10+ GHz for 5G: FCC Expands Spectrum Frontiers for Fifth Generation Connectivity

U.S. aims to get ahead of the rest of the world in advanced wireless technology.fcc and 5G-1

As we’ve reported, the FCC has been hard at work on the regulatory regime for future wireless “5G” technologies, which promise blindingly fast data speeds.

Would-be 5G wireless providers and device manufacturers particularly want wide swaths of millimeter wave (mmWave) spectrum – frequencies above 24 GHz – for fastest speeds and highest video resolution. An advantage to this spectrum: at present a lot of it is only lightly used. Because these frequencies work best at short range, many envision that the highest-speed service will add to, but not fully replace, current 4G technology. Best of all, transmitter and antenna technologies are close to being ready.

In the Report and Order (R&O) component of a massive, 278-page Report and Order and Further Notice of Proposed Rulemaking (Order), the FCC has made mmWave spectrum available for both licensed and unlicensed use. New rules provide for mobile use in the 28, 37, and 39 GHz bands. And the newly-opened 64-71 GHz band will provide a total of 14 GHz for unlicensed use of WiGig technology, similar to a higher-frequency version of Wi-Fi. Through the Further Notice of Rulemaking (FNPRM) portion of the Order, the FCC is looking to address a number of issues left open in the R&O portion. (The fact that some issues remained unresolved is not surprising, since the R&O was wrapped up in near-record time, for the FCC – just nine months after the rules were formally proposed.)

The FCC has followed through on its proposal to make available almost 4 GHz of spectrum for flexible licensed use in the 28 GHz, 37 GHz, and 39 GHz bands. Here “flexible” means that a licensee can use its frequencies for either fixed or mobile applications. This is a novel idea in the halls of the FCC – one that’s been talked about for years, but is only now finally being implemented. The R&O creates a new “Upper Microwave Flexible Use Service” (UMFUS) in a new Part 30 of the FCC rulebook. Continue Reading

Update: Comment Deadlines Announced in Alien Ownership Inquiry

fcc building with statue of liberty-1Last month we reported on a Notice of Proposed Rulemaking (NPRM) through which the FCC is seeking comment on the way it processes proposals involving reportable levels of foreign ownership. The NPRM has now wended its way into the Federal Register, which means that the deadlines for comments and replies have been set. Get out your calendars: comments are due to be filed by August 18, 2016; replies are due by September 2 (an excellent way to kick off your Labor Day weekend!). You can submit your comments at this FCC website; enter Proceeding Number 16-155.

Wheeler Takes Retrans Re-Tooling Off the Table

Chairman blogs that FCC will not be modifying “totality of the circumstances” test on his watch.

In the long-running retransmission consent war pitting broadcasters against MVPDs, a major threat to the status quo has been averted: according to a blog posted on the FCC’s website by Chairman Tom Wheeler, the Commission has opted not to make any changes to the agency’s existing approach to resolving retrans disputes “at this time”. That leaves the less-than-specific “totality of the circumstances” standard in place. While greater specificity could conceivably have been a good thing for both sides, it could also have favored one over the other. Given the level of broadcaster opposition to change, the Chairman’s announcement can be viewed as a big win for broadcasters.

As we all know, when broadcasters and MVPDs negotiate retrans deals, they are required to act in “good faith”. When one side believes the other is not doing so, it can complain to the FCC, which then assesses the parties’ respective conduct under a “totality of the circumstances” standard. Cable and satellite operators have for some time now been pressuring the Commission, as well as Congress, to make changes to the retransmission consent regime.

As we reported when it happened, in 2014 Congress directed the FCC to “review” the “totality of the circumstances” standard. In 2015 the Commission duly opened a rulemaking proceeding to that end, asking a wide range of questions about the types of conduct that might be deemed to demonstrate “bad faith”. As we reported, interested parties (mostly MVPDs) identified a large number of behaviors that they thought should constitute per se bad faith. Those included “bundling” of additional channels with a local broadcast station, and preventing online access to programming during retransmission consent disputes – i.e., behaviors used by broadcasters. Determination that such conduct should be deemed per se indicative of “bad faith” would have seriously diminished broadcasters’ negotiating position.

But according to Wheeler, the record developed in the proceeding didn’t justify adoption of any new rules directed at any specific negotiating practices. Continue Reading

EWW, SSA, SSW: New EAS Event Codes Added

While supporting the decision, Commissioner O’Rielly criticizes FCC’s “cost/benefit” analysis

In what four out of five FCC Commissioners seem to view as a no-brainer, the Emergency Alert System just got three more event codes and two slightly-revised geographic location codes. The odd man out? Commissioner O’Rielly. He doesn’t question the potential utility of the new/revised codes, but he does take issue with the cost/benefit analysis endorsed by his colleagues. We’ll get to that shortly.

The three new event codes are EWW, SSA and SSW, which stand for “Extreme Wind Warning”, “Storm Surge Watch” and “Storm Surge Warning”, respectively. We all know by now that event codes are elements included in the message issued when an authorized official initiates an EAS alert. The several dozen specific codes mandated by the FCC – you can find them in Section 11.31(e) of the rules – range from “Avalanche Watch” through “Volcano Warning” and on to “Winter Storm Watch”, and include three separate hurricane-related codes.

According to the National Weather Service, however, the three hurricane-related event codes already on the books – i.e., HUW (for Hurricane Warning), HUA (for Hurricane Watch) and HLS (for Hurricane Statement) – only “apply generally to the hurricane event itself, and are not specifically tailored to warn of extreme sustained surface winds associated with a Category 3 (or greater) hurricane.” Hence, in the NWS’s view, additional, more narrowly-defined, event codes are called for to permit officials to provide more accurate warnings.

Historically, NWS had improvised a bit, using the Tornado Warning heading to advise of high winds associated with Hurricane Charlie in 2004 – but that caused confusion among the public and led to “the dissemination of incorrect risk-avoidance advice”. Since 2007 NWS has been using the EWW code in connection with its own weather alert radio system warnings. But EAS participants have been reluctant to add that particular code to their systems because the FCC hadn’t blessed it by including it in the rules.

Now we can consider it blessed, along with SSA and SSW. Continue Reading

Pursestrings 2016: New Application Fee Schedule Announced

Normally non-controversial biennial action spiced up this year by partial dissent from Commissioner O’Rielly

Thanks to Congress, the FCC has got to charge application fees and, also thanks to Congress, those fees have got to be adjusted every two years in light of changes in the Consumer Price Index. The last time the Commission tweaked its application fee schedule was 2014. If you do the math, you won’t be surprised to learn that we’re due for another adjustment.

Sure enough, the FCC has lifted the curtain on a revised application fee schedule. And there’s reasonably good news to report. Thanks to recent economic trends, this year’s adjustment is hardly worth mentioning: a 1.8% across-the-board increase. Sure, it’s a 1.8% increase, but it’s nowhere near the 8% increase we saw in 2014, the nearly 5% bump announced in 2008, or even the 3% or so increase adopted in 2011. So let’s not be looking this gift horse in the mouth.

The new fees won’t kick in until 30 days after the FCC’s order shows up in the Federal Register. In other words, you’ve got some time to prepare and file applications and still take advantage of the current fee schedule. Check back here for updates about the effective date of the new fees.

Usually, the announcement of a new application fee schedule is about as non-controversial as an FCC order gets. That’s because the FCC has very little say in the matter: Congress has dictated how the fees are to be adjusted every couple of years, and Congress even went so far as to preclude any judicial review of adjustments once they are made. But this year Commissioner O’Rielly has injected some buzz into the biennial ritual by dissenting in part from the Commission’s bare-bones order (which consists of just one page of text, slightly less than O’Rielly’s separate statement). Continue Reading

Convention-al Wisdom: Auxiliary Frequency Coordination Provisions for Political Confabs Announced

FCC takes steps in anticipation of extensive auxiliary operation at upcoming conventions, inauguration

It looks like Louis Libin won’t be getting much time off this month, or next January either, for that matter.

That’s because he has been designated as the single point of contact for frequency coordination operations under Section 74.24 at (deep breath, please) the Republican National Convention, and the Democratic National Convention, and the Presidential Inauguration.

Coverage of confabs like the conventions and the inauguration generally entails extensive use of frequencies licensed for the broadcast auxiliary services (BAS) under Part 74 of the FCC’s rules. Use of all those licensed devices has got to be coordinated in any event. But coordination is further complicated by the fact that the BAS rules (Section 74.24, to be exact) permit the temporary, unlicensed use of BAS frequencies by eligible broadcasters for up to 720 hours per year. That gives rise to the possibility of scads of short-term unlicensed operations vying for scarce BAS spectrum with scads of licensed operations. Hence, the importance of identifying a single authority in charge of insuring that all unlicensed, short-term operations play nicely with one another and with their licensed confrères in the high-pressure, congested-spectrum environment of these three high-profile events.

To reduce the potential for chaos, the FCC has – at the request of ElectionWireless2017, an ad hoc frequency coordination group established by the broadcast networks – directed that all short-term auxiliary broadcast use under Part 74 in the designated areas, without exception, shall be coordinated in advance through Mr. Libin. (The local frequency coordinator will provide assistance and database access to all local and non-local folks licensed under Parts 74, 78 and 101 and authorized to share Part 74 spectrum in the designated areas for temporary fixed, mobile and portable operations.) The “designated areas” include, for terrestrial auxiliary broadcast frequency use, the area within 100 kilometer radius of the following locations during the dates indicated: Continue Reading

FCC Forfeiture Limits Increased Across the Board

Keeping up with the cost-of-living …

moneybag-1If you happened to feel a vague, somewhat disturbing, shudder recently, don’t worry: it was just the upper limit of potential FCC fines being raised across the board. By Order effective July 1, 2016 (or maybe August 1 – we’ll get to that), the Commission followed up on a Congressional directive to factor in a cost-of-living increase for the various maximum penalties listed in various places in the Communications Act. If you hadn’t guessed, the goal is to deter you and others from violating the Act and the FCC’s various rules, orders and instruments of authorization. 

Note that this does not change the specific base-line fines for particular rule violations listed in the Commission’s rules. Rather, it alters only the maximum possible penalties for such violations. As a result, for example, previously a broadcaster found guilty of violating any of the rules or the terms of its authorization could get whacked no more than $25,000 per violation, with a total cap of $250,000 for any continuing violation. But now, thanks to the FCC’s recent order, those numbers have jumped to $47,340 and $473,402, respectively. Perhaps more daunting, the maximum penalty for a broadcast indecency violation – already steep at the original level of $325,000 per violation (capped at $3,000,000 for a continuing violation) – is now $383,038 per, with a new overall cap of $3,535,740. 

Common carrier and other non-broadcast maximum fines will increase as well. If these might affect you, check the order linked above.  Continue Reading

FAA Adopts Operating Rules for Commercial UAS Use

New rules set stage for next phase of UAS operation in U.S. skies

The wait is over: nine months after a Congressionally-mandated deadline, the FAA has finally issued rules for the commercial operation of small unmanned aircraft systems (UAS, known familiarly as “drones”) in the U.S. National Airspace System (NAS). The Order – which officially takes effect as of August 29, 2016 – adds a new Part 107 to the FAA’s regulations to “allow for routine civil operation of small UAS in the NAS and to provide safety rules for those operations”. The following is a brief summary of Part 107’s requirements. (Important caveat: The new rules do not apply to either (a) the increasingly ubiquitous, noncommercial, hobbyist UAS users or (b) large UAS (i.e., UAS weighing 55 pounds or more). They also do not apply to UAS owned and operated by federal, state or local governments, as long as their use is not “commercial”.)

Many readers may recall that last year the FAA adopted a process – known as the Section 333 Exemption process – to serve as an interim means for regulating commercial UAS use while the new rules were being developed. The new Part 107 constitutes those new rules. As a result, for the most part, the Section 333 Exemption process is no longer necessary. BUT, as discussed below, 333 authorizations remain in effect for their duration, and Part 107 provides for waivers similar to the Section 333 Exemption process. And, of course, under Section 333, the FAA can continue to grant permission to even more expansive operations if it so chooses

Under Part 107, those who wish to use UAS commercially will need to: (a) meet a long list of operating requirements that mirror the requirements imposed in the Section 333 Exemptions; (b) use a pilot holding a new authorization dubbed a “Remote Pilot in Command” certificate; and (c) register and mark their aircraft. Continue Reading

Moving to the Cloud? Some Tips on Negotiating the Deal

Despite what your Cloud provider may suggest, there’s room for you to negotiate – and plenty of reasons to do so.

cloud service sign-1Have you been thinking about moving some, maybe all, of your services or data to the Cloud? The push to get you to do just that is on, spurred by Amazon, Google and various other providers whose advertising is designed to convince us all that Cloud-based operations are an essential element of any sane 21st Century business.

They may be right – but what they often don’t tell you is that their Cloud Customers (i.e., possibly, you) can put themselves at substantial legal and business risk by signing on to the boilerplate, provider-friendly service agreement drafted by, and for the benefit of, the provider. Such agreements invariably include vendor-favoring provisions that can and should be modified through negotiation.

This is a matter of particular concern for broadcasters, telecommunications companies and other businesses operating in a regulated environment. Provider-friendly service provisions can, and often do, hinder – and possibly prevent – the Cloud Customer from complying with regulatory and other legal requirements to which they are subject. At a minimum, prospective Cloud Customers should conduct an initial review of all Cloud-related contract documents to identify and mitigate, to the extent practicable, such potential problems.

The following is intended to provide a cautionary glimpse of key issues and pitfalls businesses face when negotiating contracts for Cloud services. Continue Reading

FCC Un-Restricts Restricted Bands for More Experimental Licenses

Sensitive frequencies now available to companies developing medical devices.

A small fraction of frequency bands need extraordinary protection from radio interference. Some, like those used for radio astronomy, depend on extremely sensitive receivers. Others carry signals essential to safety, like search-and rescue bands and GPS, which helps to land airplanes as well as to find pizza in a strange city.

The FCC’s licensing regime protects these bands from high-powered transmitters. But as unlicensed transmission sources – which now include Wi-Fi, Bluetooth, car-door openers, and thousands more – began to proliferate in the 1980s, they posed a threat. These devices can be used by anybody anywhere, including locations where they might cause interference.

The FCC sat down with the National Telecommunications and Information Administration, which administers spectrum use by government agencies, and together they drew up a list of about 40 bands potentially vulnerable to unlicensed radios. See the list here. The FCC calls them “restricted bands.” It adopted a rule requiring manufacturers to ensure that transmitting devices marketed for unlicensed use cannot operate on any of them.

Problem solved.

But only temporarily. Continue Reading