this alternative. Finally, towers in an antenna farm, replacement towers and modifications to existing towers would require an EA under the same circumstances as a new tower if there is a substantial increase in size or if red-steady burning lights are added to a tower that is located along a ridge-line, coastal zone, bird staging area or colonial nesting site. Finally, the FCC is also considering an option what would only require the submission of an EA for any proposed new tower or replacement/modification of an existing tower that involves a substantial increase in size that is more than 450 feet above ground level, irrespective of location, lighting scheme or use of guy wires. Under this proposal, any antenna tower that is less than 450 feet above ground level would be categorically exempt from the preparation of an EA unless a condition requiring the filing of an EA under the FCC’s existing rules is present. The comment cycle associated with the ASR EA Pro-gram provides AICC with another the opportunity to op-pose the environmentalists demands for the protection of migratory birds that will likely impose significant costs and delay on tower owners — especially where it is recognized that regardless of the option or alternative selected by the FCC, the impact on migratory bird mortality at the national level will be insignificant, and that perhaps the best solution to mitigate avian mortality from collisions with antenna towers would be to change the light-ing specifications mandated by the FAA. As a result, the industry should advocate that the FCC adopt the least restrictive alternative — namely, that an EA be required for any proposed new tower or replacement/modification of an existing tower that involves a substantial increase in size that is more than 450 feet above ground level. In this way, clients can go on record to support a regulatory scheme that will minimize the costs and delays that would be created by unnecessary regulation, especially when taken in context, avian mortality is not significant. Under the ASR program, owners of antenna structures that are taller than 200 feet above ground level or that may interfere with the flight path of a nearby airport must register those structures with the FCC. The antenna structure owner must obtain painting and lighting specifications from the FAA and include those specifications in its registration prior to construction. The ASR program allows the FCC to fulfill its statutory responsibility to re-quire painting and lighting of antenna structures that may pose a hazard to air navigation. The FCC has established a website, http://www.fcc.gov/pea, which contains information and downloadable documents relating to the PEA process, including the Draft PEA. The website also allows individuals to contact the Commission. On September 20, from 2:30pm until 5:00pm, Eastern Time, the FCC will hold a meeting for the public to provide input on the Draft PEA. The meeting will take place in the Commission’s Meeting Room, 445 12th Street, SW, Washington, DC. Audio/video coverage of this meeting will be broadcast live with open captioning over the Internet from the FCC's web page at www.fcc.gov/live. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. Reply Date Extended For NOI On Rights Of Way, Wireless Facilities Siting The FCC has extended the reply comment deadline for its Notice of Inquiry (NOI) addressing government policies for obtaining access to rights of way and wireless facilities siting. Replies in this WC Docket No. 11-59 proceeding are now due September 30. Policies for managing rights of way and siting wireless facilities, including the procedures and costs for acquiring permission to build, affect how long it takes and how much it costs to deploy broadband. By working together with other interested parties on these issues, the Commission said it can reduce the costs and time required for broadband deployment, both fixed and mobile, which will help unleash private investment in infrastructure, increase efficient use of scarce public resources (including spectrum) and increase broadband adoption. The NOI is intended to update the FCC’s understanding of current rights of way and wireless facilities siting policies, assess the extent and impact of challenges related to these matters, and develop a record on potential solutions to these challenges. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. FCC Clarifies Texas 700 MHz Public Safety Waiver On May 26, Harris Corp. filed a Petition for Clarification of the FCC Public Safety and Homeland Security Bureau’s May 12 Order granting the State of Texas a waiver to begin early deployment of a 700 MHz public safety wireless broadband network. In the interest of eliminating any uncertainty, the Bureau clarified that it does not require, endorse, or favor any specific form of local procurement and in particular does not endorse or require the State of Texas or any jurisdictions that deploy networks under its waiver to use a sole-source method for obtaining services or equipment for their networks. The Bureau said that “a network operator should be able to procure cores, radio access network equipment, and devices, all from multiple vendors, without sacrificing functionality.” BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell. FCC Reaches Accords On 700 MHz Border Sharing The FCC has reached arrangements with Industry Canada and Mexico’s Secretariat of Communications and Transportation (SCT) for sharing commercial wireless broadband spectrum in the 700 MHz band along the U.S.-Canadian and U.S.-Mexican border areas. The FCC also reached an arrangement with Industry Canada for sharing spectrum in the 800 MHz band. The FCC said these actions will help support commercial broad-band services and public safety mission-critical voice communications. The FCC added that the technical sharing principles reached on the 700 MHz band will facilitate the deployment of mobile wireless broadband systems near the U.S.-Canadian and U.S.-Mexican borders and will provide consumers in these areas with advanced opportunities for 4G high-speed mobile broadband access. Under the arrangements, licensees on both sides of the borders will have greater access to the 698-758 MHz and 776-788 MHz bands. The technical sharing principles reached on 800 MHz will pave the way for completion of 800 MHz rebanding by U.S. public safety and commercial licensees operating along the U.S.-Canadian border. The FCC ordered rebanding to alleviate interference to public safety licensees in the band caused by commercial cellular licensees. The arrangement specifies (1) how primary channels will be allotted between the United States and Canada, (2) the technical parameters for operation on these channels within 140 kilometers (87 miles) of the common border, and (3) a schedule for transitioning facilities from the channels needed by the U.S. to complete rebanding along the U.S.-Canadian border. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell. FCC Is Conducting Public Safety Showcase The Federal Communications Commission’s Office of Managing Director and the Public Safety and Homeland Security Bureau today announced that during the month of September, the FCC Technology Experience Center will showcase public safety and homeland security technologies in recognition of Emergency Preparedness Month. The FCC Technology Experience Center (FCC TEC) is an on-site technology lab that provides FCC employees and visitors to FCC headquarters hands-on experience with the latest communications devices and solutions. During the September showcase, a range of state-of-the- art tools available to first responders and homeland security professionals will be exhibited. These include: - Advanced handsets that allow users to talk and send or receive data on the same channel with just one radio;
- A "cell tower in a suitcase" designed to allow first responders and disaster recovery personnel to connect to cell phones by connecting to satellites for voice and data connectivity;
- Solutions to detect active cell phones and determine the location of a phone;
- 911 call-location solutions that enable first responders to find those in need with even greater precision; and
- The latest in advanced command and control solutions and situational awareness devices now available to local and state public safety and homeland security agencies.
Participants in the FCC showcase will include ITT Intelligence & Information Warfare, T-Mobile, Motorola Solutions, Chassidism Communications, GlobalStar, Alcatel-Lucent, GreatCall, AT&T, TeleCommunication Systems, OnStar, Harris Corporation, Verizon, Inmarsat, Juniper Networks, Intrado, and Elster Solutions. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell. FCC Issues $25k Fine For Interfering With Police The FCC has issued a Notice of Apparent Liability for Forfeiture (NAL), finding that Estevan J. Gutierrez, apparently willfully and repeatedly violated (1) section 301 of the Communications Act by operating on a frequency licensed to the Las Vegas, New Mexico, Police Department (LVPD) without authorization, and (2) section 333 of the Act by willfully and maliciously interfering with the LVPD’s licensed operations on that frequency. The FCC concluded that Gutierrez is apparently liable for a forfeiture in the amount of $25,000. The LVPD complained of radio interference to their main dispatch channel of 159.150 MHz from an unknown male who was threatening LVPD officers. The LVPD informed the FCC Enforcement Bureau that the subject’s use of the frequency included obscenities and threats against police officers and their families, and that it required the LVPD to use a backup channel for their dispatch operations. An LVPD sergeant identified the voice as that of Gutierrez, who was known to the sergeant from prior incidents in the City of Las Vegas. The Enforcement Bureau used radio direction-finding techniques and determined that Gutierrez was responsible for the transmissions. The FCC said Gutierrez’s misconduct particularly egregious and found that an upward adjustment of $8,000 to the combined base forfeiture of $17,000 is warranted, resulting in a $25,000 total forfeiture. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. FCC Extends Waiver For Cardiac Devices The FCC has granted a request by Boston Scientific Corporation to extend the existing waiver of Section 15.205 of the rules for its Contak Renewal TR, Cognis, and Teligen cardiac devices. Granting Boston Scientific’s request will permit these devices to continue to use the 90-110 kHz band while Boston Scientific finalizes the development and introduction of replacement devices that will not operate in that band, the FCC said. The present waivers are scheduled to expire on December 31, 2011, and the extension will permit the continued manufacture and marketing of the subject devices until June 30, 2013, or until one year after the Food and Drug Administration (FDA) approves each device, whichever comes first. The FCC said this further extension is needed due to unanticipated delays in the completion of product development for the respective devices or in the approval of the replacement devices by the FDA. Because the health benefits provided by these devices will continue to be available to cardiac patients that have come to rely on them, and because the risk of harmful interference to other authorized operations in the band is extremely small, the FCC concluded that good cause exists, and the public interest would be served by, extending the existing cardiac devices. The present waivers are scheduled to expire on December 31, 2011, and the extension will permit the continued manufacture waiver. Boston Scientific manufactures several lines of implantable cardiac medical devices, including cardiac re-synchronization therapy devices (the Contak Renewal TR devices), cardiac re-synchronization devices with pacemakers (the Cognis devices), and variometer defibrillators (the Teligen devices). As currently designed, these devices rely on inductive coupling to initiate communication sessions that download data from, and modify the operational settings of, the implanted devices and to serve as a backup communications link. Because this inductive coupling technique produces fundamental emissions in the 90-110 kHz restricted band, these devices do not comply with the restricted band provisions of Section 15.205. The FCC said the waiver presents an unusual and compelling public interest situation in which patients and their caregivers rely on the devices at issue for health- and life-critical purposes. The Commission said the extension will ensure that the treatment benefits provided by these devices will continue to be available to patients until FCC-compliant replacements can be brought to market in an orderly manner, and the critical benefits provided by these devices continue to present a significant public interest basis for the requested relief. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. FCC Grants Amoco Waiver For “Itinerant” Channels The FCC has granted the request for waiver filed by Amoco Chemical Company to use 896-901/935-940 MHz (900 MHz) band itinerant use channels at a permanent location. The FCC said that four 900 MHz band frequency pairs have been designated for operations at unspecified locations for varying periods of time (itinerant use). Amoco wants to add three of those frequency pairs (897/936.6625 MHz, 00/939.9750 MHz, and 900/939.9875 MHz) to its license for 900 MHz Industrial/Land Transportation Station WPAH364, for use at its plant at Texas City, Texas. Amoco stated that the purpose of the proposed channel expansion is to eliminate congestion and provide more reliable communications on the existing system for the chemical plant, adjoining refinery, and waterways that serve as Amoco’s terminal port. Its frequency coordinator stated that no other 900 MHz band frequencies are available in the vicinity. Amoco stated that it explored other options, such as utilizing different services or frequency bands, but concluded that they would cause significant disruption to the plant operations and provide less functionality. It also stated that this channel expansion will extend the life of the existing system to allow Amoco to engineer and migrate to a long-term solution. The FCC said that Amoco has demonstrated that grant of its waiver request is warranted under the circumstances, and that its proposed operations do not pose an interference threat to existing licensees. The channel expansion will permit more reliable communications, which will enhance the safety of operations at the Texas City plant. The FCC noted, however, that “the very nature and pr-pose of the itinerant frequencies create situations where a given itinerant frequency may be less heavily used in a particular area at a given time than frequencies available for permanent-type use.” Thus, the fact that Amoco’s proposed use does not currently appear to impinge upon itinerant use of the channels does not mean that the situation may not change. Therefore, to preserve the availability of the channels for future itinerant use if necessary, Amoco’s application will be granted on the condition that Amoco must accept interference from licensed itinerant operations on the itinerant use channels, and may not cause interference to licensed itinerant operations on the itinerant use channels, the FCC said. 
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! 
Apple, now America’s 
United Communications Corp. 
e-mail: 
