Selected portions of the BloostonLaw Telecom Update, and/or the BloostonLaw Private Users Update —newsletters from the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP are reproduced in this section with the firm's permission. 
| BloostonLaw Telecom Update | Vol. 17, No. 41 | October 17, 2014 |
Special Edition FCC Establishes Nov. 7 Deadline for Rural Broadband Experiments Via Public Notice released yesterday, the FCC has re-established the deadline for Rural Broadband Experiments. The filing window for applications will open on Thursday, October 23 at 9 a.m. EDT, and will close on Friday November 7 at 6 p.m. EST. A link to Form 5610, which is a fully-online web form, will be available at http://www.fcc.gov/encyclopedia/rural-broadband-experiments on October 23. As with all electronic filing systems, the Commission has encouraged participants to file their forms early in order to avoid potential delays due to system slow-down at the end of the filing period. Incorrect or incomplete Form 5610 filings and attachments may be rejected outright. If you have any questions about the Rural Broadband Experiments program, or if you would like assistance in preparing and submitting your application, please contact the firm without delay.
| BloostonLaw Telecom Update | Vol. 17, No. 40 | October 15, 2014 |
9-1-1 Reliability Certification Rules Now Effective Office of Management and Budget approval of the FCC’s 9-1-1 reliability certification rules appeared in the Federal Register today, making those rules now effective. Under the rules, a certifying official of every covered 911 service provider must make an initial certification on February 18, 2015 to the FCC “that it has made substantial progress toward meeting the standards of the annual reliability certification” described elsewhere in the rules. The full certification, which includes statements on circuit auditing, backup power, and network monitoring, must be filed on February 18 each year after that. We will be glad to help our clients with the preparation and filing of the certification.
Headlines Iowa District Court Sends IntraMTA Wireless Issue to FCC The United States District Court for the Northern District of Iowa has referred to the FCC the issue of whether an “intermediary carrier” and inter-exchange carrier (IXC) like Sprint is subject to reciprocal compensation or tariffed access charges when it intermixes and exchanges intraMTA wireless traffic over Feature Group D access trunks. The Iowa case is one of the many lawsuits that have been filed by Sprint and Verizon IXC affiliates against both price cap and rate-of-return local exchange carriers (LECs) seeking refunds of charges for intraMTA wireless traffic that was apparently intermixed and delivered over access trunks without notice to the LECs for many years, and for which the Sprint and Verizon affiliates had long paid without dispute access bills which they now claim included intraMTA wireless traffic. Most of the LEC defendants have treated these lawsuits as express or implied contractual matters, and have invoked voluntary payment doctrines in the states where they have been adopted. However, LEC defendants in Iowa and Missouri also sought referral of certain issues in their cases to the FCC under the legal doctrine of primary jurisdiction. The Iowa court stayed that Sprint complaint while the matter is before the FCC. After the FCC issues a declaratory ruling in the matter, the Iowa court indicated that it will review the FCC ruling, and then determine how to consider and rule upon the filed rate doctrine and voluntary payment issues over which it retained jurisdiction. FCC Proposes Changes to DE Rules and Limits on Joint Bidding in Advance of 600 MHz Auction Seeking to amend and update its Part 1 competitive bidding rules in advance of next year’s 600 MHz incentive auction, the FCC has issued a rule making proposal designed to facilitate the ability of small businesses, rural telephone companies and businesses owned by members of minority groups (collectively, “designated entities” or “DEs”) to participate in the provision of spectrum-based services. Of note, the NPRM includes proposals to eliminate the attributable material relationship (or “AMR”) rule, to eliminate a long-standing FCC policy that requires businesses seeking bid credits to provide primarily facilities-based service with each of their licenses; to raise the gross revenue limits for small business eligibility; and to repeal the DE annual reporting requirement, among other changes. The FCC is proposing instead to evaluate small business eligibility on a license-by-license basis, using a two-pronged test to evaluate whether the applicant: (1) meets the applicable small business size standard, and (2) retains control over the spectrum associated with the individual licenses for which it seeks benefit. Under the proposed rules, DE licensees would have greater flexibility to enter into spectrum manager leasing arrangements with their licensed spectrum under the same de facto control standard as non-DE lessors. Thus, if adopted, a licensee could lease some or all of its spectrum capacity to a non-DE (including a nationwide carrier such as AT&T or Verizon) and it would be allowed to retain the value of its bidding credits provided it maintains a requisite level of oversight/control over its spectrum. With respect to the new small business size tiers, the Commission is proposing that businesses with average gross revenues for the preceding three years not exceeding $4 million would be eligible for a 35% bidding credit; businesses not exceeding $20 million would be eligible for a 25% bidding credit, and businesses not exceeding $55 million would be eligible for a 15% bidding credit. The existing small business size tiers for these levels of bid credits, which have been unchanged over the past seventeen (17) years, are $3 million, $15 million and $40 million, respectively. In its review of joint bidding rules, the FCC has tentatively concluded that it would serve the public interest to retain current rules governing joint bidding and other arrangements among non-nationwide providers, but to prohibit certain joint bidding and other arrangements among nationwide providers. The FCC also seeks comment on whether it should adopt additional bidding preferences based on rural telephone company status (a proposal made by the Blooston Rural Carriers repeatedly in past auction proceedings); for bidders who provide service to unserved or under-served areas or areas where there is persistent poverty; or for persons or entities who have overcome substantial disadvantage. Advocates for any of these additional preferences have been asked comment on the Commission’s authority to implement these types of bidding preferences and to describe how such a preference would be administered. With respect to the rural telephone company credit, the FCC has asked for advocates to supply data demonstrating that rural telephone companies lack access to capital or face barriers to capital formation similar to those faced by other DEs. While the item was praised by advocates for increased minority media participation as setting the stage for increased DE participation in the upcoming incentive spectrum auction, others like Republican FCC Commissioner Michael O’Rielly had a more cynical (and some would say realistic) view of the likely outcome. “Rather than provide head-to-head competition, a DE could merely integrate its spectrum into the network of an incumbent wireless provider,” wrote Commissioner O’Rielly in a dissenting statement. “Given this likelihood, it is hard to see how this wouldn’t sanction middlemen to underpay the American people for their collectively owned scarce resource ( i.e., spectrum) and pocket the money while doing almost nothing.” Comments on the item will be due 45 days after publication of the NPRM in the Federal Register, with reply comments due 65 days after Federal Register publication. FCC Releases Erratum on E-Rate Order, Indirectly Responds to Requests for Clarification On October 10, the FCC released a long list of changes to the E-Rate Modernization Order which, among other things, indirectly responded to requests for clarification filed by a number of petitioners after the Order was originally released in July. Specifically, the FCC “corrected” its amendment to Section 54.505(b)(3)(i), which essentially defines which schools and libraries are considered “urban” and which are considered “rural” for the purposes of obtaining E-Rate discounts, to use the term “urban area” instead of “urbanized area.” The net result of the erratum is a broader definition of “urban” and, consequently, a narrower definition of “rural.” As we reported in the September 24 Edition of the BloostonLaw Telecom Update, a number of entities including NTCA filed petitions for clarification and reconsideration on this exact issue: the new rule used the term “urbanized area,” which is defined by the Census Bureau as a place of 50,000 people or more, but in various places through the E-Rate Modernization Order, the FCC referenced “urban areas,” which are defined as including both “urbanized areas” and “urban clusters.” In the joint petition filed by NTCA and URTA, the associations noted that the difference is significant: “For example … school districts in only 5 counties in [Utah] would appear to meet the new definition of “rural,” as compared to school districts in 25 Utah counties that previously qualified for the additional rural discount.” In the event the FCC did intend to use “urban areas” in its definition, the associations asked for reconsideration. The FCC’s erratum creates a clearly substantive change of a rule that has not only been promulgated but published in the Federal Register and therefore made effective. At this time, the FCC has not made any indication as to how it will hand the reconsideration aspect of the petitions noted above. FCC Releases Rural Broadband Experiments Bid Form Instructions On October 10, the FCC released instructions on how to complete the Rural Broadband Experiments application’s bid form. Due to the fact that the bid forms will be processed electronically by the FCC Auction System, it is important that these additional instructions are followed to ensure that the bid forms are properly processed. Any bid forms not following these instructions may be rejected. A copy of the document, entitled ‘Guide to Working with the Bid Form’ can be found here . At this time, the FCC has not yet established a new deadline for Form 5610 (and the associated bid form). Clients interested in obtaining more information about the Rural Broadband Experiments proceeding or assistance in applying should feel free to contact the firm. FirstNet Participation RFI Comment Deadline Extended In response to requests received for additional time to respond to the FirstNet Request for Information published on September 17th, 2014, FirstNet has decided to extend the filing deadline to Monday, October 27th at midnight EST. According to the press release announcing the extension, the purpose is to “provide respondents with additional time to furnish meaningful feedback to FirstNet regarding its acquisition strategy for the nationwide public safety broadband network.” As we reported in the September 18 Special Edition of the BloostonLaw Telecom Update, FirstNet adopted a request for information (RFI) at its September 17 board meeting seeking input on issues such as whether FirstNet can be accessed by non-public safety users, and whether there is a potential for partnering with other carriers, especially rural telephone companies , to complete the buildout of the nationwide public safety broadband network as quickly and efficiently as possible. Commissioner O’Reilly Renominated to Full Term Last week, President Obama renominated Republican Commissioner Michael O’Rielly for a full term with the FCC. As we reported at the time, O’Rielly’s original nomination was to finish out the term of then-Commissioner Robert McDowell, who stepped down with a little under one year remaining in his term. FCC Commissioners are sworn in for five year terms unless, like former Commissioner McDowell, they depart earlier. It’s possible that O’Rielly’s nomination could be taken up in the lame-duck session, but if it is not President Obama will have to resubmit the nomination in the next Congress. FCC Seeks Nominations for Optimal Public Safety Answering Point Architecture Task Force The FCC has announced that it is seeking nominations and expressions of interest for membership on the Optimal Public Safety Answering Point Architecture Task Force. Nomination applications and statements of interest are due November 7. This task force will study and report findings and recommendations on the Public Safety Answering Point (PSAP) structure and architecture in order to determine whether additional consolidation of PSAP structure and architecture improvements would improve operational efficiency, safety of life and reduce costs while ensuring that needed integration remains with local first responder dispatch services and support. It will be comprised of members from various groups, including: (a) state, tribal and/or local governmental agencies and organizations with expertise in communications and public safety issues; (b) Federal government agencies with expertise in communications and/or homeland security issues; (c) communications service providers and organizations representing communications service providers, including: wireline, wireless, interconnected VoIP and other IP enabled service providers; (d) system service providers, including vendors of equipment and services used to provide critical network infrastructure to PSAPs; (e) organizations and other entities that represent consumer or community organizations such as those which represent end-users with disabilities, the elderly, those living in rural areas, and those representing populations that speak languages other than English; and (f) qualified representatives of other stakeholders and interested parties with relevant expertise. It is important to note that the needs of PSAPs in urban areas may be significantly different from those in rural areas even though the underlying mission is virtually identical. Because the needs from one area to another may vary dramatically, we encourage those interested clients to apply for membership on this task force. Nomination applications and statements of interest are due November 7, 2014 and should include the following information: - Name, title and organization of the nominee along with a description of the organization, sector or other interest that the nominee will represent;
- Nominee’s mailing address, e-mail address, telephone number and fax number; and
- A statement which summarizes the nominee’s qualifications and reasons why the nominee should be appointed to the Task Force. If the nominee will represent a specific organization, the statement should also include a description of the organization and an explanation of the benefit of having the organization represented on the Task Force.
Law & Regulation Comment Sought on Digital LPTV Issues; Expiration Dates and Construction Deadlines Suspended On October 10, the FCC issued a Notice of Proposed Rulemaking (NPRM) seeking comment on a number of issues related to digital low power television stations. Comments will be due 30 days after the NPRM is published in the Federal Register, and reply comments will be due 15 days after that. Concurrently with the NPRM, the FCC suspended the expiration dates and construction deadlines for all outstanding unexpired construction permits for new digital LPTV and TV translator stations pending final action on the NPRM. In the NPRM, the FCC seeks comment on a number of tentative conclusions, including (1) extending the September 1, 2015 digital transition deadline for LPTV and TV translator stations; (2) adopting rules to allow channel sharing by and between LPTV and TV translator stations; and (3) creating a “digital-to-digital replacement translator” service for full power stations that experience losses in their pre-auction service areas. In addition, the FCC is also seeking comment on: (1) use of the incentive auction optimization model to assist LPTV and TV translator stations displaced by the auction and repacking process to identify new channels; (2) whether to permit digital LPTV stations to operate analog FM radio-type services on an ancillary or supplementary basis; and (3) whether to eliminate the requirement in section 15.117(b) of the rules that TV receivers include analog tuners. Changes Proposed to Distribution of Wireless License Authorizations and Antenna Structure Registrations The FCC is seeking comment on a proposal to make electronic delivery of license authorizations and ASR registrations the default method of delivery. Comments are due November 10, 2014. Specifically, the FCC proposes to provide for two methods of electronic delivery: (a) directly through the License Manager module in ULS or the Dashboard module in the ASR system or (b) via e-mail upon the grant of an application if the applicant provides the FCC with an e-mail address. The FCC notes that not all users will want to receive their authorizations or registrations electronically and has therefore proposed to allow licensees and registrants the option of electing delivery of documents by U.S. Mail in the License Manager or Dashboard modules even though the default delivery method would become electronic delivery. While electronic delivery of authorizations and registrations is ecologically sound, there are pitfalls that you should be aware of if you would not receive a paper copy in the mail. If e-mail is selected, it is possible that e-mails could either be lost in cyberspace or directed to your SPAM filter. Or the responsible person for FCC matters in your company may leave or change email address, and notifying the FCC of this change may be overlooked. Likewise, receipt of a paper document from the FCC serves as an indication that an application has been granted. It is important to note that the “official” electronic authorizations or registrations that would be sent from the FCC via e-mail or through its License Manager or Dashboard modules would be the only official electronic documents that may be used, unless the FCC adopts the paper option discussed above and you elect that option. Any electronic FCC authorization or registration with a “Reference Copy” watermark ( i.e., one printed from the ULS database) is not the official authorization or registration and therefore cannot be relied upon for compliance with the FCC’s requirement that licensees maintain an official copy of the license authorization or ASR registration. Thus, if you elect electronic delivery, it will be critical for you to print off an official copy from either your e-mail (if you elect e-mail delivery) or your ULS dashboard account and not from the public side of the FCC’s ULS or ASR systems. Under its interim procedure, licensees and tower owners may log into the FCC’s Universal Licensing System (ULS) or Antenna Structure Registration (ASR) System and advise the Commission that they wish to receive their authorizations electronically — much the way you are able to do with banking statements from many of your financial institutions. During the interim period, if no action is taken, the FCC will continue to mail out paper authorizations as it has done for years. FCC Confirms Open Meeting Agenda The FCC has announced the official agenda for its Friday, October 17, 2014 Open Meeting. The meeting is scheduled to commence at 10:30 a.m., and will be webcast live at www.fcc.gov/live . At the meeting, the Commission will consider the following items: - a Report and Order that takes critical steps to promote the deployment of wireless infrastructure necessary to provide the public with ubiquitous, advanced wireless broadband services.
- a Notice of Inquiry to explore innovative developments in the use of spectrum above 24 GHz for mobile wireless services, and how the Commission can facilitate the development and deployment of those technologies.
- a Second Report and Order and Further Notice of Proposed Rulemaking to address aggregate broadcaster-to-broadcaster interference and the methodology for predicting interference between broadcast and wireless operations in the same or adjacent channels in nearby markets during and following the Incentive Auction.
- a Second Further Notice of Proposed Rulemaking to comprehensively reform interstate and intrastate inmate calling services (ICS) to ensure just, reasonable and fair rates and charges for consumers as well as providers.
- a presentation regarding an inquiry into a major 911 service outage that affected seven states in April 2014. The presentation will include findings from a report on the causes and effects of the outage as well as recommendations on actions the industry, the Commission and state governments can take to strengthen the reliability and resiliency of 911 services as the nation transitions to Next Generation 911.
Industry Windstream Likely to Accept CAF II Broadband Funding In an interview with Telecompetitor last week, Windstream CEO Jeff Gardner indicated that the company expects to accept Connect America Phase II funding. “We’re very optimistic [that in] most of our states we’ll be able to take the money,” said Gardner. During the interview, Gardner also discussed how the company’s plan to spin off its copper and fiber assets into a real-estate investment trust (REIT) will impact network construction plans. Under the Windstream REIT plan, a new company will be created that will lease network assets back to Windstream at an initial estimated annual payment of $650 million. Windstream maintains its customer relationships and regulatory obligations. Windstream’s current CFO Tony Thomas will serve as the new company’s CEO. Gardner also addressed FCC Chairman Tom Wheeler’s recent recommendations to increase the target broadband speeds from 4/1 to 10/1: “The chairman’s basic direction is right,” said Gardner. “Over time [people] will want a higher speed. It’s not an unreasonable request. But if you do ten-one, you have to rethink the economics because it will cost us all more. And if it’s ten-one, [the FCC needs to] give us time to build it.”
Panelists Announced for Open Internet Regulation Forum On October 9, Commissioner Pai announced the witnesses for his upcoming forum on Internet regulation, to be held in College Station, Texas on October 21. The event will be hosted by Texas A&M University’s Bush School of Government and Public Service and will focus on the Federal Communications Commission’s Open Internet proceeding. The witnesses for this field hearing will be: The Honorable Donna L. Nelson , Chairman of the Texas Public Utilities Commission; Edward Henigin , Chief Technology Officer for Data Foundry; Robert Hunt , Vice President for Guadalupe Valley Telephone Cooperative; Chelsea McCullough , Executive Director of Texans for Economic Progress; Joe Portman , President and Founder of Alamo Broadband, Inc.; and Stewart Youngblood , Ambassador at the Dallas Entrepreneur Center. The field hearing is scheduled to begin at 10 A.M. and will be live-streamed at http://www.georgebushfoundation.org/fccforum . Calendar At-a-Glance October
Oct. 1 – FCC Form 477 due (Local Competition and Broadband Reporting).*
Oct. 14 – Deadline for applications for rural broadband experiments.*
Oct. 15 – Auction 97 upfront payments are due.
Oct. 17 – FCC Open Meeting.
Oct. 27 – Comments are due on the Healthcare Connect Fund Public Notice.
Oct. 27 – Comment deadline for FirstNet RFI. November
Nov. 3 – FCC Form 499-Q (Quarterly Telecommunications Reporting Worksheet) is due.
Nov. 3 – Reply comments are due on IP Captioning proceeding.
Nov. 7 – Nominations and statements of interest for PSAP Architecture Task Force are due.
Nov. 10 – Auction 97 Mock Auction.
Nov. 10 – Responses to CAF Phase II Challenges are due.
Nov. 10 – Reply comments are due on the Healthcare Connect Fund Public Notice.
Nov. 10 – Comments on electronic delivery of license authorizations and ASR registrations are due.
Nov. 13 – Auction 97 begins.
Nov. 14 – Comments are due on USDA Notice on Changes to Guaranteed Loan Program Regulations.
Nov. 14 – Comments are due on Part 32 Accounting Rules NPRM. December
Dec. 1 – Deadline to Increase Residential Rate Floor to $16.
Dec. 15 – Deadline for Special Access Data Collection.
Dec. 15 – Reply comments are due on Part 32 Accounting Rules NPRM. | 
David George and Bill Noyes
