 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. 27 | July 6, 2011 |
FCC Releases “Sunshine” Agenda For July 12 Open Meeting The FCC has released the “Sunshine Agenda” for its July 12 open meeting. The Commission will consider the following items: - A Notice of Proposed Rule Making (NPRM) seeking comment on the impact of the Local Community Radio Act on the future licensing of low power FM and FM translator stations.
- An NPRM designed to empower consumers to prevent and detect unauthorized telephone bill charges (“mystery fees” or “cramming”) by improving the disclosure of third-party charges on telephone bills. (See BloostonLaw Telecom Update, June 22.)
- A Report and Order enabling a more effective emergency response system by ensuring that 911 call centers continue to receive precise wireless E911 location information and a Second Further Notice of Proposed Rule-making seeking to improve E911 location accuracy and reliability for existing and new voice communications technologies, including Voice over Internet Protocol (VoIP).
BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast. |
INSIDE THIS ISSUE - Advisory clarifies complying with FCC’s Open Internet “Transparency Rule.”
- Comments sought on Tech Work Group proposals for LightSquared/GPS issues.
- LMCC asks FCC to consider public safety, others when granting T-Band waivers.
- FCC extends comment deadlines for implementing CALM Act.
- FCC releases 15th annual report on wireless market.
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Advisory Clarifies Complying With FCC’s Open Internet “Transparency Rule” The FCC’s Enforcement Bureau and Office of General Counsel have issued a Public Notice to offer initial guidance regarding specific methods of disclosure that will be considered to comply with the transparency rule adopted in the Commission’s Open Internet Order (BloostonLaw Telecom Update, December 22, 2010). The FCC said such guidance is intended for broadband providers seeking additional clarification about disclosure practices that will satisfy this Open Internet or “Net Neutrality” rule when it becomes effective. The FCC said that the alternatives described in its Public Notice are examples of approaches to disclosure that would satisfy the transparency rule; broadband providers may implement alternative approaches that disclose information sufficient to adequately inform consumers and relevant third parties. The Commission said it may provide additional guidance in the future. In the Open Internet Order, the Commission concluded that effective disclosure of broadband providers’ network management practices increases “the likelihood that broadband providers will abide by open Internet principles,” enables the Internet community and the FCC to identify and address open Internet violations, and correspondingly increases “the chances that harmful practices will not occur.” For example, information about performance metrics such as broadband speed and latency can help consumers and others identify situations in which access to a particular website or application may have been slowed if the speed or latency experienced in accessing that website or application is consistently and significantly worse than the disclosed speed or latency for the broadband service, the FCC said. The Commission also found that disclosure of network management practices and the performance and commercial terms of broadband services empowers consumers and promotes competition and investment, further reducing broadband providers’ incentives and ability to engage in harmful conduct. To achieve these objectives, the Commission adopted the following transparency rule: A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.
The Commission stated that “effective disclosures will likely include” information concerning “some or all” of the following topics: (1) network practices, including congestion management, application-specific behavior, device attachment rules, and security measures; (2) performance characteristics, including a general description of system performance and the effects of specialized services, if any, on available capacity; and (3) commercial terms, including pricing, privacy policies, and redress options. Rather than providing an exhaustive list of topics that should be included in disclosures, the Commission concluded that “the best approach is to allow flexibility in implementation of the transparency rule, while providing guidance concerning effective disclosure models.” The FCC’s Public Notice offers guidance in five specific areas: 1. Point-of-Sale Disclosures. The Open Internet Order requires broadband providers to disclose network management practices, performance characteristics, and commercial terms “at the point of sale.” The FCC clarified that the Order does not compel the distribution of disclosure materials in hard copy or extensive training of sales employees to provide the disclosures themselves. Broadband providers can comply with the point-of-sale requirement by, for instance, directing prospective customers at the point of sale, orally and/or prominently in writing, to a web address at which the required disclosures are clearly posted and appropriately updated, the FCC said. It added that the address provided should enable consumers easily to find the disclosures, rather than, for example, leading to a broadband provider’s general purpose home page from which the disclosures are not clearly and readily accessible. At brick-and-mortar retail outlets (i.e., not telephone or Internet sales centers), broadband providers that rely on a web page for point-of-sale disclosure should make available equipment, such as a computer, tablet, or smart-phone, through which customers can access the disclosures. 2. Service Description. The Open Internet Order requires broadband providers to disclose accurate information regarding network performance for each broadband service they offer. The FCC noted that it has launched a broadband performance measurement project to accurately measure key performance metrics, including baseline connection speed and latency. The Commission said it expects initial results of the project to be finalized and publicly released before the open Internet rules become effective. The FCC said it will provide further guidance on this issue. A. Fixed Broadband. To satisfy their obligations under the transparency rule, the 13 fixed broadband providers that chose to participate in the broadband performance measurement project—which together account for approximately 86% of all residential fixed broadband connections in the U.S.—may disclose their results from the project as a sufficient representation of the actual performance their customers can expect to experience. For example, for a particular tier of service, a broadband provider could disclose data from the project showing the mean upload and download speeds in megabits per second during the “busy hour” between 7:00 p.m. and 11:00 p.m. on weeknights. Similarly, broadband providers could report mean roundtrip latency during this time period. Providers that have not participated in the performance measurement project to date may use the methodology developed through the project—which will be released along with the project’s initial results—to measure the actual performance of their broadband offerings. Alternatively, a broadband provider may disclose actual performance based on internal testing; consumer speed test data; or other data regarding network performance, including reliable, relevant data from third-party sources such as the broadband performance measurement project. B. Mobile Broadband. The Commission has recognized that measuring performance can be more challenging for mobile broadband than for fixed, and is in the process of obtaining data regarding mobile broadband performance that will help facilitate mobile broadband providers’ disclosure of actual performance, as the broadband performance measurement project data will do for fixed services. Once that data has been reviewed, the FCC will provide further guidance regarding specific methods of disclosing performance information. Until then, mobile broadband providers that have access to reliable information on network performance may disclose the results of their own or third-party testing; many mobile providers routinely receive such performance data. This disclosure could include mean upload and download speeds in megabits per second and mean roundtrip latency. The FCC said it recognizes that some mobile broadband providers, particularly small providers, may not have or reasonably be able to obtain reliable information on their network performance metrics such as mean upload and download speeds. Such a provider that lacks reasonable access to this network performance information may disclose a Typical Speed Range (TSR) representing the range of speeds and latency that can be expected by most of their customers, for each technology/service tier offered, along with a statement that such information is the best approximation available to the broadband provider of the actual speeds and latency experienced by its subscribers. For example, they could disclose that their 3G offerings typically provide download speeds between X and Y kilobits per second. The FCC encourages fixed and mobile providers to disclose the source of their performance measurements and the underlying methodology used to evaluate performance. The agency expects fixed and mobile broadband providers to reevaluate their performance disclosures whenever they know or have reason to believe that the actual performance of their services has come to differ materially from the performance reported in their disclosures.
3. Extent of Required Disclosures. Because the Open Internet Order states that its list of potential disclosure topics “is not necessarily exhaustive,” some broadband providers have expressed concerns that they could be liable for failing to disclose additional types of information that they may not be aware are subject to disclosure. The FCC clarified that disclosure of the information specifically identified in paragraphs 56 and 98 of the Open Internet Order will suffice for compliance with the transparency rule at this time. 4. Content, Applications, Service, and Device Providers. The transparency rule requires broadband providers to disclose accurate information sufficient for “content, application, service, and device providers to develop, market, and maintain Internet offerings.” The FCC said it anticipates that broadband providers with consumer disclosures that include sufficiently detailed information regarding network management practices to enable a technologically sophisticated Internet user to understand how such network management practices work, and how they affect consumers’ access to and use of Internet offerings, will not need to make separate or additional disclosures for the specific benefit of edge providers. This in no way alters the obligation of mobile broadband providers to disclose their certification and approval processes for devices and applications, if any, the FCC said. 5. Security Measures. The FCC said it expects broadband providers to use sound judgment in deciding whether it is necessary and appropriate to disclose particular security measures. In making that determination, the touchstone is that providers must disclose information “sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.” In this regard, the FCC said it would expect broadband providers to disclose security measures intended to prevent the spread of viruses, malware, spam, or other threats to consumers that also prevented end users from running a mail server or web server using their broadband connection. But the FCC would not expect providers to disclose internal network security measures, such as routing security practices that do not directly bear on a consumer’s choices.
In a related matter, Senators John Kerry (D-Mass.), Chairman of the Subcommittee on Communications, Technology, and the Internet, and John D. (Jay) Rockefeller IV (D-W.Va.), Chairman of the Commerce Committee, along with eight senior Committee members, have opposed efforts to cut funding to secure an open Internet. In a letter to the Chairman and Ranking Member of the Senate Appropriations Committee, Kerry and his colleagues opposed any appropriations rider or other action that would deny the FCC the funds or ability to implement open Internet rules for the nation’s broadband infrastructure approved last year. The House of Representatives recently voted to defund the FCC’s ability to put those rules into effect. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. Comment Sought On Tech Work Group Proposals For LightSquared/GPS Issues The FCC has asked for comment on the final report submitted by the technical working group co-chaired by LightSquared and the United States Global Positioning System (GPS) Industry Council (USGIC). The FCC had required that LightSquared help organize and participate in a technical working group “that brings LightSquared and the GPS community together” to address potential interference issues recently raised by members of the GPS community. The final report includes the working group’s analyses of the potential for overload interference to GPS devices from LightSquared’s terrestrial network of base stations, technical and operational steps to avoid any such interference, and specific recommendations going forward to mitigate potential interference to GPS devices. According to the FCC, the technical working group effort identified significant technical issues related to potential LightSquared operations in the upper portion of the L-Band, which is most proximate to the band used by GPS. Over more than three months, the technical working group tested more than 130 representative devices in seven different receiver categories, in a number of different test environments. The tests demonstrated potentially significant interference between LightSquared operations in the upper portion of the band and various GPS receivers. The tests also identified some interference issues in the lower 10 MHz portion of the band. The overall conclusion of the testing is that transmissions in the upper 10 MHz channel — the channel nearest to the 1559-1610 MHz GPS band — will adversely affect the performance of a significant number of legacy GPS receivers. In addition to the technical working group report, LightSquared has submitted its recommendations to address the problems identified by the working group. In particular, LightSquared indicates its willingness to: (1) operate at lower power than permitted by its existing FCC authorization; (2) agree to a “standstill” in the terrestrial use of its Upper 10 MHz frequencies immediately adjacent to the GPS band; and (3) commence terrestrial commercial operations only on the lower 10 MHz portion of its spectrum and to coordinate and share the cost of underwriting a workable solution for the small number of legacy precision measurement devices that may be at risk. The FCC specifically invites comment on these recommendations, including any alternative proposals to enable these two important services – GPS devices and L-band mobile broadband – to co-exist. The FCC also said it welcomes comments on the technical working group report generally. Comments in this IB Docket No. 11-109 proceeding are due July 30, and replies are due August 15. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell. LMCC Asks FCC To Consider Public Safety, Others When Granting T-Band Waivers In order to find radio spectrum for the burgeoning demand for broadband communications, the FCC is examining number of possible sources for broadband spectrum, including TV spectrum. Several rule waivers the FCC recently granted to public safety entities for operations in the 470-512 MHz band (T-Band), which falls on TV channels 14-20, have included language indicating that the FCC was considering ways to repurpose TV bands, including the 470-512 MHz band, for flexible use, including commercial mobile broadband. In granting the waivers, the FCC strongly urged public safety entities contemplating future waivers for TV and other non-public safety to consider use of the 700 MHz band to meet their public safety needs. Implicit in the FCC Order granting the waivers is that the FCC was looking at the T-band spectrum for some of the spectrum needed for future broadband use. If so, the FCC may decide to use some of the T-Band spectrum for broadband. It is unclear what would happen to existing T-Band licensees if that happens. However, the Land Mobile Communications Council (LMCC) has sent a letter to FCC Chairman Julius Genachowski, urging the FCC to consider the very significant investments that have been made in non-broadband communications equipment and applications that are being used in the effective operation of public safety, critical infrastructure and other business activities in the T-Band. The LMCC noted that the T-Band is intensively used and essential spectrum for this part of the wireless community. There is no indication at this time that the FCC may be considering a mandatory relocation for existing T-Band systems, but licensees should carefully watch FCC proposals for this spectrum. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. FCC EXTENDS COMMENT DEADLINES REGARDING IMPLEMENTATION OF CALM ACT: The FCC has extended the comment deadlines for its Notice of Proposed Rulemaking (NPRM), seeking public comment on its proposed rules to implement the Commercial Advertisement Loudness Mitigation (CALM) Act. Comments in this MB Docket No. 11-93 proceeding are now due July 8, and replies are due July 21. Among other things, the CALM Act directs the Commission to incorporate into its rules by reference and make mandatory a technical standard developed by an industry standard-setting body that is designed to prevent television commercial advertisements from being transmitted at louder volumes than the program material they accompany (Blooston Telecom Update, June 1 and 8). BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. FCC RELEASES 15th ANNUAL REPORT ON WIRELESS MARKET: The FCC has released its 15th Annual Report on the state of competition in the wireless industry. The report updates the data and analysis presented in last year’s report, and analyzes mobile wireless service market conditions during 2009 and 2010, including “competitive market conditions with respect to commercial mobile services” as required by the Communications Act. Like last year’s report, the 15th Report presents a multitude of industry data on various aspects of mobile wireless competition. Consistent with the Commission’s first seven Annual Commercial Mobile Radio Service (CMRS) Competition Reports, the 15th Report does not reach an overall conclusion regarding whether or not the CMRS marketplace is effectively competitive, but provides an analysis and description of the CMRS industry’s competitive metrics and trends. Thus, the 15th Report makes no formal finding as to whether there is, or is not, effective competition in the industry. Rather, given the complexity of the various inter-related segments and services within the mobile wireless ecosystem, the 15th Report focuses on presenting the best data available on competition throughout this sector of the economy and highlighting several key trends in the mobile wireless industry. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell. FCC SAYS IN COURT BRIEF THAT ALL BUSINESS LINE COUNTS SHOULD INCLUDE UNE LOOPS: Responding to an invitation from the 10th U.S. Circuit Court of Appeals in Denver, the FCC filed an amicus curiae (friend of the court) brief in Qwest v. Colorado Public Utilities Commission, a case involving Federal rules requiring incumbent local exchange carriers (ILECs) to lease certain parts of their telecommunications networks to competitive local exchange carriers (CLECs) on an un-bundled basis, in order to facilitate competition in the local telephone service market (BloostonLaw Telecom Update, June 15). The court noted that ILECs are relieved of this obligation if the number of “business lines” in a wire center reaches a certain threshold. The term “business line” and the method of determining the number of business lines in a wire center are defined in 47 C.F.R. § 51.5. The parties offer differing interpretations of that regulation. In particular, they disagree as to which un-bundled network element (UNE) loops are included in a wire center’s business line count. The defendants have asked the 10th Circuit to refer this matter to the FCC pursuant to the doctrine of primary jurisdiction. The Court had asked the FCC to address the following questions: (1) Does the business line count in 47 C.F.R. § 51.5 include only UNE [i.e., unbundled network element] loops that serve business customers; and (2) Does the business line count in 47 C.F.R. § 51.5 include only UNE loops that are connected to switches? The FCC said it interprets section 51.5 to require the inclusion in the business line counts of all UNE loops, including UNE loops that serve residential customers and those that are not connected to switches. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. FCC AGAIN REJECTS NORTHERN VALLEY’s TARIFF REVISIONS: The FCC has rejected Northern Valley Communications, LLC’s Transmittal No. 5 to its revisions to its FCC Tariff No. 3. The revisions were filed to revise certain tariff definitions in response to the Commission’s Qwest v. Northern Valley order (BloostonLaw Telecom Update, June 15). The proposed tariff was scheduled to become effective on June 29, 2011. Because the tariff revisions do not comply with the requirements of the Qwest v. Northern Valley decision, the FCC rejected Transmittal No. 5 as patently unlawful, in violation of the Commission’s order, section 61.2 of the Commission’s rules, and section 201(b) of the Communications Act. The FCC said that Northern Valley’s tariff revisions modified two definitions in its FCC Tariff No. 3, “End User” and “Customer of an Interstate or Foreign Telecommunications Service,” in response to the Commission’s Qwest v. Northern Valley order. In the Qwest v. Northern Valley order, the Commission concluded that, to the extent Northern Valley’s then effective tariff purported to charge for providing access to individuals or entities to whom Northern Valley offered its services for free, it impermissibly charged for services that were not being offered to “end users” and thus were not the “functional equivalent” of ILEC services. Accordingly, the Commission found that Northern Valley’s tariff violated Commission rules and orders and required Northern Valley to revise its tariff “to provide that interstate switched access charges will apply only to the origination or termination of calls to or from an individual or entity to whom Northern Valley offers telecommunications services for a fee,” because only those customers can qualify as “its own end users.” In its filed tariff revisions, Northern Valley modifies two definitions. Northern Valley modified its definition of “Customer of an Interstate or Foreign Telecommunications Service” by deleting the phrase “without regard to whether and how much payment is tendered to either the Company or the Buyer for interstate or foreign Telecommunications service” and replaced it with “for a fee.” Northern Valley revised its definition of “End User” by deleting the final sentence in the definition, which read: “[a]n End User need not purchase any service provided by the Company.” On June 27, 2011, Northern Valley filed a reply responding to several petitions to reject or suspend its tariff. In Qwest v. Northern Valley, the Commission found that Northern Valley could only assess the tariffed benchmark switched access rate if it “provides an IXC with access to [Northern Valley’s] own end users.” The Commission explained that Northern Valley’s “own end users” are customers to whom Northern Valley offers “its services for a fee.” Petitioners asserted that Northern Valley’s tariff revisions, although removing explicit statements that Northern Valley “customers” need pay nothing to Northern Valley, nonetheless fail to establish that in fact Northern Valley will be charging its end users a fee for any service. In its reply, Northern Valley explained, correctly, that it understands the Qwest v. Northern Valley Order as requiring “that its End Users must pay Northern Valley a fee for telecommunications services.” Although this is what the Commission found in Qwest v. Northern Valley, Northern Valley’s tariff revisions do not make this clear. As such, Northern Valley has not remedied the deficiencies found in its tariff by the Commission in Qwest v. Northern Valley and thus is in violation of that order and its tariff revisions are unlawful, the FCC said. When Northern Valley re-files its tariff to comply with the Commission’s order, the agency said it encourages it to work with its intended carrier-customers to resolve their concerns before filing a new tariff. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. COMMENT SOUGHT ON SPRINT-NEXTEL REQUEST FOR WIDEBAND OPERATIONS IN 800 MHz BAND: The FCC has asked for comment on Sprint Nextel’s Petition for Declaratory Ruling that the Commission’s rules permit larger than 25 kHz bandwidth operations in the 800 MHz Enhanced Specialized Mobile Radio Service (ESMR) bands (817 – 824 MHz/862 – 869 MHz). As an alternative, Sprint Nextel requested the Petition be treated as a Petition for Rulemaking to revise Section 90.209 to the extent necessary to expressly authorize ESMR band Economic Area (EA) licensees to deploy technologies using bandwidths greater than 25 kHz on their contiguous spectrum assignments. Sprint Nextel contended that there is an apparent incongruity between Section 90.209 of the Commission's Rules, which restricts 800 MHz channels to a maximum bandwidth of 25 kHz, and the more narrowly-focused provision in Subpart S of Part 90, Section 90.691 of the Commission's rules, which it believes to allow wider bandwidth operations on contiguous channel EA licenses, so long as such operations conform to the Commission's out-of-band emission requirements. Sprint Nextel holds geographically-licensed ESMR licenses with sufficient contiguous 800 MHz channels to accommodate wideband technology options, such as 1.25 MHz CDMA equipment. It plans to incorporate the 800 MHz ESMR spectrum into Sprint’s existing CDMA network which will result in improved coverage, increase capacity, and increased broadband data speeds. However, Sprint Nextel sought clarification of the Commission’s rules or, in the alternative, a change of the rules, to ensure that the 25 kHz channel limitation in Section 90.209 does not apply to ESMR licenses with contiguous spectrum sufficient to accommodate wideband technologies. Sprint Nextel stated that such a clarification would further Congressional intent under the Omnibus Budget Reconciliation Act of 1993 (OBRA 93) by creating regulatory parity among commercial licensees in the 800 MHz, Cellular, and PCS spectrum allocations. Sprint Nextel contended that a review of recent Commission decisions for the 800 MHz band reveals that the Commission intended to allow wideband technologies in the ESMR bands, but Section 90.209 was never updated to reflect the changes in Subpart S of Part 90. Comments in this WT Docket No. 11-10 proceeding are due August 1, and replies are due August 16. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. FCC ADOPTS PER-MINUTE COMPENSATION RATES FOR TRS FUND: The FCC has adopted per-minute compensation rates to be paid from the Interstate TRS Fund for the 2011-12 Fund year for all forms of telecommunications relay services (TRS). Except for the rates for video relay service (VRS), these rates are based on the proposals of the current Fund administrator, the National Exchange Carrier Association (NECA). For VRS, the FCC adopted, until further notice, the current interim rates that were adopted for the 2010-11 Fund year. The e VRS rates will be in effect on an interim basis until the Commission completes its examination of VRS rates and compensation as part of the 2010 VRS NOI proceeding. Thus, as of July 1, 2011, the per-minute rates for TRS shall be: $1.8611 for interstate traditional TRS; $2.9921 for Speech-to-Speech (STS) service; $1.7630 for captioned telephone service (CTS) and IP CTS; and $1.2920 for IP Relay. The interim rates for VRS shall continue to be: $6.2390 for Tier I, $6.2335 for Tier II, and $5.0668 for Tier III. Based on the adoption of these rates and NECA’s proposals for additional funding requirements, the Commission adopted a carrier contribution factor of 0.01058, and a funding requirement of $740,399,393.56 for the 2011-12 Fund year. The 2011-12 Fund year encompasses the period of July 1, 2011 through June 30, 2012. BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. WISCONSIN CONGRESSIONAL DELEGATION EXPRESSES CONCERN OVER FCC’s USF/ICC REFORM PROPOSALS: Six Wisconsin congressmen have sent FCC Chairman Julius Genachowski a letter, expressing concern about the Commission’s proposals to reform the Universal Service Fund (USF) and the intercarrier compensation (ICC) system. The lawmakers said the proposals “seem to discount or disregard altogether the great strides that so many rural cooperatives and small commercial communications providers have made in using valuable USF and ICC resources to provide outstanding service in remote, hard-to-reach, and high-cost areas of rural America. We must build on this successful model rather than seeking to dismantle it. Doing anything less will do a disservice to our constituents, make rural economic development initiatives more difficult, and put a large amount of Rural Utilities Service (RUS) loan portfolio—taxpayer money—at great risk.” The lawmakers urged the FCC to “carefully consider the harm any specific proposal will cause to all rural consumers in [Wisconsin], and to explain how any decision you make achieves the twin goals of both keeping broadband where it is today and promoting more widespread availability.” The six lawmakers are Ron Kind (D), Herb Kohl (D), Tom Petri (R), Jim Sensenbrenner (R), Sean Duffy (R), and Reid Ribble (R). BloostonLaw contacts: Ben Dickens, Gerry Duffy, and Mary Sisak. FCC DENIES AT&T PETITION TO REJECT FOUR ACCESS CHARGE TARIFFS: The FCC’s Pricing Policy Division of the Wireline Competition Bureau (WCB) has denied AT&T’s petition to reject or to suspend and investigate the tariff transmittals of Geneseo Telephone Company, Ironton Telephone Company, NTELOS Telephone Inc., and the City of Brookings Municipal Telephone Department. Based on its review, the Division concluded that AT&T had not presented compelling arguments that these transmittals are so patently unlawful as to require rejection. Similarly, the Division concluded that AT&T had not presented issues regarding the transmittals that raise significant questions of lawfulness that require investigation of the tariff transmittals. Accordingly, the Division denied AT&T’s petition to reject or suspend and investigate the following tariff transmittals: Geneseo (Transmittal No. 15, Tariff F.C.C. No. 1); Ironton (Transmittal No. 99, Tariff F.C.C. No. 2); NTELOS (Transmittal No. 99, Tariff F.C.C. No. 2); and Brookings (Transmittal No. 19, Tariff F.C.C. No. 2). Thus, the tariff transmittals became effective July 1. 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 |
Senate Panel OKs Public Safety Communications Bill The Senate Commerce Committee has voted 21-4 to approve the Public Safety Spectrum and Wireless Innovation Act (S. 911). The legislation was introduced by committee Chairman John D. Rockefeller IV (D–W.Va.) and Ranking Member Kay Bailey Hutchison (R–Texas). Key provisions of the legislation include: - Establishing a framework for the deployment of a nationwide, interoperable, wireless broadband network for public safety.
- Allocating 10 MHz of spectrum, known as the “D-block,” to public safety.
- Directing the FCC to establish standards that allow public safety officials, when not using the network, to lease capacity on a secondary but pre-emptible basis to non-public safety entities.
- Providing the Commission with incentive auction authority, which allows existing spectrum licensees to voluntarily relinquish their airwaves in exchange for a portion of the proceeds of the commercial auction of their spectrum.
- Directing the National Science Foundation and the National Institute of Standards and Technology to conduct cutting-edge research into transformative wireless technologies.
- Directing surplus revenue from spectrum auctions, estimated to be more than $10 billion, to the U.S. Treasury for deficit reduction.
BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell. |
LightSquared Announces Plan to Avoid Interference to GPS, Deal with Sprint PCS In the face of significant opposition, LightSquared Subsidiary LLC has announced that it will move its operations to a portion of the satellite band spectrum that is not immediately adjacent to GPS operations, to implement a more meaningful avoidance of interference to GPS, according to Fierce Wireless and other sources. At the same time, LightSquared announced that it has reached a network sharing agreement with Sprint PCS. Fierce Wireless reports that a letter from LightSquared backer Harbinger Capital partners indicates LightSquared and Sprint will jointly develop, deploy and operate LightSquared's LTE network, and Sprint will become a significant customer of the network. Representatives of numerous industries (including the GPS Industry Council, the Alarm Industry Communications Committee and John Deere, among others) have opposed the FCC’s grant of authority for LightSquared to operate a terrestrial wireless system in the L-Band, a portion of the spectrum in which GPS satellites also operate. LightSquared originally planned to deploy its system (with 40,000 transmitters) directly adjacent to GPS bands. The company claimed it has developed filters to stop its signal from bleeding into GPS service, but many major GPS stakeholders, including the Defense Department, fear that widespread GPS dead zones are inevitable if LightSquared’s network goes live. This concern was only bolstered by a June 1 article in the Wall Street Journal indicating that interference is being encountered up to 22 miles from LightSquared’s New Mexico test operation. The proposal of LightSquared to move its operation to a portion of its spectrum that is further removed from the GPS spectrum may help to address the interference concerns, clearing the path for LightSquared to become a more significant competitive force in the marketplace. Its deal with Sprint will further LightSquared’s position as both a source of wholesale service and a competitive threat to smaller wireless carriers. In the meantime, the FCC has invited public comment on the June 30 Report of the Interference Working Group chaired by LightSquared and the GPS Industry Council, to examine the interference issues raised by protesters against LightSquared’s proposed system. Comments on the report are due on July 30, and reply comments are due on August 15. House Panel Wants Proof LightSquared’s System Will Not Interfere With GPS Devices The House Appropriations Committee has approved an amendment to the Fiscal Year (FY) 2012 appropriations bill that would prohibit the FCC from spending any funds to grant LightSquared's conditional spectrum permit until the company is able to prove its network will not cause widespread blackouts in GPS service. The amendment, sponsored by Reps. Steve Austria (R-Ohio) and Kevin Yoder (R-Kan.), would prohibit FCC funding "to remove the conditions imposed on commercial terrestrial operations in the Order and Authorization adopted by the Commission on January 26, 2011 (DA 11-133), or otherwise permit such operations until the Commission has resolved concerns of potential wide-spread harmful interference by such commercial terrestrial operations to commercially available Global Positioning System (GPS) devices." If approved by the full House and Senate, the amendment could effectively stop the FCC from allowing LightSquared to launch its Long Term Evolution (LTE) network until the company can prove its service won't affect GPS systems. LightSquared is seeking to deploy a mobile broadband network in spectrum near bandwidth used by GPS, raising concerns that the service could knock out sensitive GPS receivers. As noted by Wireless Week, an earlier version of the appropriations bill stated that the committee was "aware of concerns related to possible interference to [GPS] devices due to terrestrial broadband service" and was waiting for LightSquared's final report on the problem from an FCC-mandated study. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Cary Mitchell. FCC Extends Signal Booster NPRM Comment Deadlines The FCC has extended the comment deadlines for its Notice of Proposed Rulemaking (NPRM) proposing rules to develop and facilitate well-designed signal boosters. Comments in this WT Docket No. 10-4 proceeding are now due July 25, and replies are due August 24. On the one hand, the proposed signal booster rules could make it easier to improve signal coverage in rural communities and other areas with marginal coverage. On the other hand, the FCC’s proposed rules could potentially have an adverse impact on client operations, particularly if the consumer use of signal boosters causes harmful interference to broad band communications (e.g., SMR, Cellular, Broadband PCS, 700 MHz and AWS Services) and public safety operations. As the FCC has recognized, fixed and mobile signal booster applications could be used in both rural and suburban/urbanized areas, where signal coverage and/or building penetration is weak in order to improve signal coverage. BloostonLaw has drafted comments to urge the Commission to approve only carrier specific signal boosters due to the inherent interference issues that are created by signal boosters that are capable of transmitting over all CMRS frequencies (rather than just the intended carrier’s spectrum). Additionally, we have recommended that signal booster equipment be regulated in the same manner as handsets and air-cards so that carriers have (a) sufficient control over the deployment of signal booster devices and (b) the ability to disable a signal booster if it malfunctions and causes harmful interference to wireless carriers or public safety entities. It is also important to note, especially with mobile signal boosters, that E911 location technology can be adversely affected and that steps must be taken in order to ensure that public safety answering points (PSAPS) are able to locate callers in a timely manner. Finally, the Comments urge the FCC not to grandfather any existing non-compliant signal booster installations and to undertake a public education program so that these non-compliant installations can be eliminated. If you wish to participate in the comments, please contact the firm. BloostonLaw contacts: Hal Mordkofsky and Richard Rubino. FCC Seeks Comment On Collision Avoidance Radar The FCC has set comment dates on its Notice of Proposed Rulemaking (NPRM) proposing to amend its rules to enable enhanced vehicular radar technologies in the 76-77 GHz band to improve collision avoidance and driver safety. Vehicular radars can determine the exact distance and relative speed of objects in front of, beside, or behind a car to improve the driver's objects under bad visibility conditions or objects that are in blind spots. These modifications to the rules will provide more efficient use of spectrum, and enable the automotive and fixed radar application industries to develop enhanced safety measures for drivers and the general public. The Commission took this action in response to petitions for rulemaking filed by Toyota Motor Corporation and Era Systems Corporation. Comments in this ET Docket Nos. 11-90 and 10-28 proceeding are due July 18, and replies are due August 1. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. New Rules For “Up Front” Regulatory Fees Take Effect The FCC’s procedures for wireless service applications that include “up front” regulatory fees took effect on June 21. Previously, when regulatory fees were required “up front” to cover the term of a license, both application fees and regulatory fees were included under a single fee payment type code as a single line item on FCC Form 159, Remittance Advice (Form 159). Effective June 21, application fees and regulatory fees will have separate fee payment type codes, respectively, and must be listed as separate line items on the Form 159. Parties that file applications for new authorizations or renew existing applications in wireless services where application fees and regulatory fees are collected at the time of the application filing are affected by these changes. Payments should continue to be made the same way. If a party chooses to make a payment by check, a single check is still required even though the application fees and regulatory fees are now listed as separate line items on the Form 159. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. 800 MHz Rebanding “True-Up” Deadline Postponed The FCC has issued an Order that (1) postpones the 800 MHz rebanding financial reconciliation “true-up” date from June 30 to December 31, and (2) requires the 800 MHz Transition Administrator (TA) to file a report by Nov 15, with its recommendation on whether the true-up date should occur on December 31, or be further postponed. The Commission established the true-up in the 800 MHz Report and Order to assess the total creditable rebanding costs incurred by Sprint Nextel for both 800 MHz rebanding and relocating of Broadcast Auxiliary Service (BAS) licensees in the 1.9 GHz band, and to compare these costs to the value of the 1.9 GHz spectrum that the Commission awarded to Sprint. If the true-up shows that the value of the 1.9 GHz spectrum exceeds Sprint’s combined 800 MHz and BAS relocation costs, Sprint must pay the difference in an “anti-windfall” payment to the U.S. Treasury.1 BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell. Walden Draft Bill Would Reform FCC Processes Rep. Greg Walden (R-Ore.) is drafting legislation to reform FCC processes. At last week’s House Communications and Technology Subcommittee hearing, the panel discussed the provisions in the draft. The proposed bill would: - Require the Commission to conduct an economic analysis of industries that would be affected by the rules before initiating a new rule-making and provide certain minimum amounts of time for comments.
- Prevent the Commission from imposing burdens on consumers or industry unless it first identifies a market failure and consumer harm justifying the burden. If such rules are needed, the Commission must perform a cost-benefit analysis and create performance measures for the rule’s continued evaluation.
- Ensure any conditions imposed on transactions are tailored to transaction-specific harms and within the Commission’s general rule-making authority.
- Promote a renewed focus on the economic opportunities and challenges for the communications sector with a biennial report to Congress from the Commission giving a big-picture view of what’s happening in the industry, the challenges for jobs and economic growth, and the Commission’s plans to address those issues.
- Enhance consistency and transparency in the Commission's operations by requiring the FCC to establish its own internal procedures for: (1) adequate review and deliberation regarding pending orders; (2) publication of orders before open meetings; (3) initiation of items by bipartisan majorities; and (4) minimum public-comment periods.
- Establish “shot clocks” so that parties know how quickly they can expect action in certain proceedings and provide a schedule for when reports would be released.
- Empower the Commission to improve the way it conducts business and operate more efficiently with sunshine reform, allowing three or more Commissioners to meet for collaborative discussions so long as certain safeguards are in place.
OMB Asked To Help In FCC Self-Review Republicans on the House Energy and Commerce Committee have written to Cass Sunstein, administrator of the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB), urging his office to work with the FCC to ensure the agency's voluntary self-review of regulations meets the same standards as the administration's government-wide effort to remove burdensome federal regulations. As an independent agency, the FCC is not covered by the executive order mandating the review, but the FCC agreed with a request from the House committee to conduct a full review of current regulations to identify those that could pose barriers to job creation. Chairman Fred Upton (R-Mich.) and Reps. Greg Walden (R-Ore.) and Cliff Stearns (R-Fla.) asked Sunstein for details on how his office is working to convince independent agencies of the importance of the reviews even though they are not required. The FCC has announced it would delete the so-called Fairness Doctrine and other outdated rules by August, and it has opened a proceeding to identify “dormant” proceedings that could be terminated. In a related matter, Rep. Robert Latta (R-Ohio) has introduced HR 2289, the FCC ABCs Act. This is a short bill that directs the FCC to “include in each notice of proposed rulemaking and in each final rule issued by the Commission an analysis of the benefits and costs of the proposed rule or final rule, respectively.” BloostonLaw contacts: Hal Mordkofsky, Ben Dickens, Gerry Duffy, and John Prendergast. FCC Clarifies Rule Regarding Maritime VHF Channel 7B The FCC has denied a petition for reconsideration of its Second Report and Order regarding maritime VHF Channel 7B (161.975 MHz). The FCC designated this channel for exclusive use by maritime Automatic Identification Systems (AIS) in the 33 inland VHF Public Coast (VPC) service areas (VPCSAs), and provided a framework and timetable for clearing Channel 87B of non-AIS operations in the inland VPCSAs. PacifiCorp, an inland VPCSA geographic licensee, filed the petition for reconsideration of the period in which inland VPCSA incumbents must vacate Channel 87B. The FCC declined to extend this period generally to non-AIS operations because, it said, such an extension would undermine the primary goal of this proceeding – the rapid, interference-free implementation of the AIS network. PacificCorp also requested that the Commission re-channelize the VPC frequency band in order to facilitate more efficient spectrum usage, but the FCC said proposals to modify the VPC plan are beyond the scope of the rulemaking proceeding. Additionally, the FCC decided to amend Section 80.371(c)(1)(i) of the Rules. The Commission noted that it had grandfathered two site-based licensees operating on Channel 87B in inland VPCSAs for 15 years. Site-based Channel 87B licensees in the maritime VPCSAs are grandfathered only until their current license terms expire. But, the FCC said, note three to Section 80.371(c)(1)(i) was not amended to reflect the Commission’s decision in the Second Report and Order to provide a different grandfathering period for the site-based licensees operating on Channel 87B in the inland VPCSAs, and thus incorrectly provides, without qualification, that no site-based authorization to use Channel 87B will be renewed. While accurate prior to the adoption of the Second Report and Order, the FCC said that statement is now accurate only with regard to the Channel 87B site-based incumbents in the maritime VPCSAs. The FCC therefore amended note three to reflect that Channel 87B site-based incumbents in inland VPCSAs have been grandfathered for 15 years, irrespective of their remaining license term. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. Comment Sought On Public Safety Aircraft Voice Calls On 700 MHz Channels The FCC has asked for comments on the National Public Safety Telecommunications Council’s (NPSTC’s) petition for rulemaking requesting that the Commission consider rule changes to permit public safety aircraft voice operations on 700 MHz narrowband channels designated for secondary trunking use in Section 90.531(b)(7). Furthermore, NPSTC recommends that the Commission limit public safety aircraft voice operations on these channels to two watts effective radiated power, which is consistent with Section 90.541(d). NPSTC based its proposal on the State of Maryland’s request to deploy air-to-ground voice operations on 700 MHz narrowband channels so it may incorporate public safety aircraft into its existing and planned 700MHz networks. NPSTC contends that allowing air-to-ground voice operations at 700 MHz is “a nationwide issue affecting all licensees operating aircraft radios.” NPSTC has identified these secondary trunking channels as the “most appropriate” for public safety aircraft voice operations because NPSTC believes these channels “are likely to be lightly used and… sharing arrangements among geographically adjacent agencies can be developed through the Statewide Interoperability Executive Committees…or similar body in the affected states to minimize interference.” Consistent with trunking on these channels, NPSTC proposes that air-to-ground voice operations be “secondary to conventional interoperability uses.” The FCC seeks comment on whether to initiate a rule-making proceeding to consider NPSTC’s recommended rule changes. Commenting parties should address the potential costs and benefits of NPSTC’s proposal, including: (1) how and in what ways the secondary trunking channels are used today; (2) the compatibility of the proposed airborne operation with terrestrial use; and (3) what coordination procedures geographically adjacent licensees should employ to limit interference from airborne operation. Comments in this RM-11433 proceeding are due July 15, and replies are due July 25. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, Richard Rubino, and Cary Mitchell. FCC Grants Florida Waiver Regarding Repeaters Subject to certain conditions, the FCC has granted a request for waiver filed by the State of Florida, Department of Management Services, Division of Telecommunications regarding the operation of repeaters in a trunked mode. Florida currently is licensed for up to 100 deployable 700 MHz repeaters operating in the conventional, i.e., non-trunked, mode on up to eight interoperability channel sets. It sought a waiver of Section 90.531(b)(1)(iii) of the Commission’s rules to enable it to operate these repeaters in the trunked mode. The Commission granted the waiver conditioned on the outcome of a National Public Safety Telecommunications Council’s (NPSTC) proposal to designate the narrowband reserve channels “to promote deployment of mobile trunked infrastructure that can be transported into [an] incident area.” In June 2008, the FCC sought comment on the NPSTC’s petition. Most commenting parties supported the NPSTC proposal, although two commenting parties raised questions regarding interference and the licensing of these channels. Although the Commission has not issued a notice of proposed rulemaking in response to the NPSTC proposal, it conditioned the instant waiver grant on the disposition of the NPSTC petition. Specifically, should the Commission authorize mobile trunked infrastructure using narrowband reserve channels, this waiver shall expire and the deployable repeaters authorized by this waiver must be reprogrammed to operate on narrowband reserve channels. Florida must bear the cost of reprogramming its repeaters and shall not be eligible for reimbursement of any costs associated with modifying its repeaters in order to migrate to the narrowband reserve channels and comply with the technical and licensing rules applicable to those channels. Furthermore, the FCC said operations pursuant to this waiver are secondary, i.e., the repeaters (a) must not cause interference to, and must accept interference from, any fixed base station, and its associated mobiles, operating on the narrowband interoperability channels, and (b) must not cause interference to, and must accept interference from, any mobile or portable unit operating in the “direct,” i.e., unit-to-unit mode. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. American Taxi Fined $20k For Unlicensed Operation Despite Claim of Having “Permission” from Another Licensee The FCC has issued a $20,000 monetary forfeiture to American Taxi Shuttle and Limo, Inc., for willful and repeated violation of section 301 of the Communications Act, involving operation of an unlicensed radio transmitter on the frequency 152.3900 MHz in Daytona Beach, Florida. In the fall of 2009, agents from the Tampa Office observed unlicensed radio transmitters operating on the frequency 152.3900 MHz from American Taxi’s business in Daytona Beach. In its Notice of Apparent Liability (NAL) Response, American Taxi does not deny that it operated radio transmitters on the dates in question. It alleges, however, that it was operating legally with the consent of The Plaza Resort & Spa, the licensee authorized to operate on the frequency of 152.3900 MHz in Daytona Beach, Florida. The FCC said it was un-persuaded by American Taxi’s arguments that it was operating its radios on 152.3900 MHz with the consent of the licensee. American Taxi asserts that The Plaza Resort & Spa purchased radios from a vendor for use by taxis about ten years ago. It further claims that the vendor later sold radios directly to taxi companies, including American Taxi, and programmed those radios on The Plaza Resort & Spa’s frequencies. American Taxi asserts that the vendor would not have programmed 152.3900 MHz into the transmitters without authorization from the licensee. However, American Taxi was unable to provide corroboration of its assertions regarding the radio vendor, or to provide a copy of a written agreement or a contact with The Plaza Resort and Spa who could confirm an agreement or any other evidence of the agreement’s existence. According to the licensee, The Plaza Resort & Spa, there were no verbal or written agreements with any other entities to use its assigned frequencies. Moreover, assuming arguendo that The Plaza Resort & Spa authorized other entities to use its frequencies in the past, there is no evidence of any such agreement with American Taxi. Thus, the FCC concluded that American Taxi was not authorized to transmit on the frequency 152.3900 MHz. BloostonLaw contacts: Hal Mordkofsky, John Prendergast, and Richard Rubino. FCC Issues $24k Fine For Unlicensed Operation, Failure To Allow Inspection The FCC has issued a $24,000 monetary forfeiture to Kevin W. Bondy, licensee of General Mobile Radio Service (GMRS) Station WQGX752, in Encino, California, for engaging in unlicensed radio operation and intentional interference to licensed radio operations, and for refusing to allow an inspection of his radio equipment by FCC personnel. Although Bondy is a GMRS licensee under Part 95 of the Commission’s Rules, the FCC said, he has no authorization to operate on 461.375 MHz and 466.375 MHz, the frequencies licensed to The Oaks, or 464.7125 MHz and 462.8375 MHz, the frequencies that the Los Angeles agent located Bondy transmitting on during the investigation on March 6, 2009. In his Notice of Apparent Liability (NAL) Response, Bondy denied transmitting on 464.7125 MHz and 462.8375 MHz and denied ordering anyone to stop transmitting on 461.375 MHz and 466.375 MHz. Bondy argued that this is simply a case of mistaken identity. Bondy also argued that he did not own or operate any equipment on Oat Mountain, including the unauthorized repeater the Los Angeles agent found. The FCC found no merit in Bondy’s arguments. The FCC said the Los Angeles agent used direction-finding techniques to locate Bondy as he transmitted on 464.7125 MHz and 462.8375 MHz on March 6, 2009. The agent successfully located the initiating transmissions to a vehicle located at the parking structure near The Oaks in which Bondy was operating. Bondy was then identified by a Ventura County police officer, a fact that Bondy does not dispute. While the Los Angeles agent was attempting to locate Bondy, The Oaks personnel recorded their transmissions with Bondy in which Bondy ordered them to vacate 461.375 MHz and 466.375 MHz while he was transmitting on 464.7125 MHz and 462.8375 MHz. Bondy stated in his transmissions to The Oaks personnel, that he had been jamming the frequencies, 461.375 MHz and 466.375 MHz, and that The Oaks had to stop using those frequencies. Although the Los Angeles agent attempted an inspection of Bondy’s radio equipment and was allowed to begin to inspect a single handheld device, the agent’s attempt to determine the actual frequency programmed into the handheld device was thwarted by Bondy, and Bondy indicated to the agent that he could not conduct a full and complete inspection of all of the radio equipment in the vehicle. When a subject disallows such an inspection, it severely undermines a field agent’s ability to perform his or her job. Consequently, the FCC found that Bondy willfully failed to allow an inspection of his radio equipment. 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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