BloostonLaw Telecom 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. 14, No. 7 | February 16, 2011 |
Russian Official Blames Google For “Trouble” In Egypt According to Reuters, Russian Prime Minister Vladimir Putin's deputy has blamed Google Inc. for “stirring up trouble” with the revolution that brought down Egyptian leader Hosni Mubarak. "Look what they have done in Egypt, those highly-placed managers of Google, what manipulations of the energy of the people took place there," Russian Deputy Prime Minister Igor Sechin told the Wall Street Journal in an interview, Reuters said. Reuters said such strong comment from one of Putin's most trusted deputies is a clear signal of growing concern among Russian hardliners about the role of the Internet in the unrest which has swept across the Arab world. Sechin gave no further details on his concerns, Reuters reported, noting that Google executive Wael Ghonim became an unlikely hero of the uprising in Egypt which led to Mubarak's deposition. In contrast to state television, Reuters noted, Russia's Internet is remarkably free and the home to often scathing criticism of Putin, President Dmitry Medvedev, and the entire Russian elite. Russia has so far resisted placing restrictions on the Internet, but analysts say there are a group of hardliners close to Putin who would like to impose controls similar to China's. Chinese President Hu Jintao has called for stricter government management of the Internet and warned top Communist Party leaders that China was facing deepening social conflicts that would test the party's ability to maintain firm control, according to Reuters. |
INSIDE THIS ISSUE - House passes amendment to block funding of FCC’s “Net Neutrality” rules.
- NTCA adopts resolutions at Dallas annual meeting.
- FCC asks Verizon to explain 911 call failures in Maryland.
- FCC directs USAC to respond to high-cost program beneficiary audit errors.
- FCC asks USAC for information detailing accounting of fixed assets for USF.
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House Passes Amendment To Block Funding Of FCC’s “Net Neutrality” Rules The U.S. House of Representatives last Wednesday passed an amendment, offered by Rep. Greg Walden (R-Ore.), chair of the Subcommittee on Communications and Technology, to a Continuing Resolution of Disapproval (H.J. Res. 37) to prohibit the FCC from using funds to implement the Commission’s Net Neutrality Order. The amendment was crafted with leaders from the Appropriations Committee, including Reps. Mario Diaz-Balart (R-Fla.), Jo Ann Emerson (R-Mo.), and Tom Graves (R-Ga.), to give time for Congress to permanently overturn the rules. “We all want an open and thriving Internet. That Internet exists today. Consumers can access anything they want with the click of a mouse thanks to our historical hands-off approach,” said Walden. “I am pleased that my colleagues in the House accepted my amendment to ensure the FCC does not have the funds to implement the controversial Internet regulations.” “However, the amendment is simply a stop gap measure while we work towards passing a more permanent solution,” Walden said. “I would encourage everybody who cares about keeping the government out of the business of running the internet to cosponsor the Resolution of Disapproval, H.J. Res. 37, which would nullify the rules themselves.” The House action followed a subcommittee hearing in which all five FCC Commissioners testified on the Net Neutrality rules. Generally, the Net Neutrality 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 (BloostonLaw Telecom Update, December 22, 2010). At last Wednesday’s subcommittee hearing, according to various press reports, Walden said: “The FCC even confesses in its Order that it has done no market analysis. It just selectively applied the rules to broadband providers, shielding Web companies.” Rep. Lee Terry (R-Neb.) also expressed disappointment that the FCC had not conducted a comprehensive analysis of threats to the open Internet. Lee has written the Commission requesting such a study. But FCC Chairman Julius Genachowski responded that the Commission did do a market analysis in its Order. Republican lawmakers also argued that the Commission does not have the authority to regulate the Internet, and that the Order will undermine investment in this area. Rep. Ed Markey (D-Mass) defended the FCC, arguing that the Order should have gone even further. He said regulations are needed to guard against the dangers of monopoly. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast. NTCA Adopts Resolutions At Dallas Annual Meeting All Three Rural Associations Ask for Member Input in Joint Statement Members of the National Telecommunications Cooperative Association (NTCA) adopted a series of resolutions at the group’s recent Annual Meeting in Dallas. Highlights included the following: NTCA and its members will steadfastly pursue working relationships with the new members of Congress in order to ensure that they understand how rural community-based telecommunications providers efficiently utilize government resources and work with federal agencies to provide rural Americans with the same advanced telecommunications services that their urban counterparts receive and therefore the same economic, educational, and health care opportunities. NTCA will continue to engage with both legislative and regulatory policy-makers to educate them on the importance of robust broadband deployment in rural America, the need to build upon the successes of existing programs, and the need to formulate new strategies that promote and sustain the deployment of broadband infrastructure by rural community-based telecommunications providers in order to avoid a digital divide between rural and urban citizens. NTCA and its members shall continue to pursue reforms to anticompetitive negotiations that will level the playing field for rural MVPDs and their consumers, and to discourage any discriminatory practices against broadband providers. NTCA shall continue to encourage Congress and the FCC to work together to pursue federal policies that embody these net neutrality principles and provide certainty for all network operators. NTCA shall continue working with policymakers to ensure laws and regulations enhance the ability of rural community-based telecommunications providers to compete in the wireless marketplace. NTCA shall continue to play a leading role in working with the appropriate policy-makers and groups to ensure that the dual goals of ensuring our economic and national security are met while simultaneously ensuring that the means of achieving these objectives do not unduly burden or otherwise tie the hands of rural community-based telecommunications providers in the daily conduct of their operations. NTCA and its rural community-based telecommunications provider members will systematically gather information on the failure of companies to complete calls to rural customers and will work with Congress and the FCC to ensure that the problem is fixed promptly and does not recur in the future. In a related development, NTCA, OPASTCO and WTA today issued a joint statement asking their collective memberships to contact the associations with specific questions, ideas and facts that will be helpful in addressing the FCC’s USF/ICC reform proposals. The associations noted that “We are far past the point of simply saying ‘no’ to reform or only launching high-level arguments about why the FCC should not implement a given reform in the NPRM – to preserve the core elements of the cost recovery mechanisms you rely upon and to make sure they meet the needs of you and your customers as reformed, we need to be specific in our points and we need to present realistic and practical alternatives.” The associations are in the final stages of preparing an alternative plan in response to the FCC’s proposed rule changes. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. FCC ASKS VERIZON TO EXPLAIN 911 CALL FAILURES IN MARYLAND: Jamie Barnett, Rear Admiral (ret.) and Chief of the FCC’s Public Safety and Homeland Security Bureau, has requested that Verizon provide the Commission with a full assessment of what caused the failure to connect approximately 10,000 wireless emergency calls to 911 call centers in Montgomery and Prince George’s Counties, Maryland, during the January 26, 2011, snowstorm; identify remedies to help prevent similar occurrences in the future; and implement solutions to quickly restore reliable network operations when there are problems. The Bureau’s preliminary findings show that on January 26 all 14 circuits in the Verizon network that properly route all wireless calls in Montgomery County failed and nine of 10 Verizon circuits in Prince George’s County failed over a five-hour period on the night in question. This resulted in approximately 8,300 blocked 911 calls in Montgomery County and 1,700 blocked 911 calls in Prince George’s County that evening. Barnett said in a letter delivered to Verizon, “… any 911 call which is not connected can have serious consequences, but the large number of missed 911 calls on January 26 is alarming. The public rightly expects that they can use 911 to reach the appropriate first responders in an emergency.” He further stated, “We are particularly concerned that this problem may be widespread across Verizon’s footprint” and that Verizon investigate the extent of the problem across its network. BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast. FCC DIRECTS USAC TO RESPOND TO HIGH-COST PROGRAM BENEFICIARY AUDIT ERRORS: The FCC has directed the Universal Service Administrative Company (USAC) to take further action in response to the “December 2010 USAC Final Report and Statistical Analysis of the 2007-08 High Cost Program Beneficiary Audits.” In its report, USAC lists the most frequent issues arising from the 285 high-cost program audits from 2007-2008, including the five issues most frequently identified and the five issues associated with the highest dollar amounts of improper payments. These findings for these two lists overlap and include the following: (1) inadequate/missing documentation; (2) inaccurate line count/loop data; (3) accounting errors; (4) subscriber list errors; (5) revenue reporting errors; (6) eligibility errors; and (7) other reasons. The FCC stated that it recognizes and appreciates USAC’s efforts to reduce improper payments associated with these errors through outreach, oversight, management, audits, and information technology resources. In addition to these efforts, the FCC instructs USAC, for each of the seven findings above, to examine, identify, explain, and categorize the cause(s) of each error. For example, USAC should provide categories under each finding that explain and identify the core cause for the error(s) in each audit, and whether each error was due to a weakness in USAC’s internal controls or beneficiary controls or behavior. In addition, USAC has been directed to provide a recommendation concerning how these errors, by category, can be corrected or eliminated – whether through modifications to USAC business practices and internal controls. Finally, USAC has been directed to review and recommend modifications to USAC’s programmatic instructions based on the above findings. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. FCC ASKS USAC FOR INFORMATION DETAILING ACCOUNTING OF FIXED ASSETS FOR USF: The FCC has requested additional information from the Universal Service Administrative Company (USAC) detailing its accounting of fixed assets for the universal service fund (USF). Specifically, in its 2009 Annual Report, USAC categorized fixed assets (furniture, equipment, leasehold improvements, computer hardware and software), totaling approximately $16.5 million, as assets held for the USF but recorded on the USAC books of account. The FCC has treated property and equipment purchased with USF monies as assets of the USF for purposes of the FCC’s financial statements. In addition, for several years, USF was billed based upon USF profit and loss (P&L) expenses rather than USAC’s actual cash disbursements. According to USAC, this methodology understated USF expenses and resulted in a cumulative adjustment to USAC’s administrative expenses and a reduction in USAC’s Due To/Due From balance. As a result, USAC has proposed modifying its methodology for calculating the invoice between USAC and USF. In order to reconcile the Due To/Due From balance between USAC and USF, USAC has suggested an entry that will correct its invoicing methodology when recording USF fixed assets on the USAC books of account. Given USAC’s past accounting practices for USF fixed assets, and to further consider USAC’s proposal, the FCC is requesting that USAC provide a legal and accounting justification for recording all fixed assets purchased with USF monies on the USAC books of account rather than the USF books of account. In doing so, USAC should explain how the practice of recording USF assets on the USAC books of account complies with section 254 of the Communications Act, Part 54 of the Commission’s rules, Commission orders, and with appropriations law principles. Finally, USAC should describe, in detail, the accounting method used by USAC to record all property purchased by USAC contractors (including intellectual property) for which the USAC contractor is entitled to be reimbursed from USF monies. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. FCC INSTRUCTS USAC TO COMPLY WITH FISMA SECURITY PROCEDURES: The FCC has provided additional instruction to the Universal Service Administrative Company (USAC) concerning compliance with the Federal Information Security Management Act of 2002 (FISMA). Under FISMA, agencies are responsible for providing information security protections for information systems used or operated by an agency or by a contractor of an agency or other organization on behalf of an agency. Section 3544(b) of FISMA further states that each agency shall develop, document, and implement an agency-wide information security program to provide information security for the information and information systems that support the operations and assets of the agency, including those provided or managed by another agency, contractor, or other source. The FISMA Report (prepared by KPMG) identified a number of instances in which USAC’s security program was not being operated consistent with FISMA requirements. In response to these findings, the FISMA Report recommended that USAC: - Perform, at least annually, disaster recovery tests of all its major applications and general support systems used in support of the Commission;
- Ensure that all systems under USAC control are re-authorized every three years or when a significant change to the information system occurs;
- Document a security authorization letter for the USAC General Support System (GSS) that includes the authorization decision, terms and conditions for the authorization and the authorization termination date;
- Document system security plans in detail sufficient to plan system security controls for general support systems and major applications that are identical or equivalent to the National Institute of Standards and Technology (NIST) Special Publication (SP) 800-53 Rev. 3 minimum baseline controls;
- Consider within its risk assessments a full range of significant risks and include system characteristics, the likelihood rating assigned to each vulnerability, the residual risk to agency operations or agency assets, and the calculation of risk levels. Control recommendations from risk assessments should be used to create or update system security plans;
- Test a representative subset of IT security controls (including management, operational, and technical controls) annually for the USAC GSS and major applications so that all controls are assessed at least once during an information system’s three-year authorization cycle. For future security assessments in support of initial security authorizations USAC should also ensure that all IT security controls are tested; and
- Revise, finalize and implement procedures for completing a security authorization package, including planning and scoping guidance and procedures for creating a security authorization package in accordance with NIST guidance and for administering USAC’s security authorization program. USAC’s policies and procedures should require that security assessment testing cover a representative subset of management, operational and technical controls in accordance with evaluation criteria from NIST SP 800-53a.
The Commission directed USAC to incorporate the above recommendations into its FISMA compliance procedures and to take the necessary steps to implement these recommendations immediately, including providing the Commission with a corrective action plan in accordance with previous Commission guidance. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. NTIA UNVEILS NATIONAL BROADBAND MAP: The Department of Commerce's National Telecommunications and Information Administration (NTIA) has unveiled the National Broadband Map – purported to be the first public, searchable nationwide map of broadband Internet availability — and the results of a new nationwide survey on broadband adoption. NTIA said the data will support efforts to expand broadband access and adoption in communities at risk of being left behind in the 21st century economy and help businesses and consumers seeking information on their high-speed Internet options. NTIA met the deadline Congress gave the agency to create and launch the National Broadband Map by February 17, 2011. “A state-of-the-art communications infrastructure is essential to America’s competitiveness in the global digital economy,” said Acting Commerce Deputy Secretary Rebecca Blank. “But as Congress recognized, we need better data on America’s broadband Internet capabilities in order to improve them. The National Broadband Map, along with today’s broadband Internet usage study, will inform efforts to enhance broadband Internet access and adoption — spurring greater innovation, economic opportunities, and advancements in health care, education, and public safety.” “The National Broadband Map shows there are still too many people and community institutions lacking the level of broadband service needed to fully participate in the Internet economy. We are pleased to see the increase in broadband adoption last year, particularly in light of the difficult economic environment, but a digital divide remains,” said Assistant Secretary for Communications and Information and NTIA Administrator Lawrence E. Strickling. “Through NTIA’s Broadband Technology Opportunities Program, digital literacy activities, and other initiatives, including the tools we are releasing, the Obama Administration is working to address these challenges.” The map shows that between 5 - 10 percent of Americans lack access to broadband at speeds that support a basic set of applications, including downloading Web pages, photos and video, and using simple video conferencing. The FCC last July set a benchmark of 4 Mbps actual speed downstream and 1 Mbps upstream to support these applications. NTIA collected data in ranges between 3 – 6 Mbps and 6 – 10 Mbps maximum advertised download speeds, which are the closest measurements to the speed benchmark for broadband that the FCC set. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. 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. 2 | February 2011 |
Public Safety Forum On Broadband Interoperability Set For March 4, 2011 The FCC’s Public Safety Homeland Security Bureau’s (PSHSB’s) Emergency Response Interoperability Center (ERIC) will host an Interoperability Forum on Friday, March 4, 2011, from 9:00 a.m. to 3:30 p.m. The forum will be held in the Commission Meeting Room at FCC Headquarters, located at 445 12th Street, SW, Room TW-C305, Washington, DC 20554. The forum will garner input on the technical framework for the nationwide public safety mobile broadband net-work to ensure nationwide interoperability. This network must be technically compatible and fully interoperable from the first day of network deployment in order to serve as the nationwide broadband network envisioned for America’s first responders. The forum will focus on: - Ensuring nationwide interoperability for public safety broadband utilizing 4G technology;
- Solutions for the deployment of Radio Access Network (RAN) equipment to achieve nationwide operability and interoperability; and
- Core network, security and services
The agenda includes the following topics: How to ensure nationwide interoperability for public safety broadband utilizing Long-Term Evolution (LTE) 4G Technology: The FCC has determined that LTE is the technology that will best provide a baseline for required interoperability and operability for public safety broadband communications. This technology enjoys commercial deployments, worldwide 3GPP standards, and a wide ecosystem of devices and network equipment. While the technology builds on a nationwide architecture to deploy the network of networks for public safety, issues impacting interoperability need to be addressed. Solutions for the deployment of Radio Access Net-work equipment to achieve nationwide Operability and Interoperability: To ensure nationwide Interoperability, a minimum level of Operability must be established. Without a minimum level of Operability, public safety user devices may not be supported and nationwide Interoperability will not be accomplished. This panel addresses the deployment of Radio Access Network in Public Safety Broadband networks nationwide, in order to facilitate interoperability and a minimum level of performance for public safety users. Core Network, Security and Services: As the nation-wide interoperable broadband network is built for public safety, a set of security features will help to meet public safety expectations for a reliable and secure communication. Additional nationwide core services such as authentication or application support may be considered with various implementation scenarios. Sharing re-sources between the broadband network and the emerging NG911 system may offer opportunities for additional functionality and cost savings. The workshop will be open to the public; however, registration will be limited to the seating available. Those individuals who are interested in attending the forum may pre-register on-line at http://www.fcc.gov/pshs/event-registration.html. Those who pre-register will be asked to provide their name, title, organization affiliation, and contact information. Individuals may also contact Deandrea Wilson at Deandrea.Wilson@fcc.gov or 202-418-0703 regarding pre-registration. The deadline for pre-registration is Wednesday, March 2, 2011. Interested parties may file comments using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. WVU Gets I/B Pool Waiver For Morgantown Station The FCC has granted a request for waiver, and denied an informal objection, with respect to an application filed by West Virginia University (WVU) for a new centralized trunked Industrial/Business Pool station at Morgantown, West Virginia. Last August, WVU filed an application for authority to use fourteen 150-174 MHz frequencies in and around Morgantown. The applications was granted on September 7, 2010. Enterprise Wireless Alliance (EWA) subsequently re-quested that the Commission restore the application to pending status and return it to the applicant. EWA con-tended that WVU’s proposed use of base frequency 151.6700 MHz did not provide sufficient separation to certain incumbent co-channel stations. The Wireless Telecommunications Bureau’s Mobility Division set aside the grant, and returned the application to allow WVU an opportunity to respond to the matters raised by EWA. On October 26, 2010, WVU amended the application to re-quest a waiver of Section 90.35(c)(6). On October 27, 2010, WVU’s frequency coordinator, Manufacturers Radio Frequency Advisory Committee, Inc. (MRFAC), submitted an engineering analysis indicating that WVU’s proposed use of mobile frequency 157.6800 MHz pro-vides sufficient separation. Sufficient separation. Section 90.187 of the Commission’s Rules specifies the manner in which centralized trunking may be accomplished. Essentially, centralized trunking is not permitted unless the applicant has the consent of any co-channel incumbent whose service con-tour would be overlapped by the applicant’s predicted interference contour. The FCC reviewed the engineering analyses submitted by EWA and MRFAC. In addition, FCC engineering staff conducted an independent analysis, which reached the same conclusion as MRFAC’s study. The FCC therefore agreed with MRFAC that WVU’s predicted interference contour on frequency 157.6800 MHz would not overlap any incumbent’s ser-vice contour. Waiver of Section 90.35(c)(6). Section 90.35(c)(6) re-quires that certain frequencies be paired with a 5.26 megahertz separation between base and mobile transmit frequencies. WVU sought a waiver of this requirement, and proposed to use the frequencies in non-standard pairings. To obtain a waiver of the Commission's Rules, a petitioner must demonstrate either that (i) the underlying purpose of the rule(s) would not be served or would be frustrated by application to the present case and that grant of the waiver would be in the public interest; or (ii) in view of unique or unusual factual circumstances of the instant case, application of the rule(s) would be inequitable, unduly burdensome, or contrary to the public inter-est, or the applicant has no reasonable alternative. The FCC concluded that WVU has demonstrated that its re-quest should be granted under the first prong. The frequencies at issue formerly were allotted to the Taxicab Radio Service. When the Commission consolidated the Taxicab Radio Service into the Industrial/Business Pool, it required that these frequencies be paired only with a 5.26 megahertz separation between base and mobile transmit frequencies in order to ensure compatibility with existing two-frequency simplex taxicab operations. It does not appear that WVU’s proposed operations pose an interference threat to any existing taxicab (or other) operations. The FCC therefore agreed with WVU that the underlying purpose of the rule would not be served by application to the present case. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. FCC Sides With Sprint In Indiana Rebanding Dispute The FCC has sided with Sprint Nextel in a case referred to it for de novo review from Wave 1, Stage 2 mediation by the 800 MHz Transition Administrator (TA) involving a dispute between the State of Indiana and Sprint Nextel regarding a Change Notice submitted by the State. This decision highlights the need for public safety entities to be careful in choosing a contractor to implement any rebanding agreement with Sprint. Indiana operates a trunked public safety radio system with approximately 145 sites and more than 49,000 mo-bile and portable radios serving over 1,500 agencies. The 800 MHz Report & Order and subsequent orders in the rebanding docket require Sprint to negotiate a Frequency Relocation Agreement (FRA) with each 800 MHz licensee that is subject to rebanding. The FRA must pro-vide for retuning of the licensee’s system to its new channel assignments at Sprint’s expense, including the expense of retuning or replacing the licensee’s radio units as required. Sprint must provide the rebanding licensee with “comparable facilities” on the new channel(s), and must provide for a seamless transition to en-able licensee operations to continue without interruption during the retuning process. If the parties cannot reach agreement on a FRA, the case is referred to mediation, and issues that cannot be resolved in mediation are, in turn, referred to the Public Safety and Homeland Security Bureau for de novo review. After a mediation that began in 2006, the Parties executed an FRA which the TA approved on June 16, 2009. The FRA covers the State’s agreed-upon reband-ing costs of approximately $27 million. After the FRA was executed, however, Indiana claimed that Sprint was responsible for paying additional costs, i.e., a $164,907.13 Change Notice for retuning 1,073 new radios that the State deployed without adding replacement frequencies; $100,000 for its vendor to file license applications for the State’s reconfigured system. The FCC concluded the following: - As early as June, 2007, Indiana was aware that newly-deployed radios should be equipped with the post-rebanding frequencies installed.
- Indiana committed to deploy radios equipped with the post-rebanding channels installed once the FRA was executed.
- Indiana had ample time before execution of the FRA to plan and arrange for the deployment of radios with the post-rebanding frequencies installed.
- For 43 days following execution of the FRA the State deployed at least 1,073 radios without the post-rebanding frequencies installed.
- It was foreseeable at the time that the 1,073 radios would later have to be retrieved from their users and reprogrammed to add the post-rebanding frequencies at a cost of $164,907.13.
- Sprint was in no way responsible for the State’s failure to deploy radios equipped with the post-rebanding channels.
The FCC said it may be, as Sprint speculates, that Indiana’s failure to supply the radios with the post-rebanding frequencies installed was attributable to EMR, Indiana’s “general contractor” for the rebanding project. The FCC agreed with Sprint, that, because Indiana chose EMR as its vendor, Indiana is responsible for EMR’s action or inaction, in deploying radios without the post-rebanding frequencies installed. The Commission said the record forces the conclusion that the need to furnish new radios with the post-rebanding channels installed in them was foreseeable by Indiana on more than one occasion, and that Indiana - on clear notice of its obligation to deploy radios programmed with the post-rebanding frequencies - nonetheless failed to do so in the case of 1,073 radios. Accordingly, the FCC found for Sprint on this issue and disallowed the State’s claim for $164.907.13 to provide the radios with a first touch that otherwise would have been unnecessary had the State deployed the radios with the post-rebanding frequencies installed, as it agreed to do. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. FCC Proposes $20K Fine For “Incorrect Factual Info” About Station Construction FCC Rejects “Contractor Error” as an Excuse for Early Construction and Inaccurate Construction Reports The FCC has proposed to fine Cricket Communications, Inc., a Kentucky licensee of fixed point-to-point micro-wave stations, $20,000 for apparent willful violation of section 1.17(a)(2) of the Commission’s rules. The violation involves Cricket’s provision of incorrect material factual information to the Commission regarding the construction of station WQJE535 without a reasonable basis for believing that the information was correct and accurate. The FCC also admonished Cricket for operating stations WQJE535 and WQJF544 for seven months prior to obtaining Commission authority, in violation of section 301 of the Communications Act and section 1.903(a) of the Rules, and directed Cricket to take all necessary and appropriate steps to ensure future compliance. The FCC said that on August 11, 2008, and August 20, 2008, the Wireless Telecommunications Bureau (WTB) issued to Cricket licenses for two fixed point-to-point microwave radio service stations, call signs WQJE535, Midway, Kentucky, and WQJF544, Frankfort, Kentucky, respectively. The deadline for constructing station WQJE535 was February 11, 2010, and the deadline for constructing station WQJF544 was February 20, 2010. Section 1.946 of the Rules requires licensees commencing service or operations within the construction period to notify the Commission by filing FCC Form 601 within 15 days of the expiration of the construction period. On February 2, 2010, Cricket filed a construction notification stating that station WQJE535 was constructed on October 15, 2008. On March 5, 2010, Cricket filed a modification application for station WQJE535 “to correct the construction date provided in its buildout notification and to seek a limited waiver of 47 C.F.R. §1.903 for its inadvertent failure to file an application prior to the construction and operation of the microwave station.” In the modification application, Cricket reported that since filing the buildout notice, it determined that the facility was constructed and placed into operation more than two years earlier, on January 23, 2008. Similarly, on March 5, 2010, Cricket filed a construction notification for station WQJF544 stat-ing that this station was constructed and placed into operation on January 23, 2008. In its construction notification for station WQJF544, Cricket also requested a waiver of section 1.903 of the Rules for failure to file an application before its construction and operation of station WQJF544. On May 5, 2010, WTB denied Cricket’s requests for waiver of section 1.903 of the Commission’s rules, granted its modification application to correct the inaccurate construction date provided for station WQJE535, and accepted the construction notification for station WQJF544. Because Cricket reported an inaccurate construction date and because it appeared that Cricket operated its microwave stations prior to obtaining authority, the WTB referred this case to the Enforcement Bureau for investigation and possible enforcement action. On June 1, 2010, the Enforcement Bureau’s Spectrum Enforcement Division issued a letter of inquiry (LOI) to Cricket. In its July 6, 2010 response to the LOI, Cricket maintained that in the past, it has relied upon outside contractors to build its microwave sites, obtain the required Commission authorizations to operate the sites, and file the associated construction notices. Cricket stated that after a receiving a notification from the Commission regarding the upcoming deadlines for constructing stations WQJE535 and WQJF544 in November of 2009, it dis-covered that its engineering consultant retained in connection with the installation of both facilities had not filed construction notifications for these sites. Cricket asserted that in collecting information in connection with the preparation of the construction notifications for these two stations, Cricket’s personnel were also gathering information on all of its microwave sites to confirm that notifications had been filed for the other sites. According to Cricket, it believes that the construction date for station WQJE535 was misidentified as a result of a clerical error or miscommunications between the employees who were responsible for gathering information for submission in the construction notification. In preparing the construction notification for station WQJF544, Cricket asserted, it discovered that its engineering consultant failed to obtain the required authorization prior to commencing operations, and that an incorrect construction date had been provided for station WQJE535. Cricket averred that immediately upon this discovery, it filed a modification application for station WQJE535 notifying the Commission of the error, and identifying the correct construction and commencement of operation dates as January 23, 2008. Section 1.17 of the Rules states that no person may provide, in any written statement of fact, “material factual information that is incorrect or omit material information that is necessary to prevent any material factual statement that is made from being incorrect or misleading without a reasonable basis for believing that any such material factual statement is correct and not misleading.” Any holder of any Commission authorization is subject to the Rule. In expanding the scope of section 1.17 of the Rules in 2003 to include written statements that are made without a reasonable basis for believing the statement is correct and not misleading, the Commission explained that this requirement was intended to more clear-ly articulate the obligations of persons dealing with the Commission, ensure that they exercise due diligence in preparing written submissions, and enhance the effectiveness of the Commission’s enforcement efforts. Thus, even in the absence of an intent to deceive, a false statement provided without a reasonable basis for believing that the statement is correct and not mis-leading constitutes an actionable violation of section 1.17 of the Rules. As the Commission has stated, parties must “use due diligence in providing information that is correct and not misleading to the Commission, including taking appropriate affirmative steps to determine the truthfulness of what is being submitted. A failure to exercise such reasonable diligence would mean that the party did not have a reasonable basis for believing in the truthfulness of the in-formation.” In the construction notification that Cricket filed on February 2, 2010, it stated that station WQJE535 was constructed on October 15, 2008. As noted above, however, Cricket subsequently filed a modification application correcting the construction date that it had previously provided, and identified the actual construction date as January 23, 2008. The FCC found that, had Cricket exercised even minimal diligence prior to submission of its construction notification, it would not have submitted incorrect and misleading material factual information in its construction notification. Although there is insufficient information to conclude that Cricket’s provision of incorrect material factual information was intentional in violation of section 1.17(a)(1) of the Rules, the FCC found that Cricket apparently willfully violated section 1.17(a)(2) of the Rules by providing material factual information that was incorrect without a reasonable basis for believing that the information was correct and not misleading. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. Lancaster Gets Conditional Waiver To Use Broadcast Spectrum For Public Safety Interoperability The FCC has conditionally granted the County of Lan-caster, Pennsylvania, its request for waiver to use certain non-public safety frequencies for public safety communications. Lancaster sought waiver to operate a land mo-bile public safety communications system on frequencies in the television (TV) Channel 15 band (476-482 MHz). In the alternative, Lancaster requested the same waiver relief pursuant to Section 1.925 of the Commission’s rules. The FCC conditionally granted the request under Section 337(c) of the Communications Act, which gives public safety entities the opportunity to obtain non-safety pool spectrum if they can show adequate public safety spectrum is not available and existing licensees will not be harmed. Lancaster’s current public safety radio system “consists of a mix of low band VHF, high band VHF, UHF, and 800 MHz radio equipment.” Lancaster sought to upgrade its system by building a multi-site, trunked system and consolidating its operations in the UHF band. Lancaster noted that while the existing multi-band system makes “county-wide interoperability nearly impossible,” consolidation in a single band will support interoperability among the various departments and agencies in the county. The FCC found that Lancaster meets the statutory criteria of Section 337(c) of the Act. Accordingly, it granted Lancaster’s waiver request with the following conditions: (1) Lancaster County will provide existing licensees Tele, Pennsylvania State University (the University), and WTSD-CA no less than 30 days’ prior written notice of the date on which it intends to commence service on the Facilities. (2) Lancaster accepts and agrees that all usage of the Facilities shall be within the geographic boundaries of Lancaster County. (3) Lancaster County’s Facilities are located closer to WFDC and WTSD-CA than would normally be permitted by the FCC Rules and as such its Facilities are secondary to WFDC, WTSD-CA, and WTSD-CA’s future DTV operations and subject to interference from WFDC and WTSD-CA through no fault of the respective TV licensees. (4) Lancaster County shall eliminate any interference caused by the Facilities to WFDC, WPSU, and WTSD-CA’s viewers located within their protected service con-tours, as they currently are or hereafter may be deter-mined pursuant to the Stations’ authorized facilities and the rules and regulations of the FCC (“Protected Service Contour”). Accordingly, Lancaster County shall make an immediate reduction, suspension or termination of ser-vice by the Facilities to the extent necessary to eliminate interference within the WFDC, WPSU, and WTSD-CA Protected Service Contours. (5) As indicated in Telefutura and the University’s concurrence letters, Telefutura and the University may modify the technical facilities of WFDC or WPSU, respectively, in any way they deem necessary, including, but not limited to, changes in effective radiated power; antenna height; antenna polarization including elliptical or circular polarization; transmitter location; and including, without limitation, constructing and deploying a distributed transmission system, at any time and without regard to predicted or actual interference to the Facilities, subject only to written notice by Telefutura or the University to Lancaster County at least 30 days prior to activation of any such facilities or system. (6) Notwithstanding the above conditions, Lancaster County must eliminate any interference caused by the its Facilities to viewers located within the protected service contour of any existing full power or Class A TV or DTV station, including the facilities of File No. BDISDTL-20101203ABC (W36DO-D) in the event that Media Bureau grants the application, consistent with the Commission’s rules. Lancaster County shall make an immediate reduction, suspension or termination of service by the Facilities to the extent necessary to eliminate such interference. (7) Lancaster’s operations otherwise shall be primary with respect to future TV stations as follows: (a) full pow-er DTV applicants seeking to use TV Channel 15 may not locate transmitters within 170 kilometers of Lancaster’s fixed base station coordinates as indicated on the captioned applications or within 250 km of the New York City center coordinates in accordance with 47 C.F.R. § 73.623(e); (b) full power DTV applicants seeking to use TV Channels 14 or 16 may not locate transmitters within 96 kilometers of Lancaster’s fixed base station coordinates as indicated on the captioned applications or within 250 km of the New York City center coordinates in accordance with the rules; (c) a low power TV or TV translator station application will not be accepted if it specifies Channel 15 and its field strength at the Lancaster County border exceeds 52 dBu; and (d) a low power TV or TV translator station application will not be accepted if it specifies TV Channels 14 or 16 and its field strength at the Lancaster County border exceeds 72 dBu. (8) Lancaster shall cancel its 800 MHz licenses (call signs WNRU581, WPZC615, WPZI240, WPZL299, WPZR685, WQAC254, WQBH524, WQCC491, WQCC879, and WQEC735) within 45 days after Lancaster files its first construction notification in any of the call signs based on File Nos. 0003458819, 0003458876, and 0003458877.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. FCC Clamps Down On Sale Of Illegal Cellphone, GPS Jamming Devices The FCC Enforcement Bureau has announced new efforts to clamp down on the marketing, sale, and use of illegal cellphone and GPS jamming devices. Since virtually all cell jamming devices are prohibited by the FCC’s rules for use in the United States, any company using these devices, even for “legitimate” purposes, are at risk for FCC enforcement action. The Bureau released two Enforcement Advisories and a downloadable poster on cellphone and GPS jamming that warn consumers, manufacturers, and retailers (including online and Web-only companies) that the market-ing, sale, or use of cell, GPS, and other jamming devices is illegal. These steps highlight a new outreach phase of the Bureau’s continuing effort to halt the distribution and proliferation of illegal jamming devices in the United States. In the last two weeks, the Bureau issued warnings to four well-known online retailers – including the company that markets the TxTStopper™ – directing them to cease marketing jamming devices to customers in the U.S. or face stiff fines. “Jamming devices create serious safety risks,” said Michele Ellison, Chief of the FCC’s Enforcement Bureau. In the coming weeks and months, we’ll be intensifying our efforts through -partnerships with law enforcement agencies to crack down on those who continue to violate the law. Through education, outreach, and aggressive enforcement, we’re tackling this problem head on.” Ellison said, “While people who use jammers may think they are only silencing disruptive conversations or disabling unwanted GPS capabilities, they could also be pre-venting a scared teenager from calling 9-1-1, an elderly person from placing an urgent call to a doctor, or a res-cue team from homing in on the location of a severely injured person. The price for one person's moment of peace or privacy, could be the safety and well-being of others.” Jamming devices are radio frequency transmitters that intentionally block, jam, or interfere with lawful communications, such as cell phone calls, text messages, GPS systems, and Wi-Fi networks. Increasingly, online retail-ers tout small, inexpensive jammers as the solution for noisy classrooms, theaters, restaurants, or business meetings. However, jammers are indiscriminate – they can block critical public safety and other emergency communications along with the targeted transmissions. As such, jammers are illegal to market, sell, or use in the United States. A single violation of the jamming prohibition can result in tens of thousands of dollars in monetary penalties, seizure of the illegal device, and imprisonment. The FCC is working with private industry on alternative technologies that do not cause interference to legitimate cell phone users, to take the place of illegal jammers. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. FCC Seeks Comment On Use Of Mutual Aid Channels On September 24, 2009, and November 25, 2009, respectively, the 800 MHz Regional Planning Committee 55 and the National Regional Planning Council filed petitions for rulemaking seeking amendment of the FCC’s rules to permit continued use of the former NPSPAC Mutual Aid Channels in the 821-824 MHz/866-869 MHz segment of the 800 MHz. band in the Canada/United States border area. Petitioners submit that continued use of the NPSPAC Mutual Aid channels after 800 MHz rebanding is complete will comport with international agreements and is necessary for international public safety mutual aid in the Canada Border Region (CBR). Specifically, Petitioners request that the Commission amend Section 90.619 of its rules to permit the former NPSPAC Mutual Aid channels to be used by public safety eligible entities throughout CBR 1-6 and that Enhanced Mobile Radio System (ESMR) licensees protect the use of these channels in the CBR. To determine whether Petitioners’ proposals merit issuance of a Notice of Proposed Rule Making, the Public Safety and Homeland Security Bureau seeks public comment on the following: - Should use of the former NPSPAC Mutual Aid channels, if allowed, include only mobile/portable use or should use by infrastructure (base stations) be permitted as well?
- The area in which ESMR licensees could expect objectionable interference from operations on the former NPSPAC Mutual Aid channels in the CBR. Include the standards used to determine objectionable interference.
- The area, if any, within which users of the former NPSPAC Mutual Aid channels could expect objectionable interference from ESMR licensees operating pursuant to the current rules. Include the standards used to determine objectionable interference.
- The economic and other effects on ESMR licensees and subscribers if ESMR systems were required to protect users of the former NPSPAC Mutual Aid channels.
- Whether, if allowed, operations on the former NPSPAC Mutual Aid channels should be permit-ted in the entire CBR 1-6 and, if not, the area in which such operations should be permitted.
- Whether, if allowed, operations on the former NPSPAC Mutual Aid channels in the CBR should be permitted on all five such channels or some smaller number.
- Whether, if allowed, operations on the former NPSPAC Mutual Aid channels should be limited to portable units with power output no greater than 4 watts.
- Whether, if allowed, operations on the former NPSPAC Mutual Aid channels in the CBR should be permitted on a day-to-day basis or limited to international emergencies affecting the safety of life or property. If the latter, which agency or agencies should be authorized to declare such an emergency?
- Whether there are alternatives to the use of the former NPSPAC Mutual Aid channels in the CBR that would serve the same or essentially the same purpose and, if so, the nature and cost of such alternatives.
- Whether or not Canadian public safety agencies have expressed interest in using the former NPSPAC Mutual Aid channels to communicate with counterpart agencies in the U.S. within the CBR and, if so, the identity of such public safety agencies and the person at such public safety agencies expressing the interest.
Comments in this WT Docket No. 02-55 proceeding are due March 29.
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. |
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Every week, some operator is launching some supposedly game-changing device—a smartphone with new hardware bells or application whistles that will move mobile data services light years forward. I’m usually skeptical about such claims, but this week we might actually see the real things with two much anticipated device launches. 
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