CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

Internet expert returns to co-head Internet Law and Policy Group.

Fletcher Heald & Hildreth, P.L.C. is pleased to welcome Kathy Kleiman back into the FHH fold.  Kathy was an associate with the firm in the 1990s, but she left to explore the then-just-developing world of Internet Law (but not before she had co-founded the firm’s Internet Law Group, one of the first of its kind).  She now returns as FHH’s Internet Counsel to co-lead its Internet Law and Policy Group. 

To say Kathy is well-suited for the job is an understatement.  She helped found the Internet Corporation for Assigned Names and Numbers (ICANN), the organization that coordinates the domain name system without which the Internet wouldn’t be the Internet.  Kathy was a key drafter of the domain name dispute policy everyone uses today, and an editor of many sections of the rules governing new top-level domains.  She has traveled to ICANN meetings in more than a dozen countries on six continents and spoken on Internet Free Speech, intellectual property protections, fair use, privacy and due process around the world.

Kathy is Beantown-educated – Harvard undergrad, BU law (both with honors, thank you very much).  She currently lives in Falls Church, Virginia, where she dabbles in community leadership and politics when she’s not tending to her two kids.  In what passes for free time chez Kleiman, she is also producing a documentary about the six women who programmed ENIAC, the world’s first modern computer, and thus founded the field of modern programming. (Want to know more about Kathy’s background? Check out her extensive résumé here.)

Kathy will be working with clients on a wide range of projects relating to: domain name conflicts; challenges and opportunities likely to be encountered in connection with new top level domains; website protections; and Free Speech and intellectual property issues in the Internet age.  And, if the Blogmeister has anything to say about it, she’ll be a regular contributor here.

She can be reached at 703-812-0476, by email at Kleiman@fhhlaw.com, or at Skype ID Kathy.kleiman.

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[Blogmeister’s Note: In January Fletcher, Heald & Hildreth welcomed Robert Butler into the fold. Bob – whose extensive bio can be checked out here – has decades of experience in telecom contracting, the fine art of identifying a client’s telecom needs and negotiating to secure the capacity and services to meet those needs without (a) over-buying (i.e., ending up with more services or capacity than you want), (b) under-buying (i.e., getting less than what you really need), (c) over-paying, or (d) exposing yourself to unnecessary potential liabilities. Bob has graciously put together a set of tips that any party looking to deal with a telecom provider should keep in mind. The following -- which presents the first two of Bob's Top Ten Tips -- is the first of five installments.]

Buying telecommunications and related services presents a different kind of contracting challenge.  Such services are, of course, absolutely essential in the modern marketplace. But successfully arranging for just the right services is a far cry from buying paper clips at Office Depot.

Start with the expanding universe of constantly developing high tech products available, all swimming in a dense alphabet soup of acronyms – VANs/WANs, VPNs, VOIP, ISDN, DSL, ATM, MPLS, DS1s, 2s, and 3s, OC-1/10s, etc. Recognize that those products include a mix of regulated and unregulated offerings. Throw in the reality that many routine transactional documents often still include (at least in the initial go-round) contractual artifacts from a long gone monopoly era. Appreciate the fact that one’s particular situation often demands unique contractual provisions addressing specialized needs or concerns. And don’t forget the importance of minimizing exposure to liability that could arise from myriad potential worst case scenarios.

The bottom line is that a steady and experienced hand is indispensable to securing a customer-friendly deal. The following are prime examples of areas in which an experienced hand can and should assist anyone looking to arrange for telecom services.

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Meanwhile, FCC cranks up the Paperwork Reduction Act process

If you’re thinking about asking the FCC to reconsider its recent decision to move TV public files to an FCC-maintained cloud-based online system – or maybe if you’re more inclined to ask the courts to take a look at that decision – your deadlines for doing so have now been set. The Commission’s Second Report and Order, which we reported on last month, has now been published in the Federal Register. That means that (as dictated by Section 1.429 of the rules) petitions for reconsideration are due to be filed with the Commission no later than June 11, 2012.

On the other hand, thanks to 28 U.S.C. §2344, petitions for judicial review may be filed by July 10. Those can technically be filed with any of the federal courts of appeals, but heads up. If you’re hoping to have a particular circuit review the FCC’s order, you need to be mindful of the judicial lottery process and Section 1.13 of the rules. As implemented by the Commission, that process requires that, to be part of the judicial lottery, a petitioner has to file with the FCC’s General Counsel within 10 days of the Federal Register publication (in the case of the Second Report and Order in the public file proceeding, that would be May 21) a copy of its petition for review with the court of appeals of its choosing; that copy must bear a date/time stamp from that court proving that it was in fact filed. In other words, if you’re going to be picky about what circuit should hear the appeal, you’ve got to act much faster than the rules would otherwise allow.

This flurry of procedural dates does not, however, mean that the new public file rules are going to become effective in the immediate future. Before that can happen, the FCC has to run the new rules through the Paperwork Reduction Act (PRA) process, a process which the Commission has also just cranked up with a Federal Register notice. If you have any PRA-related thoughts to offer, you’ve got until June 11, 2012 to lob them in to the Commission. After that, the Commission will bundle up all the comments it receives and ship them over to the Office of Management and Budget, along with a supporting statement explaining why it think the new rules are consistent with the PRA. (The rules will then go into effect 30 days after the FCC announces in the Federal Register that OMB has approved the rules.  Check back here for updates on that score.)

By the way, according to the notice, PRA-related comments are supposed to address:

• whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility;
• the accuracy of the Commission's burden estimate;
• ways to enhance the quality, utility, and clarity of the information collected;
• ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and
• ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

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Announcement of OMB approval expected soon

If you’re planning on building a new tower, or significantly modifying an existing tower, in the foreseeable future, listen up. The Commission’s Wireless Telecommunications Bureau has issued a public notice laying out the new registration procedures that have been adopted (but not yet implemented) to provide pre-registration notice-and-comment opportunities relative to environmental considerations. We have previously reported on the new procedures; the public notice puts a little more meat on the procedural bones we have already described.

Who needs to worry about this? You do, if you’re:

planning to build any new tower that would have to registered through the FCC’s Antenna Structure Registration (ASR) system. The only exceptions are for (a) towers to be built on sites for which some other federal agency has responsibility for environmental review or (b) cases in which an emergency waiver has been granted.

modifying an existing registered tower by (a) increasing its overall height by more than 10% or 20 feet, or (b) adding lighting to a previously unlit structure, or (c) modifying existing lighting from a more preferred configuration to a less preferred configuration. (Helpful tip: the “most preferred” configuration is no lights at all; the least preferred is red steady lights. Anything else falls in the middle.)

amending a pending application involving either of the foregoing situations and the amendment would (a) change the type of structure, or (b) change the structure’s coordinates, or (c) increase the overall height of the structure or (d) change from a more preferred to a less preferred lighting configuration or (e) an Environmental Assessment is required.

If you’re in one of those categories, here’s what the Bureau will expect you to do once the new process takes effect.

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In its sprawling Report and Order and Further Notice of Proposed Rulemaking on the Universal Service Fund (USF) and Intercarrier Compensation, released last November, the Commission adopted (among a lot of other things) a number of changes to the various reporting requirements. Those requirements affected certain carriers, including competitive eligible telecommunications carriers (ETCs) and incumbent local exchange carriers. (Last December we described how many, but not all, of the extensive changes would affect wireless providers.)

Because many of the modified reporting requirements involved “information collections” subject to the Paperwork Reduction Act, they could not take effect right away. Rather, they had to be reviewed and approved by the Office of Management and Budget. That process has now been completed, according to a notice published in the Federal Register. As a result, a number of the rule changes adopted last fall have now become effective or applicable as of May 8, 2012.

The rules that have become effective are: Sections 54.312(b)(3); 54.313(b); 54.313(h); 54.314; and 54.320(b). The rules that have become applicable are: Sections 54.305(f); 54.307(b) and (c); and 54.313 (a)(1)-(a)(6).

Additionally, the Federal Register notice provides official notification to ETCs and other unspecified stakeholders that information required to be filed pursuant to Section 54.313(a)(2)-(6) and (h) must be filed by July 2, 2012.  Section 54.313 sets out the annual reporting requirements for high cost recipients.

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$300 million to be available for areas with poor broadband access

Following up on the landmark USF Order last fall in which it first adopted a plan to distribute Universal Service Fund money for broadband build-outs, the FCC has released a Public Notice setting out the basic ground rules for the “reverse auction” by which the money will be distributed. The Notice fills in some important gaps in how the whole process is supposed to work.  

As we have previously reported, the FCC is proceeding for the first time with an unusual reverse auction under which rights will be determined by the party which bids the lowest amount for the area in question.   In this case, carriers will be bidding to provide service to relatively high cost parts of the country provided they receive certain subsidies.   The company asking for the lowest subsidy to do the job will get the money and the attendant service obligation. Many of the key features of this auction remain subject to petitions for reconsideration, but the Wireless Bureau is nevertheless plunging forward to set the ground rules on the assumption that the auction will proceed largely as laid out in last fall’s USF Order.

In addition to the usual provisos, warnings, disclaimers, and notices that accompany every FCC auction, the Public Notice alerts us to the following:

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Commission adopts skeletal preliminary rules for sharing, but leaves plenty of important details to be worked out in future proceedings

And so it begins.

The Commission has adopted the first minimal rules paving the way for the repacking of the TV broadcast spectrum. The new rules are, at most, preliminary guide markers. In that respect they’re much like the seemingly inconsequential surveyor’s stakes that quietly appear as an early harbinger of the heavy-duty construction teams that will eventually re-shape the idyllic pastureland into a ten-lane highway. Like those surveyor’s stakes, they mark the beginning of a process that will likely lead to dramatic changes in the landscape.

As everyone by now knows, the Commission (with Congress’s clear support) is intent upon repurposing a substantial chunk of the spectrum currently used for over-the-air television broadcasting. The goal is to free up UHF spectrum for broadband use. The full technical details of how the FCC might hope to accomplish that have not been revealed (and may not even have been fully formulated as yet). But you’ve got to start somewhere, so the Commission has now taken its first step.

In its recent Report and Order (Channel Sharing Order), the Commission has opened the door – at least for the purposes of the incentive auctions that Congress has authorized – to permit channel-sharing by full-power and Class A TV licensees. (The Commission will consider channel sharing in non-auction contexts in a later rulemaking.) The channel-sharing concept, under which multiple TV licensees would share a single six MHz channel, arose a couple of years ago. It was also an integral component of the spectrum portion of the “Middle Class Tax Relief and Job Creation Act” (which the FCC refers to as the “Spectrum Act”) the Congress enacted last February. 

According to the new rules, when channel-sharing eventually becomes a reality, it will be subject to the following general considerations:

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Commission reverses decision released in January, 2012, but still defers further consideration of TTS technology

Back in January the Commission released its Fifth Report and Order (5th R&O) in its long-running effort to modernize the Emergency Alert System. Under the new rules (many of which became effective on April 23, 2012), EAS participants are required to be able to convert CAP-formatted EAS messages into messages that comply with the EAS Protocol requirements, following the procedures for such conversion as set forth in the EAS-CAP Industry Group (ECIG) Implementation Guide. 

One notable exception, though, involved the Guide’s provisions concerning text-to-speech (TTS) conversion. The Commission was not confident in the accuracy and reliability of current TTS technology. Additionally, the FCC figured that it might be preferable to require TTS conversion software to be utilized by the originators of EAS messages, rather than by EAS participants – the goal being to minimize the risk of “differing, and thus confusing” audio messages that might otherwise result.

Bottom line in January: the FCC mandated that TTS conversion would not be permitted, notwithstanding the ECIG Implementation Guide.

That decision was apparently news – and disappointing news, at that – to the FCC’s EAS regulatory partner, the Federal Emergency Management Agency (FEMA). FEMA fired off a petition for reconsideration, pointing out that, by prohibiting TTS conversion by EAS participants, the FCC was discouraging development of TTS technology. What’s worse, the lack of TTS conversion capability could “possibly disrupt dissemination of National Weather Service alerts, delay retrieval of referenced audio files in alerts, and impact the ability of jurisdictions with limited resources, or those with certain, already implemented CAP alerting capabilities, to issue CAP-formatted alerts.”

FEMA’s position was seconded by a number of state and local emergency management agencies, as well as the Commission’s own Communications Security, Reliability and Interoperability Council.

That was enough for the Commission. It has revised its rules to permit, but not require, EAS participants to follow the ECIG Implementation Guide with respect to TTS. In so doing, the FCC made clear that it was still not prepared to embrace the ECIG’s adoption of TTS software configured in EAS equipment to generate the audio portion of an EAS message; rather, consideration of that particular item has been deferred.

With the publication of the rule change in the Federal Register, that change takes effect May 7, 2012.

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The FCC has performed that annual rite of spring – its announcement of proposed regulatory fees for 2012. These are the reg fees that, for the vast majority of Commission regulatees, will be due and payable by a to-be-announced date (probably sometime in August or September). As with most ritual activities, there are no real surprises here: the rates are, with very few exceptions, proposed to go up. 

In general, the Commission figures that broadcast-related reg fees should get bumped up between 4-7% or thereabouts, depending on the type of facility in question and the market in which it’s located. There are some exceptions, though. For example, commercial VHF TV stations in Markets 51-100 would enjoy a nearly 9% reduction (amounting to $2,205) compared to last year’s fee, if the FCC’s proposal holds. And fees for UHF stations in Markets 11-25 would drop $1,000 (about 3%) from last year’s levels.

We’re attaching a grid providing the proposed 2012 fees along with some comparative information showing the changes from the fees actually imposed last year. (Red entries reflect 2012 fees that would go up over last year’s fees; the small handful of green entries reflect fees that would go down this year.)

As always, the Commission is giving everybody a chance to comment on the proposed fees. If you’ve got something to say about the proposals, you’ve got until May 31, 2012 to file comment with the Commission. Reply comments may be filed until June 7. 

Over and above the fees themselves, this year’s Notice of Proposed Rulemaking (NPRM) contains a couple of elements of interest.

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If you don’t think you can meet the January 1, 2013 deadline, NOW is the time to ask for a waiver.

Do you operate a commercial or public safety private land mobile radio system in the VHF (150-170 MHz) or UHF (450-470 MHz) bands?  If so, you must convert your systems to “narrowband” operation by January 1, 2013.  If you don’t, you face the possibility of interference from other users, FCC fines, or losing your license.  If you can’t make the switch by the deadline, now is the time to seek a waiver from the FCC to ask for an extension

Licensees have been on notice for about ten years of the impending narrowbanding deadline.  Most radios purchased since the late 1990s already have narrowband capability (i.e., they operate on 12.5 kHz channels or equivalent efficiency) and only need to be reprogrammed.  However, most older radios are destined for the trash heap.

The FCC will entertain requests for temporary waivers of the deadline.  Last year, the FCC spelled out what it wants to see in a waiver request, including reasons why the licensee cannot meet the deadline, its funding requirements, a description of what steps have been taken so far to comply, a schedule of work that must still be completed, and evidence that the delay will not harm other licensees in the region.

Until last week, land mobile radio licensees in the so-called “T-Band” (470-512 MHz) were also subject to the narrowband deadline (broadcasting industry readers may recognize the band as the home of TV channels 14-20, which is shared with land mobile radio in 11 major metropolitan areas).  However, since Congress has now mandated that spectrum occupied by public safety licenses in the T-Band be auctioned within nine years, the FCC relieved all licensees in that band of any narrowbanding obligations.  On the flip side, the FCC also imposed a freeze on applications for new T-Band systems and certain modifications to existing systems.  In a nutshell, the freeze bars any modifications that would expand the service area of a T-band system; it does not preclude adding units to existing systems or making other changes that do not expand the system’s service area.

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Last month we reported that effective dates for some, but not all, of the rules revised as part of the Commission’s reform of its Lifeline program had been set. It looks like the effective dates of the rest have now also been set, although the Commission’s own Federal Register notices concerning those dates leave at least some room for doubt.

The Lifeline reforms were adopted back in February. In a Federal Register notice published in March, the Commission announced that Sections 54.411, 54.412, 54.413 and 54.414 were to take effect April 1, 2012 and Section 54.409 will take effect June 1. No problem there. But it then said that Sections 54.202(a), 54.401(c), 54.403, 54.407, 54.410, 54.416, 54.417, 54.420 and 54.222 wouldn’t kick in until after the Office of Management and Budget (OMB) had given them the Paperwork Reduction Act once-over.

According to the latest Federal Register notice, OMB has completed its review and given its thumbs up. So the FCC has announced that Sections 54.202(a), 54.401(d), 54.403, 54.405(c), 54.407, 54.416, 54.417, 54.420(b), and 54.422 have become effective as of May 1, 2012, while Section 54.410(a)-(f) will take effect June 1, 2012.

Careful readers will note a couple of minor discrepancies between the March notice and the most recent. Where the March notice referred to Section 54.401(c), the April notice refers to Section 54.401(d). Also, the April notice indicates that Section 405(c) is among the sections taking effect on May 1. But that particular section wasn’t among those listed in the March notice. And, in the most recent notice, the Commission mentions, pretty much in passing and without explanation, that it has also removed certain provisions (in particular, the temporary address confirmation and recertification requirements set forth in Section 54.410(g), the chunk of Section 54.405(e)(4) relating to temporary address de-enrollment, and the biennial audit requirements of Section 54.420(a)).  It's not clear what that means. The rules have, after all, been formally adopted by the Commission and are therefore technically in the books, but if OMB hasn't signed off on them (which appears to be the case), they can't become effective.  So they'll presumably just be dead wood in the rule book, at least for the time being.   

These discrepancies, though, may be relatively minor, particularly given the enormity of the changes the Commission is making to the overall Lifeline program. Look for the Commission to tie up any loose ends eventually.

One final observation.  While the standard OMB approval extends for three years, this OMB approval is for a paltry six months.  That means the FCC will be back knocking on OMB's door before you know it.  Interestingly, the FCC asked OMB to act on this particular request on an emergency basis.  What was the emergency?  According to the FCC:  “The Commission has set a budget target to eliminate $200 million in waste in 2012, which is dependent on certain rules going into effect as soon as possible.” Ah, a self-created emergency. We can't wait to see what they come up with in six months.

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FCC to host all TV public files in the cloud, once it figures out how to host all TV public files in the cloud

Coming soon to an Internet near you (well, maybe not that soon)!!!  The public files of every U.S. TV station, commercial and noncommercial, all hosted on a cloud-based system that the Commission promises to develop and manage. And radio and MVPD operators can probably expect that they, too, will eventually be required to make their public files available on the same system. In the latest possible culmination of a proceeding that has already lasted more than a decade, the FCC, turning a deaf ear to most of the objections of the broadcast industry, has directed television licensees to upload big chunks of their public files to a yet-to-be revealed web portal the FCC will host.

“Possible” culmination? Well, yes. Those familiar with the recent history of the public file requirement will recall that, in 2007, the Commission mandated that TV public files be made available online. But the Commission never jumped through the hoops that would have been necessary to translate that mandate into regulatory reality. Will this latest effort produce different results? It’s hard to say. The Commission sure seems serious about it, but there are a number of practical problems that could gum up the works, at least in the short term.

For background on the move to make public files Internet-accessible, check out this post from last October. The rules which the Commission has now adopted vary somewhat from the proposal described there, but the core requirements are pretty much the same. In short, TV public files are moving to the Internet (although some vestiges of the old-fashioned paper filing will remain.)

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Unlicensed device users at 902-928 MHz challenge LMS provider Progeny’s test results.

We reported back in February about a licensed service provider being required to demonstrate that its operation would not cause unacceptable interference to unlicensed devices. This is unusual. The FCC rules ordinarily require an unlicensed device to accept any and all interference from any source. But certain technologies used in the licensed Location and Monitoring Service (LMS) at 902-928 MHz are uniquely subject to a reversal of the usual priority. Those LMS licensees must demonstrate through actual field tests that their systems do not interfere with unlicensed devices.

When the FCC recently granted a technical waiver to LMS provider Progeny, it specifically required field tests to show that the waivered system does not cause unacceptable levels of interference to unlicensed devices in the same band. Among the thousands of unlicensed applications in the band, the FCC mentioned “smart grid” applications, including remote meter reading and utility load management, as well as cordless telephones and wireless local area networks. Other unlicensed uses of the band include wireless Internet access, ZigBee industrial controls, and a vast host of wireless consumer devices.

Progeny has since filed its test report. But commercial users of unlicensed devices have come forward to criticize the study. (Consumer devices, such as cordless phones, may have a similar potential for interference, but so far consumers and their advocates have remained silent.) Progeny, the commercial users say, used too few unlicensed devices, the devices Progeny used were non-representative, and the conditions used in the testing were artificially rigged to understate interference. Samples of such critical comments may be read here, here, and here. Progeny, needless to say, disagrees with its critics.  (Interested readers may find the entire FCC docket by searching for Docket No. 11-49 at the FCC’s ECFS webpage.)

Although the comment cycle on Progeny’s test report has officially closed, the FCC is accepting ex parte filings. But not for long; we expect a decision soon. Those interested in either challenging or supporting Progeny’s test results should do so promptly.

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FCC seeks comment on unlicensed operation in three bands.

The FCC’s Further Notice of Proposed Rulemaking on outdoor and in-tank radars in the 5.925-7.250, 24.05-29, and 75-85 GHz bands has now appeared in the Federal Register. As regular readers realize, that establishes the official deadlines for anyone wishing to chip in their two cents’ worth.  Comments are due on May 30, 2012 and reply comments on June 29.

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