Major Changes in the Works on the Business Data Services (a/k/a Special Access Services) Front

Investigation of BDS tariff provisions, further data analysis lead to new standards and a proposed new regulatory regime

david-goliathThe market for special access service – also known by some (including the FCC) as “business data services” or “BDS” – is under the Commission’s regulatory microscope. In a sprawling, two-pronged decision, the FCC has (a) ordered the four largest BDS providers (among incumbent local exchange carriers, a/k/a ILECs) to revise their tariffs in significant respects and (b) proposed a new regulatory regime for BDS. The massive 288-page “Tariff Investigation Order and Further Notice of Proposed Rulemaking” arises from complaints raised by competitive local exchange carriers (CLECs) and other customers of special access service.

By way of background, BDS involves the dedicated point-to-point transmission of data at certain guaranteed speeds and service levels using high-capacity connections. It is used to create private or virtual private networks across a wide geographic area, and to enable the secure and reliable transfer of data between locations. For example, point-to-point BDS lines can provide dedicated access to the Internet and access to innovative broadband services; mobile wireless providers purchase BDS to backhaul voice and data traffic from cell sites to their mobile telephone switching offices. Carriers also utilize BDS to deliver their own customized, advanced service offerings to end users.

As noted, the FCC’s order has two distinct components. Continue Reading

Update: Effective Dates, Reconsideration/Appeal Deadlines Set in Lifeline Overhaul

Just last week we reported on the FCC’s overhaul of the Lifeline program. The Commission’s sweeping decision has now been published in the Federal Register. As frequent visitors here know, that publication does a couple of things.

First, it sets the effective date for some, but by no means all, of the new rules. That date is June 23, 2016. But heads up. The following new or revised rules will not take effect that day: §§54.101, 54.202(a)(6), (d), and (e), 54.205(c), 54.401(a)(2), (b), (c), and (f), 54.403(a), 54.405(e)(1) and (e)(3) through (5), 54.407(a), (c)(2), and (d), 54.408, 54.409(a)(2), 54.410(b) through (h), 54.411, 54.416(a)(3), 54.420(b), and 54.422(b)(3). That, of course, is thanks to our old friend, the hilariously-named Paperwork Reduction Act. Since the listed sections all involve new or revised “information collections”, they have to be run past the Office of Management and Budget for its review before the FCC can start to use them.

Second, Federal Register publication establishes the dates for seeking reconsideration (by the FCC) or judicial review (by a federal appeals court) of the Commission’s decision. Petitions for reconsideration may be filed with the FCC by June 23, 2016, and petitions for review may be filed with your favorite federal court of appeals by July 25. (As always, would-be appellants with their hearts set on a particular circuit should jump through the proper hoops, as described in this notice from the General Counsel’s office. Spoiler alert: Those hoops require filing the petition for review way earlier than the outside July 25 deadline.)

Want Unlicensed? Tell It To The Hill

Congress increasingly focused on dictating spectrum use.

capitol-unlicensed search-1If you have your eye on some spectrum for a particular use, you’d likely go to the FCC and participate in a rulemaking proceeding, or perhaps initiate one, proposing that the rules be revised to specify that your preferred spectrum could be used for your preferred use. Maybe others would object, maybe they wouldn’t. (Who are we kidding? Someone most certainly would.) But in the end, the Commission would determine whether, and how, to modify its spectrum allocations.

Increasingly, however, the FCC’s ability to do this is shaped by Congress. Take, for example, the 2015 rulemaking involving the future use of the 600 MHz band. The Commission was not writing on a blank slate. To the contrary, its approach had largely been determined five years earlier – by Congress. The 2010 Spectrum Act dictated that unlicensed uses had to be accommodated, but only in spectrum designated as “white spaces” and guard bands. Moreover, unlicensed operation in the guard bands would be permitted only when it “would not cause harmful interference to licensed services.” Working within these Congressionally-imposed limits, the Commission worked out specific technical rules for unlicensed use by both white space devices and unlicensed wireless microphones. But it wasn’t a pretty process, as evidenced by the fact that ten separate petitions seeking reconsideration of one or more aspects of the decision are currently pending.

Now, while the FCC may have more than 75 years of experience with spectrum allocations, in our overall governmental organization Congress out-ranks the FCC. So if Congress wants to tell the FCC which spectrum can be put to which uses, the FCC must comply with Congress’s dictates. For entrepreneurs looking to stake their claim to certain spectrum, that means that Congress, rather than the FCC, may be the place to go. Continue Reading

And the NSMA Fellow Award Goes To …

FHH lawyer and CommLawBlog contributor Mitchell Lazarus recognized

The National Spectrum Management Association (NSMA) is an organization of “like minded individuals who take spectrum and regulatory issues very seriously.” Many of its members have been in the spectrum business for decades. Proper stewardship of the spectrum, says their website, is not just “their job but it’s also their avocation and their baby.” When it comes to spectrum management, these folks are the real deal.

So we are extremely pleased and proud to advise our readers that NSMA has recognized FHH’s own Mitchell Lazarus with the 2015 NSMA Fellow Award for his “selfless contributions to the promotion of the efficient use and management of the wireless telecommunications frequency spectrum.”

The award was presented only recently because, as readers may recall, at the time of last year’s NSMA annual meeting in May, 2015, Mitch was dealing with cancer treatment. Happily for all concerned, that treatment was successful and he is with us, both to accept the award and to continue those same selfless contributions for which NSMA honored him.

And, to state the obvious, all the rest of us who have long shared space with Mitch down here in the CommLawBlog bunker heartily join with NSMA in its salute to him.

Update: Access Instructions for First-Time OPIF Users

We recently reported on the FCC’s announcement of the availability – for introductory test purposes – of the soon-to-be-mandatory Online Public Inspection File (OPIF) system that it has developed. The new test site, launched by the Commission as of May 12, is intended to let all newbies to the online public file world get familiar with the process. (That universe includes satellite TV (DBS) and radio (SDARS) distributors, most cable operators with 1,000 or more subscribers, and the first batch or radio broadcasters.) The test site will also permit TV veterans to check out the new system, which is said to be functionally similar to the one they’re used to, but different in a number of respects (including the interface). To get to the test site, click on this link.

But there was a problem. Continue Reading

FCC Overhauls Lifeline Program

Faster, simpler, cheaper process, but no greater support

The federal Lifeline program – a program overseen by the FCC and originally designed to provide subsidized phone service to low-income households – has never been a model of efficiency or consistency. Four years ago the Commission tried to tighten things up on the Lifeline front. And now the FCC has taken dramatic steps to overhaul the program.

In a sweeping 163-page decision (not counting another 60 or so pages of appendices and separate statements), the Commission has decided to: open the Lifeline program to many more carriers; simplify the certification process; reduce the burdens and risks on participating carriers; and reduce the fraud and abuse which has plagued the system from the beginning. The only thing it didn’t do was to raise the subsidy that is paid per participating subscriber. Continue Reading

2016 Regulatory Fees Proposed: Larger Market TV Fees Going Up, Most Radio Fees Heading Down

If it’s May, it must be time for  proposed regulatory fees – and sure enough, here they are! In a Notice of Proposed Rulemaking (NPRM), the FCC has got the ball rolling down the road that, for many regulatees, will lead us to a payment deadline sometime in September (or maybe August, but don’t count on it) by which they’ll have to cough up their annual tribute to the FCC.

While the final figures (usually announced in July or early August) may vary here and there from the proposed fees, generally any changes can be expected to be minor. Still, the NPRM gives one and all an opportunity to comment on the proposals before they get etched in stone (although many may question the utility of trying to sway the Commission on the fee front).

For TV folks, the proposed fees reflect a certain amount of jiggering designed to conform to “the traditional determination that Top 10 stations should pay about twice what stations in markets 26-50 pay.” As a result, fees for VHF and UHF TV licensees in the Top 10 markets are proposed to shoot up by nearly 30% (from $46,825 to $60,775). Market 11-25 licensees are looking at a more modest 6% rate (from $43,000 to $45,750), while those in Markets 26-50 are set to come in at just less than 11% more than last year (from $27,625 to $30,575). Stations in markets below No. 100 will also be looking at a modest 3% increase (from $4,850 to $5,000).

The winners on the TV side will be stations in Markets 51-100, who are set to see a more than 6% reduction, from $16.275 to $15,225.

The full table of proposed TV fees looks like this: Continue Reading

Update: Reconsideration of New Ownership Reporting Requirements Sought

The saga of the FCC’s quest to devise the Perfect Ownership Report slogs on. Readers will recall that, back in January, the Commission adopted a new approach to identifying individual attributable owners for tracking purposes across reports (so long, SUFRN; hello, RUFRN!). Also, among other changes, noncommercial educational licensees were advised that they, too, would be having to identify their attributable principals individually.

While the new rules were published in the Federal Register four months later, they haven’t really taken effect across the board (as we explained last month). And now comes word that four petitions for reconsideration of various aspects of the new rules have been filed. The petitioners:

Probably not surprisingly, all of the petitions express concern about the need for, propriety of, and/or mechanics for satisfying the requirement of individual identification (by FRN or RUFRN) of folks sitting on NCE governing boards.

The FCC has now published a notice of the filing of these petitions in the Federal Register, which sets the deadlines for comments/oppositions and replies relative to any or all of the petitions. Comments or oppositions must be filed by June 2, 2016; replies are due by June 13. Submit your pleading at this FCC website; enter Proceeding Numbers 07-294, 10-103 and 10-234.

Time to Test Drive the New and Improved Online Public File System!

“Local” no more – as of June 24, new “OPIF” will be up and running … but a demo can – AND SHOULD – be checked out NOW

Last January we reported on the FCC’s decision to expand its online public inspection file (now officially referred to as “OPIF”) requirement to include radio broadcasters, cable operators and satellite radio and TV operators, too. And now, according to the Commission, the system is ready for prime time: it’s officially available for testing now, and as of June 24, 2016, the first group subject to the expanded requirements will have to start to upload items. If you’re in that group and you haven’t had to deal with the joys of maintaining an online public inspection file up to now, be prepared: it takes some getting used to.

And all you TV licensees who may think that you already know the ropes – you’ve got another think coming. As of June 24, you’ll have to use the OPIF, and not the “online broadcast public inspection file” (or, as the FCC refers to it, the “BPIF”) that you’ve been using (although the FCC will take care of transferring your existing BPIF materials over the OPIF as of June 24). The Commission’s new OPIF system is a considerable expansion of the old BPIF. According to the FCC, the BPIF is “virtually identical” to the new and improved OPIF – BUT the FCC concedes that there are “some differences in the look and feel of the OPIF database”. In other words, even if it performs the same functions as the BPIF, the OPIF is a different animal in a number of respects. Continue Reading